AGREEMENT
Exhibit 10.2
AGREEMENT dated as of the 8th day of
July, 2009, by and among Seneca Foods Corporation, a New York corporation (the
"Company"), Xxxx Xxxxx Strategic Investments, L.P., a Delaware limited
partnership, Xxxxx Xxxxx and Xxxxxxxx Xxxx ( all such parties, other than the
Company, referred to herein as the "Original Selling Shareholders"), Xxxx Xxxxx
Strategic Investments III, L.P., Xxxxx Xxxxx 2003 GRAT, Xxxxx Xxxxx 2009
CMS-GRAT, Xxxxxxx Xxxxx, Xxxx and Xxxxx Xxxxxxx, Xxxxxx and Xxxxx Xxxx, Xxxxx
Xxxx, Xxxxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxx Xxxxxx, Xxxxxxx Xxxx, Xxxx Xxxxxxx Life
Insurance Company and Xxxx Xxxxxxx Variable Life Insurance Company (all such
parties, other than the Original Selling Shareholders, referred to herein as the
"Additional Selling Shareholders" and, together with the Original Selling
Shareholders, the "Selling Shareholders").
RECITALS:
A. The
Company, the Original Selling Shareholders, Uranus Fund, Ltd., CMCO, Inc., Xxxxx
X. Xxxxx and Xxxx Xxxxx Strategic Investments II LP previously entered into a
Registration Rights Agreement, dated as of June 22, 1998 (the "RR
Agreement");
B. The
Company and the Original Selling Shareholders are the only remaining parties to
the RR Agreement;
C. The
Original Selling Shareholders have requested that the Company (i) effect the
registration under the Securities Act of the Original Selling Shareholders'
"Owned Shares" (as defined below) in connection with the proposed Secondary
Offering (as defined below) and (ii) permit the Additional Selling Shareholders
to also effect the registration under the Securities Act of the Additional
Selling Shareholders' "Additional Owned Shares" (as defined below) in connection
with the proposed Secondary Offering; and
D. The
parties hereto have agreed to various provisions as set forth below concerning
their respective rights and obligations under the RR Agreement and this
Agreement in connection with such proposed Secondary Offering.
TERMS OF
AGREEMENT:
NOW, THEREFORE, in consideration of the
premises and other good and valid consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Any
capitalized term used but not defined herein shall have the meaning given
thereto as set forth in the RR Agreement.
2.
(a) Each
Original Selling Shareholder confirms to the Company that such Selling
Shareholder is the owner of the shares of the various classes or series of
classes of the Company's stock set forth on Schedule A hereto (such shares owned
by each applicable Original Selling Shareholder referred to herein as the "Owned
Shares"), and that such Original Selling Shareholder does not own or control,
and will not own or control as of the date of the consummation of the Secondary
Offering, any other shares of the classes or series of classes of the Company's
stock set forth on Schedule A, other than such Original Selling Shareholder's
Owned Shares.
(b) Each
Additional Selling Shareholder confirms to the Company that such Additional
Selling Shareholder is the beneficial owner of the shares of the various classes
or series of classes of the Company's stock set forth on Schedule B hereto (such
shares owned by each applicable Additional Selling Shareholder referred to
herein as the "Additional Owned Shares"), and that such Additional Selling
Shareholder (other than Xxxx Xxxxxxx Life Insurance Company and Xxxx Xxxxxxx
Variable Life Insurance Company) does not own or control, and will not own or
control as of the date of the consummation of the Secondary Offering, any other
shares of the classes or series of classes of the Company's stock set forth on
Schedule B, other than such Additional Selling Shareholder's Additional Owned
Shares.
3.
(a) Each
Original Selling Shareholder confirms that such Original Selling Shareholder has
requested (the "Registration Request") that (i) pursuant to the provisions of
Section 2.1(a) of the RR Agreement the Company effect the registration under the
Securities Act of (A) all of such Original Selling Shareholder's Owned Shares
which constitute Class A Common Stock of the Company and (B) all shares of Class
A Common Stock of the Company issuable upon the conversion of Owned Shares that
are not currently Class A Common Stock of the Company to be sold in an
underwritten secondary offering (the "Secondary Offering"), and (ii) the Company
in connection with the Secondary Offering also effect the registration under the
Securities Act of (A) all of Additional Selling Shareholders' Additional Owned
Shares which constitute Class A Common Stock of the Company and (B) all shares
of Class A Common Stock of the Company issuable upon the conversion of
Additional Owned Shares that are not currently Class A Common Stock of the
Company (collectively the "Offered Securities").
(b) The
Company and each Selling Shareholder has agreed to take all actions necessary to
convert all shares of the Company’s capital stock being sold in the Secondary
Offering upon conversion which are not currently Class A Common Stock of the
Company into shares of Class A Common Stock of the Company immediately prior to
the consummation of the Secondary Offering with respect to such shares pursuant
to the terms of the underwriting agreement between the Company, the Selling
Shareholders and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Inc. and Xxxxx
Xxxxxxx & Co. as representatives of the several underwriters named therein
related to the Secondary Offering (the "Underwriting Agreement");
(c) Each
Original Selling Shareholder agrees that the 30 day period referenced in Section
2.1(a)(ii) of the RR Agreement has terminated as of the date of this
Agreement;
(d) The
Company and each Selling Shareholder agrees that no other securities of the
Company shall be included in the Secondary Offering other than the Offered
Securities unless the Company and the Original Selling Shareholders shall have
consented in writing to the inclusion of such other securities;
(e) Notwithstanding
anything to the contrary set forth in the RR Agreement, and subject to the
provisions of Section 3(f) below, each of the Selling Shareholders shall
severally be responsible for the payment of a pro rata portion of the
Registration Expenses arising in connection with the Secondary Offering
allocated based on the respective number of Offered Securities of each of the
Selling Shareholders sold in the Secondary Offering. The Company shall pay all
fees and expenses other than Registration Expenses, if any, incident to the
Company’s performance or compliance with the RR Agreement in connection with the
Secondary Offering. All Registration Expenses payable by a Selling
Shareholder hereunder shall be promptly paid by such Selling Shareholder upon
presentment of an invoice setting forth such Registration Expenses in reasonable
detail; and
(f) If the
Secondary Offering is not consummated for any reason (i) the Company shall be
responsible for the payment of (a) the fees and disbursements of counsel for the
Company and of its independent public accountants incurred in connection with
such proposed registration (including the expenses of "comfort" letters to be
provided by such independent public accountants in connection with such proposed
registration), (b) all filing fees with the Commission , the NASDAQ Stock
Market, Inc. or the Financial Industry Regulatory Authority and (c) other fees
and expenses (other than Registration Expenses) incurred by the Company in
connection with such proposed registration and (ii) the Selling Shareholders
shall be responsible for the payment (on a pro rata basis determined in
accordance with the provisions of Section 3(e) above) of all other Registration
Expenses arising in connection with such proposed registration other than those
described in immediately preceding clause (i).
4. Subject
to the provisions of this Agreement, the Additional Selling Shareholders shall
have the rights and be bound by the obligations of a holder of Registrable
Securities as set forth in Sections 2.3, 2.4(a), 2.5, 2.7 and 7 of the RR
Agreement solely in connection with the Secondary Offering of the Additional
Owned Shares. The Additional Selling Shareholders shall have no other
rights or obligations arising under the RR Agreement other than those expressly
referenced in the immediately preceding sentence. Notwithstanding
anything to the contrary set forth herein or in the RR Agreement, any request to
the Company by Xxxx Xxxxxxx Life Insurance Company or Xxxx Xxxxxxx Variable Life
Insurance Company (collectively, the "JH Entities") to effect the registration
under the Securities Act of (i) any Additional Owned Shares owned by the JH
Entities which are not sold in the Secondary Offering or (ii) any other
securities of the Company owned by the JH Entities shall be governed by the
provisions of the Registration Rights Agreement between the Company and the JH
Entities dated as of August 17, 2006 and not the provisions of this Agreement or
the RR Agreement.
5. Each
Selling Shareholder hereby undertakes and agrees to indemnify and hold harmless
(in the same manner and to the same extent as set forth in Section 2.7(a) of the
RR Agreement) the Company, each director of the Company, each officer of the
Company and each other Person (other than other Selling Shareholders, if
applicable) who controls the Company within the meaning of the Securities Act or
the Exchange Act, with respect to any statement or alleged statement in or
omission or alleged omission from any registration statement, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereto, prepared in connection with the Secondary Offering if such statement or
alleged statement or omission or alleged omission was made in reliance upon and
in conformity with written information provided by such Selling Shareholder for
inclusion therein; provided, however, that any such written information shall be
limited to the name of each Selling Shareholder, the address of each Selling
Shareholder and the information included about each Selling Shareholder in the
Selling Shareholder table.
6.
(a) This
Agreement shall terminate and be of no further force and effect if no Owned
Shares are sold in connection with the Secondary Offering by no later than
September 30, 2009.
(b) All
rights of the Original Selling Shareholders under the RR Agreement (other than
the Original Selling Shareholders' rights under Section 2.1 of the RR Agreement
in connection with the Registration Request and Section 2.7 of the RR Agreement
in connection with the Secondary Offering) shall automatically terminate upon
the sale of all of the Owned Shares in the Secondary Offering.
(c) If the
sale of some, but not all, of the Owned Shares in the Secondary Offering is
consummated, then the RR Agreement shall be deemed to be amended as of the date
of such consummation as follows:
(i) The first
sentence of the definition of "Registrable Securities" set forth in Section 3 of
the RR Agreement is hereby amended and restated to provide that "Registrable
Securities" means (A) any shares of Common Stock issuable upon conversion of any
Owned Shares not sold in the Secondary Offering and (B) any securities of the
Company issued or issuable with respect to any of the securities described in
immediately preceding clause (A) by way of a dividend or stock split or in
connection with a combination of shares, recapitalization, reclassification,
merger, consolidation, reconstitution or other reorganization or
otherwise.
(ii) Notwithstanding
anything to the contrary set forth in Section 2.1 of the RR Agreement, the right
to request that the Company effect the registration under the Securities Act of
all or part of the Registrable Securities (an "Additional Registration Request")
shall be subject to the following additional provision: (A) if an
Additional Registration Request is withdrawn in accordance with the provisions
of Section 2.1(f) of the RR Agreement then, notwithstanding anything to the
contrary set forth in the RR Agreement, (A) the Company shall be responsible for
the payment of the fees and disbursements of counsel for the Company and of its
independent public accountants incurred in connection with such proposed
registration (including (a) the expenses of "comfort" letters to be provided by
such independent public accountants in connection with such proposed
registration), (b) all filing fees with the Commission, the NASDAQ Stock Market,
Inc. or the Financial Industry Regulatory Authority and (c) other fees and
expenses (other than Registration Expenses) incurred by the Company in
connection with such proposed registration and (B) the Selling Holders of
Registrable Securities who made such Additional Registration Request shall be
responsible for the payment (on a pro rata basis determined in accordance with
the provisions of Section 3(e) above) of all Registration Expenses arising in
connection with such proposed registration other than those described in
immediately preceding clause (A).
7. The
Selling Shareholders represent and warrant to the Company that neither CMOC,
Inc. or Uranus Fund, Ltd. nor any successor thereto (i) owns any shares of the
Company's securities or (ii) has any continuing rights under the RR Agreement
(which rights have permanently terminated).
8. This
Agreement, together with the Underwriting Agreement and the RR Agreement
(including the exhibits and schedules thereto), is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein and therein. This Agreement, the Underwriting
Agreement and the RR Agreement (including the exhibits and schedules thereto)
supersede all prior agreements and understandings between the parties with
respect to such subject matter.
9. This
Agreement has been negotiated, executed and delivered in the State of New York
and shall be governed by and construed in accordance with the laws of the State
of New York, without regards to principles of conflicts of law.
10. Except as
expressly provided herein, the RR Agreement and the rights and obligations of
the parties thereto contained therein remain in full force and
effect.
11. This
Agreement may be executed and delivered via facsimile or e-mail transmission;
and may be executed in counterparts, each of which shall be an original and all
of which taken together shall constitute one and the same
instrument.
[SIGNATURE
PAGES TO FOLLOW]
--
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered by their respective representatives hereunto duly authorized as of
the date first above written.
SENECA FOODS CORPORATION
By: /s/Xxxxx X.
Xxxxxx
Name: Xxxxx X.
Xxxxxx
Title: President and Chief
Executive Officer
XXXX XXXXX STRATEGIC INVESTMENTS,
L.P.
By: CMSI GP, LLC, as
General Partner
By: Xxxxxx X.
Xxxx, as Managing Member
By:/s/Xxxxxx X.
Xxxx
Name: Xxxxxx X.
Xxxx
Title: Managing Member
XXXX XXXXX STRATEGIC INVESTMENTS III,
L.P.
By: CMSI III GP, LLC, as
General Partner
By: Xxxxxx X.
Xxxx, as Managing Member
By:/s/Xxxxxx X.
Xxxx
Name: Xxxxxx X.
Xxxx
Title:Managing Member
/s/Xxxxx
Xxxxx
___________________________
___________________________
Xxxxx Xxxxx
-S--
/s/Xxxxxxxx Xxxx
__________________________
Xxxxxxxx Xxxx
Xxxxx Xxxxx 2003-GRAT
/s/Xxxxx
Xxxxx
___________________________
___________________________
Trustee
Xxxxx Xxxxx 2009 CMS-GRAT
/s/Xxxxx
Xxxxx
___________________________
___________________________
Trustee
/s/Xxxxxxx
Xxxxx
___________________________
___________________________
Xxxxxxx Xxxxx
/s/Xxxx Xxxxxxx
___________________________
Xxxx Xxxxxxx
/s/Xxxxx Xxxxxxx
___________________________
Xxxxx Xxxxxxx
/s/Xxxxxx X. Xxxx
___________________________
Xxxxxx Xxxx
/Xxxxx
Xxxx
___________________________
___________________________
Xxxxx Xxxx
/s/Xxxxx Xxxx
___________________________
Xxxxx Xxxx
-S--
/s/Xxxxxxxxx Xxxxx
___________________________
Xxxxxxxxx Xxxxx
/s/Xxxxx Xxxxx Xxxx parent of Xxxxx
Xxxx
___________________________
___________________________
Xxxxx Xxxx
/s/Xxxxx Xxxxxx
___________________________
Xxxxx Xxxxxx
/s/Xxxxxxx Xxxx
___________________________
Xxxxxxx Xxxx
XXXX XXXXXXX LIFE INSURANCE
COMPANY
By: /s/Xxxxxxx X.
Xxxxxx
___________________________
Name: Xxxxxxx X.
Xxxxxx
Title: Director
XXXX XXXXXXX VARIABLE
LIFE
INSURANCE
COMPANY
By:/s/Xxxxxxx X.
Xxxxxx
___________________________
Name:Xxxxxxx X.
Xxxxxx
Title: Authorized Signatory
SCHEDULE
A
|
Convertible Participating Preferred
Stock
|
Class A Common Stock
|
Class B Common Stock
|
||||||||||
|
Xxxx
Xxxxx Strategic Investments, L.P.
|
2,325,736.00 | - | - | |||||||||
|
Xxxxx
Xxxxx
|
248,520.00 | - | 247,304.00 | |||||||||
|
Xxxxxxxx
Xxxx
|
- | 25,000.00 | 25,000.00 | |||||||||
SCHEDULE
B
|
Convertible Participating Preferred
Stock
|
Class A Common Stock
|
Class B Common Stock
|
||||||||||
|
Xxxx
Xxxxx Strategic Investments III, L.P.
|
30,000.00 | - | - | |||||||||
|
Xxxxx
Xxxxx 2003 GRAT
|
- | 130,000.00 | 130,000.00 | |||||||||
|
Xxxxx
Xxxxx 2009 CMS-GRAT
|
- | 274,304.00 | - | |||||||||
|
Xxxxxxx
Xxxxx
|
900.00 | 14,500.00 | 12,500.00 | |||||||||
|
Xxxx
and Xxxxx Xxxxxxx
|
- | 53,975.00 | 53,975.00 | |||||||||
|
Xxxxxx
and Xxxxx Xxxx
|
- | 53,975.00 | 53,975.00 | |||||||||
|
Xxxxx
Xxxx
|
1,000.00 | 14,500.00 | 12,500.00 | |||||||||
|
Xxxxxxxxx
Xxxxx
|
1,000.00 | 15,500.00 | 12,500.00 | |||||||||
|
Xxxxx
Xxxx
|
- | 2,000.00 | - | |||||||||
|
Xxxxx
Xxxxxx
|
- | 1,000.00 | - | |||||||||
|
Xxxxxxx
Xxxx
|
- | 8,334.00 | 8,334.00 | |||||||||
|
Xxxx
Xxxxxxx Life Insurance Company
|
490,000.00 | - | - | |||||||||
|
Xxxx
Xxxxxxx Variable Life Company
|
10,000.00 | - | - | |||||||||
