SIXTH EXTENSION TO STOCKHOLDERS’ AGREEMENT
EXHIBIT
10.1
SIXTH
EXTENSION
TO
This
SIXTH EXTENSION TO STOCKHOLDERS’ AGREEMENT (the “Sixth Extension”) is hereby
entered into as of the 31st day of December, 2007, by and between Lifeway
Foods,
Inc., an Illinois corporation (the “Company”) and XX Xxxxxx, L.P., a Delaware
limited partnership (“DSW”) (“Stockholder”). Unless otherwise defined herein,
all capitalized terms used herein shall have the same meaning ascribed to
those
terms in the Stockholders’ Agreement.
WHEREAS,
Danone Foods, Inc., a Delaware corporation (“DFI”) executed that certain Stock
Power dated November 10, 2005, transferring all the shares of the Company
which
were held by DFI as of such date that are the subject of that certain
Stockholders’ Agreement by and among DFI and the Company and certain other
parties dated as of October 1, 1999, as amended on December 24, 1999 (as
amended
and extended, the “Stockholders’ Agreement”) and as extended by that certain
First Extension to Stockholders’ Agreement dated September 28, 2004 (the “First
Extension”) and by that certain Second Extension to Stockholders’ Agreement
dated October 29, 2004 (“Second Extension”) and by that certain Third Extension
to Stockholders’ Agreement dated December 30, 2004 (the “Third Extension”) and
by that certain Fourth Extension to Stockholders’ Agreement dated April 28, 2006
(the “Fourth Extension”) and by that certain Fifth Extension to Stockholders’
Agreement dated December 26, 2007 (the “Fifth Extension”) are the subject of the
Stockholders’ Agreement to DSW;
WHEREAS,
DSW accepted such shares subject to the covenants and restrictions contained
in
the Stockholders’ Agreement and DSW hereby agrees to be bound by its terms
contained therein;
WHEREAS,
under the Fifth Extension, the Standstill Period and the operative period
of
Section 6.02 of the Stockholders’ Agreement (“Non-Compete Period”) expires on
December 31, 2007; and
WHEREAS,
each of the Company and the Stockholders desires to further amend the
Stockholders’ Agreement to extend the Standstill Period and the Non-Compete
Period, with the specific exclusion of the company, Stonyfield Farms, Inc.
from
any such obligation, of the Stockholders’ Agreement as more fully provided in
this Sixth Extension.
NOW,
THEREFORE, in consideration of the entry of the parties into this Sixth
Extension and for other good and valuable consideration, the receipt of which
is
acknowledged herein, the parties hereto agree as follows:
1. Acceptance
of Terms of Stockholders’ Agreement; Acknowledgment. DSW
represents to Company that DSW is an Affiliate of DFI and that DSW has been
assigned the Stockholders’ Agreement and the shares of Company from DFI and, DSW
further agrees to be bound by, and receive all the benefits of, the terms
and
conditions of the Stockholders’ Agreement.
2. Extension
of Standstill Period. The Standstill Period shall be extended to
include any time during the period beginning on October 1, 1999 and ending
at
the close of business on December 31, 2008 and during which the Stockholders
Beneficially Owns 10% or more of the outstanding shares of Common Stock on
a
Fully Diluted Basis.
3. Extension
of Non-Compete Period. The Non-Compete Period shall be extended
to include the period beginning on October 1, 1999 and ending at the close
of
business on December 31, 2008, with the exception that the Stonyfield Farms,
Inc. entity shall be specifically excluded from any and all non-compete
obligations. The non-compete obligations shall apply only to
kefir.
4. Governing
Law. This Sixth Extension shall be governed by and construed in
accordance with the laws of the State of Illinois.
5. No
Waiver of Other Rights. The execution, delivery and effectiveness
of this Sixth Extension shall not, except as expressly provided herein, operate
as a waiver of any right, power or remedy of any of the parties to the
Stockholders’ Agreement.
6. Counterparts. This
Sixth Extension may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of
which
counterparts together shall constitute one and the same instrument.
[Signature
Page Follows]
IN
WITNESS WHEREOF, this Sixth Extension is hereby executed as of the date first
above written.
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LIFEWAY
FOODS, INC.,
an
Illinois corporation
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XX
XXXXXX, L.P.,
a
Delaware limited partnership
By:
XX Xxxxxx General Partner, LLC, its general partner
|
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By:
/s/ Xxxxx Xxxxxxxxxx
Name:
Xxxxx Xxxxxxxxxx
Its:
President
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By:
/s/ Xxxxxxx Xxxxx
Name:
Xxxxxxx Xxxxx
Its:
Assistant Secretary
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