STOCKHOLDER AGREEMENT
Exhibit
2.3
EXECUTION
COPY
This
Stockholder Agreement (this “Agreement”) is
entered into as of November 2, 2009, by and between Peet’s
Coffee & Tea,
Inc., a Washington corporation (“Parent”), and the
stockholder identified on the signature page hereto (“Stockholder”).
Recitals
A. Stockholder
is a holder of record and the “beneficial owner” (within the meaning of Rule
13d-3 under the Securities Exchange Act of 1934) of certain shares of common
stock of Xxxxxxxx Coffee, Inc., a Delaware corporation (the “Company”).
B. Parent,
Xxxxx Acquisition Sub, Inc., a Delaware corporation (“Acquisition Sub”),
and the Company are entering into an Agreement and Plan of Merger of even date
herewith (the “Merger
Agreement”) which provides (on the terms and subject to the conditions
set forth therein) for Parent to acquire the Company by (i) causing Acquisition
Sub to make an exchange offer as contemplated by the Merger Agreement (the
“Offer”) for
all of the issued and outstanding common stock of the Company for the Per Share
Consideration (as defined in the Merger Agreement) and (ii) as promptly as
practicable after the closing of the Offer, causing Acquisition Sub to merge
with and into the Company (the “Merger”).
C. In
the Merger, each outstanding share of common stock of the Company will be
converted into the right to receive the same consideration payable pursuant to
the Offer.
D. Stockholder
is entering into this Agreement in order to induce Parent to enter into the
Merger Agreement.
Agreement
The parties to this Agreement,
intending to be legally bound, agree as follows:
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Section
1.
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Certain
Definitions
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For purposes of this
Agreement:
(a) “Company Common Stock”
shall mean the common stock, par value $0.01 per share, of the
Company.
(b) Stockholder
shall be deemed to “Own” or to have
acquired “Ownership” of a
security if Stockholder: (i) is the record owner of such security; or (ii) is
the “beneficial owner” (within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934) of such security.
(c) “Subject Securities”
shall mean: (i) all equity securities of the Company (including all shares of
Company Common Stock and all options, warrants and other rights to acquire
shares of Company Common Stock) Owned by Stockholder as of the date of this
Agreement; and (ii) all additional equity securities of the Company (including
all additional shares of Company Common Stock and all additional options,
warrants and other rights to acquire shares of Company Common Stock) of which
Stockholder acquires Ownership during the period from the date of this Agreement
through the Termination Date.
(d) “Subject Shares” shall
mean: (i) all shares of Company Common Stock Owned by Stockholder as of the date
of this Agreement; and (ii) all additional shares of Company Common Stock of
which Stockholder acquires Ownership during the period from the date of this
Agreement through the Termination Date.
(e) “Termination
Date” shall
mean the earlier of (i) the date upon which the Merger Agreement is terminated
in accordance with its terms and (ii) the Effective Time of the
Merger.
(f) A
Person shall be deemed to have a effected a “Transfer” of a
security if such Person directly or indirectly: (i) sells, pledges, encumbers,
grants an option with respect to, transfers or disposes of such security or any
interest in such security to any Person other than Parent or Acquisition Sub; or
(ii) enters into an agreement or commitment contemplating the possible sale of,
pledge of, encumbrance of, grant of an option with respect to, transfer of or
disposition of such security or any interest therein to any Person other than
Parent or Acquisition Sub.
(g) Capitalized
terms used but not otherwise defined in this Agreement have the meanings
assigned to such terms in the Merger Agreement.
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Section
2.
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Transfer
of Subject Securities and Voting
Rights
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2.1 Restriction on Transfer of Subject
Securities. Subject to Section 2.3,
during the period from the date of this Agreement through the Termination Date,
Stockholder shall not cause or permit any Transfer of any of the Subject
Securities.
2.2 Restriction on Transfer of Voting or
Disposition Rights. During the period from the date of this
Agreement through the Termination Date, Stockholder shall ensure
that:
(a) none
of the Subject Securities is deposited into a voting trust; (b) no proxy is
granted, and no voting agreement or similar agreement is entered into, with
respect to any of the Subject Securities; and (c) no Person other than
Stockholder (or any other Person that is the record or beneficial owner of any
of the Subject Securities as of the date of this Agreement, but only with
respect to such Subject Securities) is granted dispositive power with respect to
any of the Subject Securities.
2.3 Permitted Transfers. Section 2.1 shall not
prohibit a Transfer of Subject Securities by Stockholder (a) if Stockholder is
an individual (i) to any member of Stockholder’s immediate family, or to a trust
for the benefit of Stockholder or any member of Stockholder’s immediate family,
or (ii) upon the death of Stockholder, or (b) if Stockholder is a corporation,
partnership or limited liability company, to one or more stockholders, partners
or members of Stockholder
or to an affiliated entity under common control with Stockholder; provided, however, that a
Transfer referred to in this sentence shall be permitted only if, as a
precondition to such Transfer, the transferee agrees in a writing, reasonably
satisfactory in form and substance to Parent, to be bound by all of the terms of
this Agreement.
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Section
3.
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Agreement
to Tender
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3.1 Tender of Subject Shares. Prior to the Termination
Date, Stockholder agrees to promptly (and, in any event, not later than five
business days after receipt by Stockholder of all documents and instruments
enabling Stockholder to do so) validly tender or cause to be validly tendered in
the Offer, pursuant to and in accordance with the terms of the Offer and Rule
14d-2 under the Securities Exchange Act of 1934, all of the Subject Shares Owned
by Stockholder as of the date of this Agreement (free and clear of any
encumbrances or restrictions), and if Stockholder acquires Ownership of any
additional Subject Shares after the date of this Agreement, to promptly (and, in
any event, not later than the later of (x) two business days after Stockholder
acquires Ownership of such additional Subject Shares and (y) receipt by
Stockholder of all documents and instruments enabling Stockholder to do so)
validly tender or cause to be validly tendered in the Offer, pursuant to and in
accordance with the terms of the Offer, all of such additional Subject Shares
(free and clear of any encumbrances or restrictions).
3.2 No Withdrawal. Prior to the Termination
Date, Stockholder agrees not to withdraw or cause to be withdrawn any of the
Subject Shares from the Offer unless and until the Offer expires without
Acquisition Sub having accepted for exchange shares of Company Common Stock
validly tendered in the Offer.
3.3 Conditional Obligation. Stockholder acknowledges
and agrees that Acquisition Sub’s obligation to accept for exchange shares of
Company Common Stock in the Offer, including any Subject Shares tendered by
Stockholder, is subject to the terms and conditions of the Merger Agreement and
the Offer.
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Section
4.
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Voting
of Shares
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Stockholder
hereby agrees that, prior to the Termination Date, at any meeting of the
stockholders of the Company, however called, and in any action by written
consent of stockholders of the Company, unless otherwise directed in writing by
Parent, Stockholder shall cause any Subject Shares not acquired pursuant to the
Offer to be voted:
(a) in
favor of the Merger and the adoption of the Merger Agreement and the terms
thereof, in favor of each of the other actions contemplated by the Merger
Agreement and in favor of any action in furtherance of any of the
foregoing;
(b) against
any action or agreement that would result in a breach of any representation,
warranty, covenant or obligation of the Company in the Merger Agreement;
and
(c) against
any action that is intended, or that could reasonably be expected, to impede,
interfere with, delay, postpone, discourage or adversely affect the Offer or the
Merger or any of the other Contemplated Transactions or this
Agreement.
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Prior to
the Termination Date, Stockholder shall not enter into any agreement or
understanding with any Person to vote or give instructions in any manner
inconsistent with clause “(a)”, clause “(b)” or clause “(c)” of the preceding
sentence. For the avoidance of doubt, nothing in this Agreement shall
in any way limit Stockholder’s right to vote the Subject Shares in Stockholder’s
sole discretion on any matters other than the foregoing matters that may be
submitted to a stockholder vote, consent or other approval.
Notwithstanding the foregoing or any
contrary provision hereof, no covenant or agreement herein of Stockholder, and
no action taken or omitted to be taken by Stockholder pursuant to the terms of
this Agreement or the Merger Agreement, is intended, nor shall it be deemed or
construed, to constitute the consent or approval of Stockholder (whether in
Stockholder's capacity as a stockholder, director or officer of the Company or
otherwise) for any purpose under any employment, severance, change-in-control or
similar agreement or arrangement to which Stockholder may be party.
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Section
5.
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Waiver
of Appraisal Rights
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Subject to the acceptance of the
Subject Shares by Acquisition Sub in the Offer pursuant to the Merger Agreement,
Stockholder hereby irrevocably and unconditionally waives, and agrees to cause
to be waived and to prevent the exercise of, any rights of appraisal or
dissenters’ rights relating to the Merger with respect to any shares of Company
Common Stock Owned by Stockholder.
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Section
6.
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Representations
and Warranties of
Stockholder
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Stockholder hereby represents and
warrants to Parent as follows:
6.1 Authorization, etc. Stockholder has the
absolute and unrestricted right, power, authority and capacity to execute and
deliver this Agreement and to perform Stockholder’s obligations
hereunder. This Agreement has been duly executed and delivered by
Stockholder and constitutes a legal, valid and binding obligation of
Stockholder, enforceable against Stockholder in accordance with its terms,
subject to (i) laws of general application relating to bankruptcy,
insolvency and the relief of debtors and (ii) rules of law governing
specific performance, injunctive relief and other equitable
remedies.
6.2 No
Conflicts or Consents.
(a) The
execution and delivery of this Agreement by Stockholder do not, and the
performance of this Agreement by Stockholder will not: (i) conflict with or
violate any Legal Requirements applicable to Stockholder; or (ii) result in or
constitute a breach of, or give to any Person any right of termination,
amendment, acceleration or cancellation of, or result in the creation of any
encumbrance or restriction on any of the Subject Securities pursuant to any
Contract to which Stockholder is a party.
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(b) The
execution and delivery of this Agreement by Stockholder do not, and the
performance of this Agreement by Stockholder will not, require any consent or
approval of any Person.
6.3 Title to
Securities. As of the date of this Agreement: (a) Stockholder
holds of record (free and clear of any encumbrances or restrictions) the number
of outstanding shares of Company Common Stock set forth under the heading
“Shares Held of Record” on the signature page hereof; (b) Stockholder holds
(free and clear of any encumbrances or restrictions) the options, warrants and
other rights to acquire shares of Company Common Stock set forth under the
heading “Options and Other Rights” on the signature page hereof; (c) Stockholder
Owns the additional equity securities of the Company set forth under the heading
“Additional Securities Beneficially Owned” on the signature page hereof; and (d)
Stockholder does not directly or indirectly Own any shares of capital stock or
other equity securities of the Company, or any option, warrant or other right to
acquire (by purchase, conversion or otherwise) any shares of capital stock or
other equity securities of the Company, other than the shares and options,
warrants and other rights set forth on the signature page hereof.
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Section
7.
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Additional
Covenants of
Stockholder
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7.1 Stockholder
Information. Stockholder hereby agrees to permit Parent and
Acquisition Sub to publish and disclose in the Schedule TO, the Form S-4
Registration Statement or other publicly-filed documents relating to the Offer
and, if adoption of the Merger Agreement by the stockholders of the Company is
required under the terms of the DGCL or other applicable law, the Proxy
Statement, Stockholder’s identity and ownership of shares of Company Common
Stock and the nature of Stockholder’s obligations under this
Agreement.
7.2 Further
Assurances. From time to time and without additional
consideration, Stockholder shall execute and deliver, or cause to be executed
and delivered, such additional transfers, assignments, endorsements, proxies,
consents and other instruments, and shall take such further actions, as Parent
may reasonably request for the purpose of carrying out and fulfilling the
obligations of Stockholder under this Agreement.
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Section
8.
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Miscellaneous
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8.1 Notices. Any notice
or other communication required or permitted to be delivered to either party
under this Agreement shall be in writing and shall be deemed properly delivered,
given and received when received at the address or facsimile telephone number
set forth beneath the name of such party below (or at such other address or
facsimile telephone number as such party shall have specified in a written
notice given to the other party):
if to Stockholder:
at the
address set forth on the signature page hereof
with a
copy (which shall not constitute notice) to:
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Xxxxxx
Xxxx & Xxxxxxxx LLP
0000
Xxxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxx,
Xxxxxxxxxx 00000
Attention: Xxxx
X. Xxxxxxxx
Facsimile: (000)
000-0000
if to
Parent:
Peet’s
Coffee & Tea, Inc.
0000 Xxxx
Xxxxxx
Xxxxxxxxxx,
XX 00000
Attention:
Chief Financial Officer
Facsimile:
000-000-0000
8.2 Severability. Any
term or provision of this Agreement that is invalid or unenforceable in any
situation in any jurisdiction shall not affect the validity or enforceability of
the remaining terms and provisions hereof or the validity or enforceability of
the offending term or provision in any other situation or in any other
jurisdiction. If the final judgment of a court of competent
jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the parties hereto agree that the court making such determination
shall have the power to limit the term or provision, to delete specific words or
phrases, or to replace any invalid or unenforceable term or provision with a
term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision, and
this Agreement shall be enforceable as so modified. In the event such
court does not exercise the power granted to it in the prior sentence, the
parties hereto shall replace such invalid or unenforceable term or provision
with a valid and enforceable term or provision that will achieve, to the extent
possible, the economic, business and other purposes of such invalid or
unenforceable term.
8.3 Entire
Agreement. This Agreement and any other documents delivered by
the parties in connection herewith constitute the entire agreement between the
parties with respect to the subject matter hereof and thereof and supersede all
prior agreements and understandings between the parties with respect
thereto. No addition to or modification of any provision of this
Agreement shall be binding upon either party unless made in writing and signed
by both parties.
8.4 Assignment; Binding Effect;
Etc. Except as provided herein, neither this Agreement nor any
of the interests or obligations hereunder may be assigned or delegated by either
party, and any attempted or purported assignment or delegation of any of such
interests or obligations shall be void. Without limiting any of the
restrictions set forth in Section 2 or elsewhere in this Agreement, this
Agreement shall be binding upon any Person to whom any Subject Securities are
transferred. Nothing in this Agreement, express or implied, is
intended to or shall confer any right, benefit or remedy of any nature
whatsoever upon any Person other than the parties hereto, provided that
Acquisition Sub shall be a third party beneficiary with respect to all of
Stockholder’s obligations under this Agreement.
8.5 Specific
Performance. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with its specific
terms or were otherwise breached. Stockholder agrees that, in the
event of any breach or threatened breach by Stockholder of any covenant or
obligation contained in this Agreement, Parent shall be entitled (in addition to
any other remedy that may be available to it, including monetary damages) to
seek and obtain (a) a decree or order of specific performance to enforce the
observance and performance of such covenant or obligation, and (b) an injunction
restraining such breach or threatened breach.
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8.6 Applicable Law;
Jurisdiction. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof. In any action between any of the parties arising out of
or relating to this Agreement: (a) each of the parties irrevocably and
unconditionally consents and submits to the exclusive jurisdiction and venue of
the Court of Chancery of the State of Delaware; and (b) each of the parties
irrevocably waives the right to trial by jury.
8.7 Counterparts. This
Agreement may be executed in several counterparts, each of which shall be deemed
an original and all of which shall constitute one and the same
instrument.
8.8 Captions. The
captions contained in this Agreement are for convenience of reference only,
shall not be deemed to be a part of this Agreement and shall not be referred to
in connection with the construction or interpretation of this
Agreement.
8.9 Expenses. All costs
and expenses incurred in connection with this Agreement shall be paid by or on
behalf of the party incurring such cost or expense, whether or not the
transactions contemplated by this Agreement are consummated.
8.10 Waiver. A party
shall not be deemed to have waived any claim available to such party arising out
of this Agreement, or any power, right, privilege or remedy of such party under
this Agreement, unless the waiver of such claim, power, right, privilege or
remedy is expressly set forth in a written instrument duly executed and
delivered on behalf of such party; and any such waiver shall not be applicable
or have any effect except in the specific instance in which it is
given.
8.11 Not Binding in Other
Capacities. Notwithstanding anything in this Agreement to the
contrary, the parties acknowledge and agree that Stockholder is entering into
this Agreement solely in his capacity as a stockholder of the Company and
nothing in this Agreement shall be construed to prohibit or restrict
Stockholder from taking any action in his capacity as an officer or member of
the Board of Directors of the Company or, subject to the limitations (and
consequences of such actions) set forth in the Merger Agreement, from taking any
action with respect to any Acquisition Proposal as an officer or member
of the Board of Directors of the Company to the extent permitted by the
Merger Agreement.
8.12 Termination. This
Agreement shall automatically terminate and become void and of no further force
or effect on the Termination Date.
[Remainder
of page intentionally left blank.]
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In Witness
Whereof, Parent and Stockholder have caused this Agreement to be executed
as of the date first written above.
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Peet’s
Coffee & Tea, Inc.
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By
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Title
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Stockholder
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Signature
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Printed
Name
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Address:
___________________________
___________________________
___________________________
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Facsimile: ___________________________
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Shares
Held of Record
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Options
and Other Rights
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Additional
Securities
Beneficially
Owned
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Signature Page to Stockholder
Agreement
