STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (this "AGREEMENT"), is entered into as of July
18, 2002, by and among SBI And Company, a Utah corporation ("PARENT"), SBI
Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of Parent
("PURCHASER"), and certain stockholders, solely in their capacity as
stockholders, of Lante Corporation, a Delaware corporation (the "COMPANY") set
forth on SCHEDULE 1 hereto (each a "STOCKHOLDER" and collectively, the
"STOCKHOLDERS").
R E C I T A L S
WHEREAS, each Stockholder is, as of the date hereof, the record and
beneficial owner (as defined in Rule 13d-3 under the Securities Exchange Act of
1934, as amended) of (i) the number of shares of common stock of the Company,
(the "COMPANY COMMON STOCK"), and (ii) the number of options to acquire Company
Common Stock (the "COMPANY OPTIONS"), set forth opposite the name of such
Stockholder on Schedule 1 hereto; and
WHEREAS, Parent, Purchaser and the Company have entered into an
Acquisition Agreement and Agreement and Plan of Merger, dated as of the date
hereof (as in effect on the date hereof, the "MERGER AGREEMENT"), which
provides, among other things, for Purchaser to commence a tender offer for all
of the issued and outstanding shares of the Company Common Stock and the merger
of Purchaser with and into the Company with the Company continuing as the
surviving corporation upon the terms and subject to the conditions set forth in
the Merger Agreement (capitalized terms used herein without definition shall
have the respective meanings specified in the Merger Agreement); and
WHEREAS, as a condition to the willingness of Parent and Purchaser to
enter into the Merger Agreement and as an inducement and in consideration
therefor, the Stockholders have agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements set forth herein and in the Merger Agreement, and intending to be
legally bound hereby, the parties hereto agree as follows:
Section 1. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. Each
Stockholder hereby represents and warrants to Parent, severally, and not
jointly, as to itself only as set forth below:
(a) Such Stockholder is the record and beneficial owner of the
shares of Company Common Stock set forth opposite his or its name on SCHEDULE 1
to this Agreement (such shares of Company Common Stock, together with any
Company Common Stock acquired by the Stockholder after the date of this
Agreement, whether upon the exercise of Company Options or otherwise, the
"SHARES"). SCHEDULE 1 lists separately all outstanding Company Options issued to
such Stockholder. Such Stockholder is the record and beneficial owner of the
Company Options set forth opposite such Stockholder's name on SCHEDULE 1 to this
Agreement.
(b) Such Stockholder has voting power, power of disposition, and
power to agree to all of the matters regarding such Stockholder set forth in
this Agreement, in each case with respect to all of the Shares set forth
opposite such Stockholders name on SCHEDULE 1. Such Stockholder is not the
record or beneficial owner of any securities of the Company on the date hereof
other than the Shares set forth on SCHEDULE 1 and the Company Options, if any,
specified in SCHEDULE 1.
(c) Such Stockholder has the legal capacity to execute and deliver
this Agreement and to consummate the transactions contemplated hereby regarding
such Stockholder.
(d) This Agreement has been validly executed and delivered by such
Stockholder and constitutes the legal, valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of
creditors' rights generally, and (ii) the availability of the remedy of specific
performance or injunctive or other forms of equitable relief may be subject to
equitable defenses and would be subject to the discretion of the court before
which any proceeding therefor may be brought.
(e) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will result in a violation
of, or a default under, or conflict with, any material contract, trust, or
agreement, or restriction of any kind to which such Stockholder is a party or by
which such Stockholder or his Shares are bound. The consummation of the
transactions contemplated hereby by such Stockholder will not violate, or
require any consent, approval, or notice (except those required under applicable
securities laws) under, any provision of any judgment, order, decree, statute,
law, rule or regulation applicable to such Stockholder.
(f) In the case of any Stockholder that is a corporation, limited
partnership or limited liability company, such Stockholder is an entity duly
organized and validly existing under the laws of the jurisdiction in which it is
incorporated or constituted, and such Stockholder has all requisite corporate,
limited partnership or limited liability company power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby regarding such Stockholder, and has taken all necessary corporate action
to authorize the execution, delivery and performance of this Agreement.
(g) The Shares owned by such Stockholder are held by such
Stockholder or by a nominee or custodian for the benefit of such Stockholder,
free and clear of all liens, claims, security interests, proxies, voting trusts,
as amended, or agreements, options, rights, understandings or arrangements or
any other encumbrances whatsoever on title, transfer, or exercise of any rights
of a Stockholder in respect of such Shares (collectively, "ENCUMBRANCES"),
except for any such Encumbrance arising under applicable federal or state
securities laws or that are otherwise DE MINIMIS in nature.
(h) Such Stockholder understands and acknowledges that Parent and
Purchaser are entering into the Merger Agreement in reliance upon such
Stockholder's execution and delivery of this Agreement.
Section 2. REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER. Each of
Parent and Purchaser hereby, jointly and severally, represents and warrants to
the Stockholders as follows:
(a) Each of Parent and Purchaser is a corporation duly organized and
validly existing under the laws of its state of organization, has all requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby, and has taken all necessary
corporate action to authorize the execution, delivery and performance of this
Agreement.
(b) This Agreement has been duly authorized, executed and delivered
by each of Parent and Purchaser, and constitutes the legal, valid and binding
obligation of each of Parent and Purchaser, enforceable against each of them in
accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors' rights generally and (ii) the availability
of the remedy of specific performance
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or injunctive or other forms of equitable relief may be subject to equitable
defenses and would be subject to the discretion of the court before which any
proceeding therefor may be brought.
Section 3. TENDER OF THE SHARES. Each Stockholder hereby agrees that,
subject to the terms and conditions of Section 7 hereof, (a) such Stockholder
shall tender his, her or its Shares into the Offer as promptly as practicable,
and in any event no later than the fifth business day, following the
commencement of the Offer pursuant to Section 1.1 of the Merger Agreement, and
(b) such Stockholder shall not withdraw any Shares so tendered unless the Offer
is terminated or has expired.
Section 4. TRANSFER OF THE SHARES. Prior to the termination of this
Agreement and except as otherwise provided in this Agreement, from and after the
date hereof each Stockholder agrees that such Stockholder shall not: (i)
transfer, assign, sell, gift-over, pledge or otherwise dispose of, or consent to
any of the foregoing ("TRANSFER"), any or all of the Shares, or any right or
interest therein; or (ii) enter into any contract, option or other agreement,
arrangement or understanding with respect to any Transfer.
Section 5. NO SOLICITATION. Each Stockholder shall comply with the terms
of Section 6.4 of the Merger Agreement, to the same extent as if such
Stockholder were a party to and covered by such Section, and will not take any
action in contravention of such Section. It is understood that this Section 5(a)
limits the rights of each Stockholder only to the extent that such Stockholder
is acting in such Stockholder's capacity as a Stockholder. Nothing in this
Agreement shall be construed as preventing a Stockholder who is an officer or
director of the Company from taking such actions as such Stockholder reasonably
deems appropriate to fulfill the obligations of such office (including, subject
to the limitations contained in Section 6.4 of the Merger Agreement, the
performance of obligations consistent with the fiduciary obligations of such
Stockholder acting solely in his or her capacity as an officer or director).
Section 6. FURTHER ASSURANCES. Each Stockholder shall, upon request and at
the expense of Parent or Purchaser, execute and deliver any additional documents
and take such further actions as may reasonably be deemed by Parent or Purchaser
to be necessary or desirable to carry out the provisions hereof.
Section 7. TERMINATION. This Agreement, and all rights and obligations of
the parties hereunder, shall terminate immediately upon the earlier to occur of
(i) the termination or expiration of the Offer, (ii) the termination of the
Merger Agreement in accordance with its terms, and (iii) the Effective Time;
PROVIDED, however, that Section 8 shall survive any termination of this
Agreement. Each Stockholder shall have the right to terminate his, her or its
obligations under this Agreement if (x) there is any material modification or
waiver by the Company of the terms of the Merger Agreement and (y) such
modification or waiver is materially adverse to the rights of such Stockholder
(in his, her or its capacity as a Stockholder) under the Merger Agreement (it
being understood that any decrease in the price per share of Company Common
Stock or the type or nature of the consideration to be received by such
Stockholder shall constitute a materially adverse modification in respect of
each Stockholder).
Section 8. EXPENSES. Except as otherwise set forth herein, all fees, costs
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such fees, costs and
expenses.
Section 9. PUBLIC ANNOUNCEMENTS. Each of the Stockholders agrees that it
will not issue any press release or otherwise make any public statement with
respect to this Agreement or the transactions contemplated hereby or by the
Merger Agreement without the prior consent of Parent; PROVIDED, HOWEVER, that
such disclosure may be made without obtaining such prior consent if the
disclosure is required by Law or is required by any regulatory authority,
including but not limited to any Governmental Entity, or
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the Nasdaq National Market and any national securities exchange, trading market
or inter-dealer quotation system on which the Shares trade.
Section 10. MISCELLANEOUS.
(a) NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally, telecopied (which
is confirmed) or sent by a nationally recognized overnight courier service, such
as Federal Express (providing proof of delivery), to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
If to any of the Stockholders, at the address set forth opposite the
name of such Stockholder on SCHEDULE 1 hereto.
If to Parent or Purchaser, to:
SBI And Company
0000 X. Xxxxxxxxxx Xxxxxxx, #000
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: President
Facsimile: (000) 000-0000
(b) HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(c) COUNTERPARTS. This Agreement may be executed manually or by
facsimile by the parties hereto in any number of counterparts, each of which
shall be considered one and the same agreement.
(d) ENTIRE AGREEMENT. This Agreement (together with the Merger
Agreement and any other documents and instruments referred to herein and
therein) constitutes the entire agreement among the parties with respect to the
subject matter hereof and thereof and supersedes all other prior agreements and
understandings, both written and oral, among the parties or any of them with
respect to the subject matter hereof and thereof.
(e) GOVERNING LAW; VENUE. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflicts of law thereof. Each of the parties hereto
(a) consents to submit itself to the personal jurisdiction of any federal court
located in the State of Delaware or any Delaware state court in the event any
dispute arises out of this Agreement or any of the Transactions, (b) agrees that
it shall not attempt to deny or defeat such personal jurisdiction by motion or
other request for leave from any such court and (c) agrees that it shall not
bring any action relating to this Agreement or any of the Transactions in any
court other than a federal or state court sitting in the State of Delaware.
(f) ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties.
(g) SEVERABILITY OF PROVISIONS. If any term or provision of this
Agreement is invalid, illegal or incapable of being enforced by rule of law or
public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated by this Agreement is not affected in
any manner adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the
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parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in an
acceptable manner to the end that the transactions are fulfilled to the extent
possible.
(h) SPECIFIC PERFORMANCE. The parties hereto acknowledge that money
damages would be an inadequate remedy for any breach of this Agreement by any
party hereto, and that the obligations of the parties hereto shall be
enforceable by any party hereto through injunctive or other equitable relief.
(i) AMENDMENT. No amendment, modification or waiver in respect of
this Agreement shall be effective against any party unless it shall be in
writing and signed by such party.
(j) BINDING NATURE. This Agreement is binding upon and is solely for
the benefit of the parties hereto and their respective successors, legal
representatives and assigns.
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IN WITNESS WHEREOF, Parent, Purchaser and the Stockholders have caused
this Agreement to be duly executed and delivered as of the date first written
above.
SBI AND COMPANY
By:
/s/ L. Xxx Xxxxxx
----------------------------------
NAME: L. Xxx Xxxxxx
TITLE: Executive Vice President
SBI ACQUISITION CORP.
By:
/s/ L. Xxx Xxxxxx
----------------------------------
NAME: L. Xxx Xxxxxx
TITLE: Executive Vice President
STOCKHOLDER
By: /s/ Xxxx X. Xxxxx
----------------------------------
NAME: XXXX X. XXXXX
FRONTENAC VII LIMITED PARTNERSHIP
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Title: Member
--------------------------------
FRONTENAC MASTERS VII LIMITED PARTNERSHIP
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Title: Member
-----------------------------------
XXXXX XXXXX IRREVOCABLE TRUST
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Title: Trustee
-----------------------------------
XXXX XXXXX IRREVOCABLE TRUST
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Title: Trustee
-----------------------------------
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SCHEDULE 1
No. of Shares of
Stockholder Name and Address Company Common Stock
---------------------------- --------------------
Xxxx X. Xxxxx 13,020,500
Frontenac VII Limited Partnership 5,134,456
Frontenac Masters VII Limited Partnership 257,076
Xxxxx Xxxxx Irrevocable Trust 1,187,500
Xxxx Xxxxx Irrevocable Trust 1,187,500
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