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EXHIBIT 10.1
STOCKHOLDERS AGREEMENT
This STOCKHOLDERS AGREEMENT ("Agreement"), dated as of January
28, 1999, is among New World Pasta Company, a Delaware corporation (the
"Company"), New World Pasta, LLC, a Delaware limited liability company ("New
World"), Xxxxxx Pasta, LLC, a Delaware limited liability company ("Xxxxxx
Pasta"), and Hershey Chocolate & Confectionery Corporation, a Delaware
corporation ("Hershey") (each of New World, Xxxxxx Pasta and Hershey being
referred to herein as a "Stockholder" and collectively being referred to herein
as the "Stockholders"), and, solely for purposes of Sections 2.02(c) and 4.01(c)
hereof, the Xxxxxx Pasta Controlling Members (as defined herein).
W I T N E S S E T H
WHEREAS, Hershey, the Company, New World and certain other
entities have entered into a Recapitalization Agreement dated as of December 15,
1998, as amended (the "Recapitalization Agreement");
WHEREAS, pursuant to the Recapitalization Agreement, prior to or
at the closing on the date of this Agreement of the transactions contemplated
thereby, Hershey has, among other things, (i) transferred, or caused to be
transferred, certain assets, subject to certain liabilities, to the Company and
(ii) caused the Company to be recapitalized (collectively, the "Transactions"),
all in accordance with the terms and conditions set forth in the
Recapitalization Agreement;
WHEREAS, as a result of the Transactions, each Stockholder owns
(i) the number of shares of common stock, par value $.01 per share, of the
Company ("Company Common Stock") set forth in column A opposite such
Stockholder's name on Exhibit B hereto and (ii) the number of shares of 12%
Cumulative, Redeemable Preferred Stock par value $.01 per share, of the Company
("Company Preferred Stock") set forth in column B opposite such Stockholder's
name on Exhibit B hereto; and
WHEREAS, in connection with the Transactions, the Company and
each Stockholder desire to enter into this Agreement, all in accordance with the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for good and valuable consideration, the receipt
of which is hereby acknowledged, the parties hereby agree as follows:
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ARTICLE I
Certain Definitions
For purposes of this Agreement, the following capitalized terms
shall have the following meanings:
(a) "Affiliate" shall have the meaning set forth in Rule
405 promulgated under the Securities Act.
(b) "Commission" shall mean the United States Securities
and Exchange Commission or any successor agency.
(c) "Credit Agreement" shall mean the Credit Agreement
dated as of January 28, 1999 (the "Initial Credit Agreement") among the Company
as borrower, various financial institutions as lenders, certain financial
institutions as co-agents, Xxxxxx Xxxxxxx Senior Funding, Inc. as syndication
agent and The Bank of Nova Scotia, as amended, modified, supplemented, refunded,
refinanced, restructured, renewed, repaid, restated, substituted or replaced
from time to time (whether in whole or in part), including, without limitation,
any other credit agreement providing for revolving credit loans, term loans
and/or letters of credit between the Company and one or more lenders and agents
(whether with the original lenders and agents under the Initial Credit Agreement
or otherwise).
(d) "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended, and the rules and regulations promulgated thereunder.
(e) "Initial Public Offering" shall mean (i) the first
registration statement filed under the Securities Act (other than (A) a
registration statement filed on Form S-4 or any successor form or (B) a
registration statement filed on Form S-8 or any successor form) with respect to
an underwritten offering, whether primary or secondary, of shares of Company
Common Stock is declared effective by the Commission and (ii) any such
securities so registered are issued and sold pursuant thereto.
(f) "Market Value" shall mean the average of the closing
sale prices of the Company Common Stock (as reported on the principal national
securities exchange on which the Company Common Stock is then listed, which for
these purposes includes the Nasdaq Stock Market) during each of the five (5)
consecutive trading days ending on the trading day immediately prior to the
date of any Demand.
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(g) "Permitted Transferee" shall mean, with respect to any
Person: (i) any descendant of such Stockholder; (ii) the Company; (iii) in the
case of any such Person that is a partnership, limited liability company,
corporation or trust, the partners of a partnership that is such Person, the
members of a limited liability company that is such Person, the stockholders of
a corporation that is such Person, the beneficiaries of a trust that is such
Person, or a successor partnership all of the partners of which, or a successor
limited liability company all of the members of which, or a successor
corporation all of the stockholders of which, are the Persons who were the
partners of such partnership, members of such limited liability company, or the
stockholders of such corporation or the beneficiaries of such trust, immediately
prior to the distribution by such Person; (iv) a transferee by testamentary or
intestate disposition; (v) a transferee by inter vivos transfer to the
transferring Person's spouse, children and/or other lineal descendants or any
trusts or limited partnerships or other entities established solely for the
benefit of such Persons; (vi) a successor nominee or trustee for the beneficial
owner for which such Person acts as nominee or trustee, as the case may be;
(vii) the lenders (or any agent acting on their behalf) under the Credit
Agreement pursuant to a pledge of the Stockholder's Shares to secure the
Company's obligations in connection with the Credit Agreement and, after
foreclosure thereon by such lenders (or agent), any transferee or transferees of
such lenders (or agent); (viii) subject to New World's consent (which shall not
be unreasonably withheld or delayed), any Affiliate of such Person, which such
Person controls; or (ix) solely with respect to Hershey, Hershey Foods
Corporation, a Pennsylvania corporation ("HFC"), and any one or more controlled
subsidiaries of HFC.
(h) "Person" shall mean any individual, firm, partnership,
limited liability company, corporation or other entity, and shall include any
successor (by merger or otherwise) of any such entity.
(i) "Registrable Securities" shall mean (i) the shares of
Company Common Stock owned by each Stockholder on the date hereof, as set forth
opposite each Stockholder's name on Exhibit B hereto, and (ii) all additional
shares of Company Common Stock acquired by each such Stockholder (and, in the
case of Xxxxxx Pasta, the members of such Stockholder who are officers or
directors of the Company) after the date hereof. As to any particular
Registrable Securities, such securities shall cease to be Registrable Securities
when (i) a registration statement registering such securities under the
Securities Act has been declared effective and such securities have been sold or
otherwise transferred by the holder thereof pursuant to such effective
registration statement, (ii) such securities are sold in accordance with Rule
144 (or any successor provision) promulgated under the Securities Act or (iii)
such securities are transferred under circumstances in which all legends borne
by the certificates for such securities relating to restrictions on
transferability thereof, whether under the Securities Act or otherwise, are
removed by the Company.
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(j) "Requisite Amount" shall mean Registrable Securities
having an aggregate Market Value as of the date of any Demand (as hereinafter
defined) of at least $2.5 million.
(k) "Securities Act" shall mean the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder.
(l) "Shares" shall mean the shares of Company Common Stock
and Company Preferred Stock owned by each Stockholder on the date hereof, as set
forth opposite each such Stockholder's name on Exhibit B hereto, and all
additional shares of Company Common Stock and Company Preferred Stock acquired
by any Stockholder (and, in the case of Xxxxxx Pasta, the members of such
Stockholder who are officers or directors of the Company) after the date hereof.
(m) "Transfer" shall mean any voluntary or involuntary
attempt, directly or indirectly through the transfer of interests in controlled
Affiliates or otherwise, to offer, transfer, sell, assign, pledge, hypothecate
or otherwise dispose of any Shares, or the consummation of any such transaction,
or the soliciting of any offer to purchase or otherwise acquire, or take a
pledge of, any of the Shares, other than hedging or other derivative
transactions that hedge or otherwise relate to investment risks in respect of
any of the Shares.
ARTICLE II
Representations and Warranties; Certain Covenants
Section 2.01 Representations and Warranties of the Company.
The Company represents and warrants to each Stockholder, as of
the date hereof, as follows:
(a) Corporate Authority. The Company has full power and
authority to execute, deliver and perform this Agreement;
(b) Due Authorization. This Agreement has been duly and
validly authorized, executed and delivered by the Company and constitutes a
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except that (i) the enforceability hereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect affecting creditors' rights, (ii) the remedy of
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specific performance and injunctive and other forms of equitable relief may be
subject to certain equitable defenses and to the discretion of the court before
which any proceedings therefor may be brought, and (iii) the rights to indemnity
hereunder may be limited by federal or state securities laws or the public
policy underlying such laws;
(c) No Conflict. The execution, delivery and performance
of this Agreement by the Company do not violate or conflict with or constitute a
default under (i) the Company's certificate of incorporation or by-laws, (ii)
any judgment, order or decree, or statute, law, ordinance, rule or regulation,
of any governmental entity applicable to the Company or (iii) any material
agreement to which it is a party or by which it or its property is bound;
(d) Registration Rights. Except as provided herein, no
other party is entitled to any registration or similar right with respect to any
securities of the Company; and
(e) Voting Agreements. Except as set forth herein, the
Company is not aware of any voting trust, voting agreement or arrangement with
respect to any of its voting securities.
Section 2.02 Representations and Warranties of the Stockholders and Members.
(a) Each Stockholder individually represents and warrants
to each other Stockholder and the Company as follows:
(i) Corporate Authority. The Stockholder has full
power, capacity and authority to execute, deliver and perform this Agreement;
(ii) Due Authorization. This Agreement has been
duly and validly authorized, executed and delivered by the Stockholder and
constitutes a valid and binding obligation of the Stockholder, enforceable
against the Stockholder in accordance with its terms, except that (A) the
enforceability hereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect affecting creditors'
rights, (B) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to certain equitable defenses and to the
discretion of the court before which any proceedings therefor may be brought,
and (C) the rights to indemnity and contribution hereunder may be limited by
federal or state securities laws or the public policy underlying such laws; and
(iii) No Conflict. The execution, delivery and
performance of this Agreement by the Stockholder do not violate or conflict with
or constitute a default under (A) the Stockholder's organizational documents,
(B) any judgment, order or decree or statute,
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law, ordinance, rule or regulation of any governmental entity applicable to the
Stockholder, or (C) any material agreement to which it is a party or by which it
or its property is bound.
(b) Xxxxxx Pasta represents and warrants to each other
Stockholder and the Company that, as of the date hereof, other than those
Persons listed on Exhibit A, no other Person, whether directly or indirectly, is
a member of, or owns any equity interest in, Xxxxxx Pasta, or any right that is
exercisable for, convertible into or exchangeable for any such interest, or has
any right, whether direct or indirect, to become such a member or acquire any
such interest or right.
(c) Each Xxxxxx Pasta Controlling Member individually
represents and warrants to each Stockholder, the Company and each other such
member, as of the date hereof, as follows:
(i) Authority. Such member has full power, capacity
and authority to execute, deliver and perform this Agreement;
(ii) Due Authorization. This Agreement has been
duly and validly authorized, executed and delivered by such member and
constitutes a valid and binding obligation of, enforceable against such member
in accordance with its terms, except that (i) the enforceability hereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect affecting creditors' rights, (ii) the remedy of
specific performance and injunctive and other forms of equitable relief may be
subject to certain equitable defenses and to the discretion of the court before
which any proceedings therefor may be brought, and (iii) the rights to indemnity
and contribution hereunder may be limited by federal or state securities laws or
the public policy underlying such laws; and
(iii) No Conflict. The execution, delivery and
performance of this Agreement by such member do not violate or conflict with or
constitute a default under (A) any judgment, order or decree or statute, law,
ordinance, rule or regulation of any governmental entity applicable to such
member, or (B) any material agreement to which he or it is a party or by which
he or it or his or its property is bound.
Section 2.03 Covenants.
The Company covenants to each Stockholder that it will from and
after the Initial Public Offering, timely file all reports required to be filed
by it under the Exchange Act, and if at any time the Company is not required to
file such reports, it will take such further action as a Stockholder may
reasonably require, including, without limitation, supply and make publicly
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available any other information in the possession of or reasonably obtainable by
the Company, with the purpose of allowing such holder to avail itself of Rule
144 of the Securities Act or any other rule or regulation of the Commission
allowing it to sell securities without registration under the Securities Act.
Upon the request of any Stockholder, the Company will deliver to such
Stockholder a written statement as to its compliance with such filing
requirements.
ARTICLE III
Board of Directors
Section 3.01 Composition.
(a) Members. Each Stockholder (other than Hershey) shall
use its best efforts to cause the Board initially to consist of seven (7)
members, of which: (i) four (4) members shall be designees of New World ("New
World Directors"); (ii) two (2) members shall be designees of Xxxxxx Pasta, who
shall initially be Xxxx X. Xxxxxx and Xxxxxxx X. Xxxx (the "Xxxxxx Pasta
Directors"); and (iii) one (1) member shall be the Chief Executive Officer of
the Company, who shall initially be C. Xxxxxx Xxxxxxx. During the Term of this
Agreement, the number of directors may be increased with the Board having
authority to appoint individuals to fill such new director positions; provided,
however, that such additional directors, including any successors thereof, shall
be appointed by a majority of both the New World Directors and the Xxxxxx Pasta
Directors, voting separately; and provided further that (i) notwithstanding any
provision hereof to the contrary, C. Xxxxxx Xxxxxxx shall have the right to
serve as a director of the Company through the fifth anniversary of the date of
this Agreement and (ii) directors designated solely by New World, including the
New World Directors, shall at all times during the Term constitute a majority of
the Board. During the term of this Agreement and subject to the fiduciary duties
of the Board, the Company shall use its best efforts and shall exercise all
authority under applicable law to nominate for election and cause to be elected
or appointed, as the case may be, as directors of the Company a slate of
directors consisting of individuals meeting the requirements of the previous
sentence.
(b) Compensation Committee. The Board shall establish a
compensation committee of the Board (the "Compensation Committee") which shall
consist of no less than one Xxxxxx Pasta Director. Initially, Xx. Xxxx shall
serve as a member of the Compensation Committee.
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(c) Removal. No Stockholder (other than Hershey) shall
take any action to cause the removal of any director designated by any other
Stockholder hereunder other than for cause (as determined by a court of
competent jurisdiction).
(d) Vacancies. If at any time a vacancy is created on the
Board by reason of the death, removal or resignation of any director who was
nominated and elected as a director pursuant to Section 3.01(a) above or this
Section 3.01(d), the Stockholders (other than Hershey) shall, as soon as
practicable, vote their shares of Company Common Stock or act by written consent
with respect to such Shares to elect the Person designated to fill such vacancy
or vacancies by the Stockholder who designated such former director to fill such
vacancy for the unexpired term of the director whom such Person is replacing.
The majority of the directors then comprising the Board shall have the right to
designate nominees to be elected to the Board for any available directorship as
to which no Stockholder has the right to designate a nominee pursuant to Section
3.01(a) hereof.
(e) Decrease in Shares Held. Notwithstanding anything to
the contrary in this Section 3.01, in the event that any Stockholder entitled
pursuant to Section 3.01(a) to designate one or more individuals for nomination
and election to the Board shall, together with its Affiliates, cease to own at
least 25% of the Shares owned by such Stockholder on the date hereof, subject to
Section 7.13 hereof, such Stockholder shall no longer have any right pursuant to
this Agreement to designate any nominee for election to the Board.
(f) Voting Agreement. Each Stockholder (other than
Hershey) agrees that, during the Term of this Agreement, (i) it will be present,
in person or represented by proxy, at all stockholder meetings of the Company
for the election of directors, so that all shares of Company Common Stock
beneficially owned by it shall be counted for the purpose of determining the
presence of a quorum for the election of directors at such meetings and (ii) it
shall vote, or act by consent with respect to, all shares of Company Common
Stock beneficially owned by it for the election of the nominees for the Board
nominated by the Board so long as such nominees consist of individuals meeting
the requirements of this Section 3.01. Except as specifically set forth in this
Section 3.01, each Stockholder shall be entitled to vote its shares of Company
Common Stock on all other matters as it deems fit.
(g) Consultation. New World shall cause the New World
Directors to consult with, and provide an opportunity to participate in
discussions to, the Xxxxxx Pasta Directors, with respect to all material
acquisitions, dispositions, mergers, business combinations or similar
transactions involving the Company or any of its subsidiaries and amendments to
the Certificate of Incorporation or By-laws of the Company, prior to approving
any such transaction or amendment.
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ARTICLE IV
Restrictions on Transfer
Section 4.01 General Restrictions.
(a) Except as set forth in Section 4.01(b), 4.04 and 4.05
hereof, no Stockholder (other than New World) may Transfer any Shares during the
Term of this Agreement except for Transfers (i) to any of its Permitted
Transferees (provided, however, that prior to any Transfer of Shares, such
Permitted Transferee (other than a Permitted Transferee described in clause
(vii) of the definition thereof) shall agree in writing to take such Shares
subject to, and to comply with, all of the provisions of this Agreement, a copy
of which agreement shall be filed with the Secretary of the Company and shall
include the address of such transferee to which notices hereunder shall be
sent), (ii) pursuant to any offer, including a tender or exchange offer, by any
Person (including the Company) to purchase all of the outstanding shares of
Company Common Stock, which offer has been approved by the Board, (iii) pursuant
to any transaction requiring the approval of the holders of at least a majority
of the shares of outstanding Company Common Stock and as to which the requisite
approval of the Stockholders shall have been obtained, and (iv) at any time
after 180 days following the consummation of the Initial Public Offering (the
"Initial Sale Date"), (A) of shares of Company Common Stock by Xxxxxx Pasta to
members of Xxxxxx Pasta, other than to Messrs. C. Xxxxxx Xxxxxxx, Xxxx Xxxxxx
and Xxxxxxx Xxxx and Xxxxxx Milling Company (such members being collectively
referred to herein as the "Xxxxxx Pasta Minority Members"), (B) of shares of
Company Common Stock by the Xxxxxx Pasta Minority Members and (C) of shares of
Company Common Stock by Hershey.
(b) (i) Notwithstanding the provisions of Section 4.01(a)
hereof, following the Initial Sale Date, each of Messrs. C. Xxxxxx Xxxxxxx, Xxxx
Xxxxxx and Xxxxxxx Xxxx and Xxxxxx Milling Company (collectively, the "Xxxxxx
Pasta Controlling Members") shall be permitted to Transfer, pursuant to a
registration statement filed under Article V hereof or otherwise, the following
percentage of the shares of Company Common Stock indirectly owned by such Person
as of the date hereof, as a result of such Person's membership interest in
Xxxxxx Pasta or its members, during the time periods indicated below:
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Aggregate Percentage of Shares
of Company Common Stock
indirectly owned by each of the
Xxxxxx Pasta Controlling Members
on the date hereof that may be
Time Period Transferred
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The Initial Sale Date 35%
to
the second anniversary thereof
The Initial Sale Date 50
to
the sixth anniversary thereof
thereafter 75
(ii) Each Xxxxxx Pasta Controlling Member shall
provide the Company and New World with written notice of any Transfer proposed
to be made pursuant to Section 4.01(b) hereof no less than five business days
prior to such Transfer.
(iii) In addition, the Xxxxxx Pasta Controlling
Members may Transfer additional shares of Company Common Stock if approved by
New World in its sole and absolute discretion.
(c) Each Xxxxxx Pasta Controlling Member agrees not to,
and not to permit any member of Xxxxxx Pasta, as listed on Exhibit A-1, to,
Transfer any equity interest in Xxxxxx Pasta, or any successor thereof (whether
by merger or otherwise), during the Term of this Agreement, except for Transfers
(i) to Permitted Transferees who agree to acquire such interest subject to the
provisions of this Section 4.01(c), (ii) of up to $1,400,000 of membership
interests by Xxxxxx Milling Company to its employees or other representatives
and (iii) in the case of the Xxxxxx Pasta Minority Members, to such other
transferees as may be approved by New World, which approval may not be
unreasonably withheld or delayed.
(d) Notwithstanding the foregoing, the restrictions on
Transfer contained in this Section 4.01 shall terminate and cease to exist in
the event that (i) New World is no longer controlled by any of Messrs. Xxxx
Xxxx, Xxxxxxx Xxxxxxxx or Xxxxx Xxxx or (ii) shares
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of Company Common Stock are distributed to the limited partners of Xxxxxx
Xxxxxxxxxx & Levy Fund III, L.P.
Section 4.02 Compliance with Securities Laws.
Each Stockholder agrees that every Transfer of its Shares shall
comply with all federal and state securities laws applicable to such
transaction. At the request of the Company, the transferring Stockholder shall
deliver to the Company an opinion of counsel, which counsel and opinion shall be
reasonably satisfactory to the Company, to the effect that the Transfer
satisfies this Section 4.02.
Section 4.03 Transfers Not In Compliance.
In the event of any purported Transfer by a Stockholder or a
member of Xxxxxx Pasta, as the case may be, that does not comply with this
Agreement, the purported transferee or successor by operation of law shall not
be deemed to be a stockholder of the Company or a member of Xxxxxx Pasta, as the
case may be, for any purpose and shall not be entitled to any of the rights of a
stockholder or member, as the case may be, including, without limitation, the
right to vote the Shares or interests or to receive a certificate for the Shares
or interests or any dividends or other distributions on or with respect to the
Shares or interests.
Section 4.04 Tag-Along Rights.
(a) Except as provided below, if New World proposes to
directly or indirectly Transfer for value any of its Shares to a Person (other
than to Persons described in clause (iii) of the definition of Permitted
Transferee of New World), New World shall provide each other Stockholder (each,
a "Notice Recipient") and the Company with not less than twenty (20) business
days' prior written notice of such proposed sale, which notice shall include all
of the material terms and conditions of such proposed sale and which shall
identify such Shares and such purchaser (the "Sale Notice"); and each Notice
Recipient shall have the option, exercisable by written notice to New World
within ten (10) business days after receipt of the Sale Notice, to require New
World to arrange for such purchaser to purchase the same percentage (the
"Percent age") of such Shares then owned by such Notice Recipient as the ratio
of the total number of such Shares which are to be sold by New World pursuant to
the proposed sale to the total number of such Shares owned by New World
immediately prior to such Transfer, or any lesser amount of such Shares as such
Notice Recipient shall desire, together with New World's Shares at the same time
as, and upon the same terms and conditions (including all direct or indirect
consideration or compensation) at which, New World sells its Shares. If a Notice
Recipient shall so elect, New World shall either (a) arrange for the proposed
purchaser to purchase all (or such portion as such
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Notice Recipient shall specify) of the same Percentage of such Shares then owned
by such Notice Recipient at the same time as, and upon the same terms and
conditions at which New World sells its Shares, including any related covenant
not to compete or similar restriction, provided that, if such purchaser shall
elect to purchase only such aggregate number of such Shares as originally agreed
with New World, then the number of such Shares to be sold by New World and all
Notice Recipients electing to participate in the proposed sale shall be reduced
pro rata to such aggregate number, or (b) not effect the proposed sale to such
purchaser. In the event that a Notice Recipient does not exercise its right to
participate in such sale or declines to so participate, New World shall have 120
days from the date of such Sale Notice to consummate the transaction on terms
substantially no more favorable than those set forth therein without being
required to provide an additional Sale Notice to the other Stockholders.
(b) Each of the Stockholders hereby acknowledges and
agrees that (i) New World and Xxxxxx Pasta may pledge all of the Shares owned by
it to the Permitted Transferees described in clause (vii) of the definition of
Permitted Transferees, and (ii) notwithstanding anything to the contrary
contained herein, any Transfer to the Permitted Transferees described in clause
(vii) of the definition of Permitted Transferees shall be made free and clear of
the provisions of this Agreement (including, without limitation, all
restrictions and rights in connection with Transfers).
Section 4.05 Drag-Along Rights.
If at any time New World proposes to directly or indirectly
Transfer for value all or substantially all of its Shares to a Person (other
than to Persons described in clause (iii) of the definition of Permitted
Transferee or to an Affiliate of New World), New World shall have the right,
upon not less than twenty (20) business days' prior written notice of such
proposed sale (the "Purchase Notice"), which notice shall include all of the
material terms and conditions of such proposed sale and which shall identify
such Shares and the proposed purchaser, to require each other Stockholder to
sell to such purchaser that number of such Shares ("Stockholder Call Shares")
equal to the product, rounded down to the nearest whole number, of (a) a
fraction, the numerator of which is the number of such Shares to be sold by New
World and the denominator of which is the number of such Shares then owned by
New World, multiplied by (b) the number of such Shares then owned by the
Stockholder, or any lesser number of such Shares as New World shall desire. If
New World shall so elect, New World shall arrange for such purchaser to purchase
the Stockholder Call Shares at the same time as, and upon the same terms and
conditions (including all direct or indirect consideration or compensation),
including any related covenant not to compete or similar restriction, at which
New World sells its Shares. Upon receipt of the Purchase Notice, the Stockholder
shall cooperate with New World and otherwise take, or cause to be taken, all
reasonable actions and do, or cause to be done, all things reason-
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ably necessary and appropriate to so enter into, consummate and make effective
the sale and purchase of the Stockholder Call Shares, together with New World's
Shares. Notwithstanding any provision hereof to the contrary, from and after the
date on which New World consummates a Transfer subject to this Section 4.05, (a)
the Stockholder shall have no rights of a stockholder with respect to the
Stockholder Call Shares sold and purchased in such transaction and (b) the
Stockholder shall not seek, nor shall the Company have any obligation, to
enforce any such right with respect to such Stockholder Call Shares.
Section 4.06 Effect of Notices.
Notwithstanding any provision hereof to the contrary, the giving
to any Stock holder of any Sale Notice or any Purchase Notice shall not obligate
New World to consummate or effect any transaction referred to therein.
ARTICLE V
Registration Rights
Section 5.01 Demand Registrations.
(a) Requests for Registration. At any time after the
Initial Sale Date, subject to the conditions set forth herein (including the
provisions of Article IV hereof), Stockholders (other than Hershey) holding the
Requisite Amount of Registrable Securities shall be entitled to make a written
request of the Company (a "Demand") for registration under the Securities Act of
all or part of the Registrable Securities (a "Demand Registration"). Such Demand
shall specify: (i) the aggregate number of Registrable Securities requested to
be registered, (ii) the intended method of distribution in connection with such
Demand Registration to the extent then known and (iii) the identity of each
Stockholder (a "Demanding holder") requesting such Demand. Within ten (10) days
after receipt of a Demand, the Company shall give written notice of such Demand
to all other Stockholders and shall include in such registration all
Registrable Securities with respect to which the Company has received a written
request for inclusion therein within twenty (20) days after the receipt by such
Stockholder of the Company's notice required by this paragraph.
(b) Number of Demands. Each of (i) New World and (ii)
Xxxxxx Pasta shall be entitled to three (3) Demand Registrations; provided,
however, that any of (i) New World or (ii) Xxxxxx Pasta that is identified as a
Demanding holder in any Demand Registration shall be deemed to have made a
demand with respect to such Demand Registration.
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(c) Satisfaction of Obligations. A registration shall not
be treated as a permitted Demand for a Demand Registration until (i) the
applicable registration statement under the Securities Act has been filed with
the Commission with respect to such Demand Registration (which shall include any
registration statement that is not withdrawn by holders of Registrable
Securities in the circumstances contemplated by Section 5.03), and (ii) such
registration statement shall have been maintained continuously effective for a
period of at least one hundred and twenty (120) days or such shorter period
during which all Registrable Securities included therein have been disposed of
thereunder in accordance with the method of distribution set forth in such
registration statement.
(d) Availability of Short Form Registrations. The Company
shall use its best efforts to comply with the requirements for use of short form
registration for the sale of Registrable Securities under the Securities Act.
(e) Restrictions on Demand Registrations. The Company
shall not be obligated (i) in the case of a Demand Registration, to maintain the
effectiveness of a registration statement under the Securities Act, for a period
longer than one hundred and twenty (120) days or (ii) to effect any Demand
Registration within one hundred eighty (180) days after the effective date of
(A) a "firm commitment" underwritten registration in which all Stockholders were
given "piggyback" rights pursuant to Section 5.02 hereof (provided that, with
respect to such a registration in which such piggyback rights were exercised,
each such Stockholder exercising such piggyback rights was permitted to include
in such registration all of the Registrable Securities that such Stockholder
sought to include therein) or (B) any other Demand Registration. In addition,
the Company shall be entitled to postpone (upon written notice to all Stock
holders) for up to ninety (90) days the filing or the effectiveness of a
registration statement in respect of a Demand (but no more than once in any
period of twelve (12) consecutive months) if the Board determines in good faith
and in its reasonable judgment that effecting the Demand Registration in respect
of such Demand would have a material adverse affect on any proposal or plan by
the Company to engage in any material debt or equity offering, material
acquisition or disposition of assets (other than in the ordinary course of
business) or any merger, consolidation, tender offer or other similar material
transaction. In the event of a postponement by the Company of the filing or
effectiveness of a registration statement in respect of a Demand, the Demanding
holders shall have the right to withdraw such Demand in accordance with Section
5.03 hereof.
(f) Participation in Demand Registrations. The Company
shall not include any securities other than Registrable Securities in a Demand
Registration, except with the written consent of the holders of ninety percent
of the Registrable Securities sought to be registered pursuant to such Demand
Registration held by all the Demanding holders. If, in
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connection with a Demand Registration, any managing underwriter (or, if such
Demand Registration is not an underwritten offering, a nationally recognized
independent underwriter selected by the Demanding holders of a majority of the
Registrable Securities held by all the Demanding holders (which such underwriter
shall be reasonably acceptable to the Company and whose fees and expenses shall
be borne solely by the Company)) advises the Company and the Demanding holders
of a majority of the Registrable Securities held by all the Demanding holders
that, in its opinion, the inclusion of all the Registrable Securities and, if
authorized pursuant to this Article V, other securities of the Company, in each
case, sought to be registered in connection with such Demand Registration would
adversely affect the marketability of the Registrable Securities sought to be
sold pursuant thereto, then the Company shall include in the registration
statement applicable to such Demand Registration only such securities as the
Company and the holders of Registrable Securities sought to be registered
therein ("Demanding Sellers") are advised by such underwriter can be sold
without such an effect (the "Maximum Demand Number"), as follows and in the
following order of priority:
(i) first, the number of Registrable Securities
sought to be registered by each Demanding Seller and Hershey, pro rata in
proportion to the number of Registrable Securities sought to be registered by
all such sellers; and
(ii) second, if the number of Registrable
Securities to be included under clause (i) above is less than the Maximum Demand
Number, the number of securities sought to be included by each other seller, pro
rata in proportion to the number of securities sought to be sold by all such
other sellers, which in the aggregate, when added to the number of securities to
be included pursuant to clause (i) above, equals the Maximum Demand Number.
(g) Selection of Underwriters. If the Demanding holders of
a majority of the Registrable Securities held by all the Demanding holders
request that such Demand Registration be an underwritten offering, then the
Company shall select a nationally recognized underwriter or underwriters to
manage and administer such offering, such underwriter or underwriters, as the
case may be, to be subject to the approval of the Demanding holders of a
majority of the Registrable Securities held by all the Demanding holders, which
approval shall not be unreasonably withheld or delayed.
(h) Other Registrations. If the Company has received a
Demand and if the applicable registration statement in respect of such Demand
has not been withdrawn or abandoned, the Company will not file or cause to be
effected any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (other than a registration relating to the Company employee
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benefit plans, exchange offers by the Company or a merger or acquisition of a
business or assets by the Company, including, without limitation, a registration
on Form S-4 or S-8 or any successor form), whether on its own behalf or at the
request of any holder or holders of such securities, until a period of at least
ninety (90) days has elapsed from the effective date of any Demand Registration,
unless a shorter period of time is approved by the Demanding holders of a
majority of the Registrable Securities held by all the Demanding holders.
Notwithstanding the foregoing, the Company shall be entitled to postpone any
such Demand Registration and may file or cause to be effected such other
registration in accordance with the terms of Section 5.01(e) hereof.
Section 5.02 Piggyback Registrations.
(a) Right to Piggyback. At any time after the Initial Sale
Date, whenever the Company proposes to register any of its equity securities or
securities convertible or exchangeable into or exercisable for its equity
securities under the Securities Act (other than a registration relating to the
Company employee benefit plans, exchange offers by the Company or a merger or
acquisition of a business or assets by the Company including, without
limitation, a registration on Form S-4 or Form S-8 or any successor form) (a
"Piggyback Registration"), subject to the conditions set forth herein (including
the provisions of Article IV hereof), the Company shall give all Stockholders
prompt written notice thereof (but not less than ten (10) business days prior to
the filing by the Company with the Commission of any registration statement with
respect thereto). Such notice (a "Piggyback Notice") shall specify, at a
minimum, the number of securities proposed to be registered, the proposed date
of filing of such registration statement with the Commission, the proposed
method of distribution, the proposed managing underwriter or underwriters (if
any and if known), and a good faith estimate by the Company of the proposed
minimum offering price of such securities. Upon the written request of a Stock
holder given within ten (10) business days of such Stockholder's receipt of the
Piggyback Notice (which written request shall specify the number of Registrable
Securities intended to be disposed of by such Stockholder and the intended
method of distribution thereof), the Company shall include in such registration
all Registrable Securities with respect to which the Company has received such
written requests for inclusion.
(b) Priority on Piggyback Registrations. If, in connection
with a Piggyback Registration, any managing underwriter (or, if such Piggyback
Registration is not an underwritten offering, a nationally recognized
independent underwriter selected by the Company (reasonably acceptable to the
holders of a majority of the Registrable Securities sought to be included in
such Piggyback Registration and whose fees and expenses shall be borne solely by
the Company)) advises the Company and the holders of the Registrable Securities
sought to be included in such Piggyback Registration, that, in its opinion, the
inclusion of all the securities
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sought to be included in such Piggyback Registration by the Company, any Persons
who have sought to have shares registered thereunder pursuant to rights to
demand (other than pursuant to Section 5.01, "piggyback" or other incidental or
participation registration rights) such registration (such demand rights being
"Other Demand Rights" and such Persons being "Other Demanding Sellers"), any
holders of Registrable Securities seeking to sell such securities in such
Piggyback Registration ("Piggyback Sellers") and any other proposed sellers, in
each case, if any, would adversely affect the marketability of the securities
sought to be sold pursuant thereto, then the Company shall include in the
registration statement applicable to such Piggyback Registration only such
securities as the Company, the Other Demanding Sellers, and the Piggyback
Sellers are so advised by such underwriter can be sold without such an effect
(the "Maximum Piggyback Number"), as follows and in the following order of
priority:
(i) if the Piggyback Registration is an offering on
behalf of the Company and not any Person exercising Other Demand Rights (whether
or not other Persons seek to include securities therein pursuant to "piggyback"
or other incidental or participatory registration rights) (a "Primary
Offering"), then (A) first, such number of securities to be sold by the Company
as the Company, in its reasonable judgment and acting in good faith and in
accordance with sound financial practice, shall have determined, and (B) second,
if the number of securities to be included under clause (A) above is less than
the Maximum Piggyback Number, the number of Registrable Securities sought to be
registered by each Piggyback Seller, pro rata in proportion to the number of
Registrable Securities sought to be registered by all the Piggyback Sellers pro
rata in proportion to the Registrable Securities sought to be registered by all
the Piggyback Sellers and all other proposed sellers, which in the aggregate,
when added to the number of securities to be registered under clause (A) above,
equals the Maximum Piggyback Number; and
(ii) if the Piggyback Registration is an offering
other than pursuant to a Primary Offering, then (A) first, such number of
securities sought to be registered by each Other Demanding Seller, pro rata in
proportion to the number of securities sought to be registered by all such Other
Demanding Sellers and (B) second, if the number of securities to be included
under clause (A) above is less than the Maximum Piggyback Number, the number of
Registrable Securities sought to be registered by each Piggyback Seller, pro
rata in proportion to the number of Registrable Securities sought to be
registered by all the Piggyback Sellers and all other proposed sellers, which in
the aggregate, when added to the number of securities to be registered under
clause (A) above, equals the Maximum Piggyback Number.
(c) Withdrawal by the Company. If, at any time after
giving written notice of its intention to register any of its securities as set
forth in Section 5.02 and prior to time the registration statement filed in
connection with such registration is declared effective, the
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Company shall determine for any reason not to register such securities, the
Company may, at its election, give written notice of such determination to each
Stockholder and thereupon shall be relieved of its obligation to register any
Registrable Securities in connection with such particular withdrawn or abandoned
registration (but not from its obligation to pay the Registration Expenses (as
defined below) in connection therewith as provided herein). In the event that
the Piggyback Sellers of such a registration hold the Requisite Amount of
Registrable Securities, such holders may continue the registration as a Demand
Registration. The continuation of such registration shall be counted as a Demand
for all Stockholders who continue as participants in such registration.
Section 5.03 Withdrawal Rights.
Any Stockholder having notified or directed the Company to
include any or all of its Registrable Securities in a registration statement
under the Securities Act shall have the right to withdraw any such notice or
direction with respect to any or all of the Registrable Securities designated
for registration thereby by giving written notice to such effect to the Company
at least five (5) business days prior to the effective date of such registration
statement. In the event of any such withdrawal, the Company shall not include
such Registrable Securities in the applicable registration and such Registrable
Securities shall continue to be Registrable Securities hereunder. No such
withdrawal shall affect the obligations of the Company with respect to the
Registrable Securities not so withdrawn; provided that in the case of a Demand
Registration, if such withdrawal shall reduce the number of Registrable
Securities sought to be included in such registration below the Requisite
Amount, then the Company shall as promptly as practicable give each holder of
Registrable Securities sought to be registered notice to such effect, referring
to this Agreement and summarizing this Section 5.03, and within five (5)
business days following the effectiveness of such notice, either the Company or
the holders of a majority of the Registrable Securities sought to be registered
may, by written notices made to each holder of Registrable Securities sought to
be registered and the Company, respectively, elect that such registration
statement not be filed or, if theretofore filed, be withdrawn. During such five
(5) business day period, the Company shall not file such registration statement
if not theretofore filed or, if such registration statement has been theretofore
filed, the Company shall not seek, and shall use its best efforts to prevent,
the effectiveness thereof. Any registration statement withdrawn or not filed (i)
in accordance with an election by the Company, (ii) in accordance with an
election by the holders of the majority of the Registrable Securities sought to
be registered pursuant to such Demand Registration held by all the Demanding
holders pursuant to Section 5.01(e) hereof, (iii) in accordance with an election
by the holders of the majority of the Registrable Securities sought to be
registered pursuant to such Demand Registration held by all the Demanding
holders prior to the effectiveness of the applicable Demand Registration
Statement or (iv) in accordance with an election by the holders of the majority
of the Registrable
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Securities sought to be registered pursuant to such Demand Registration held by
all the Demanding holders subsequent to the effectiveness of the applicable
Demand Registration Statement, if any post-effective amendment or supplement to
the applicable Demand Registration Statement contains adverse information
regarding the Company shall not be counted as a Demand. Except as set forth in
clause (iv) of the previous sentence, any Demand withdrawn in accordance with an
election by the Demanding holders subsequent to the effectiveness of the
applicable Demand Registration Statement shall be counted as a Demand unless
such Demanding holders reimburse the Company for its reasonable out-of-pocket
expenses (but not including any Internal Expenses, as defined below) related to
the preparation and filing of such registration statement (in which event such
registration statement shall not be counted as a Demand hereunder). Upon the
written request of a majority of such Demanding holders, the Company shall
promptly prepare a definitive statement of such out-of-pocket expenses in
connection with such registration statement in order to assist such holders with
a determination in accordance with the next preceding sentence.
Section 5.04 Holdback Agreements.
Each Stockholder agrees not to effect any public sale or
distribution (including sales pursuant to Rule 144) of equity securities of the
Company, or any securities convertible into or exchangeable or exercisable for
such securities, during the ten (10) day period prior to the date which the
Company has, or in the case of a Demand Registration, the Demanding holders
have, notified the Stockholders that it or they intend to commence a public
offering through the sixty (60) day period immediately following the effective
date of any Demand Registration or any Piggyback Registration (in each case,
except as part of such registration), or, in each case, if later, the date of
any underwriting agreement with respect thereto; provided, however, that the
Stockholders shall not be obligated to comply with this Section 5.04 on more
than one (1) occasion in any nine (9) month period.
Section 5.05 Registration Procedures.
(a) Whenever the Stockholders have requested that any
Registrable Securities be registered pursuant to this Agreement (whether
pursuant to Demand Registration or Piggyback Registration), the Company (subject
to its right to withdraw such registration as contemplated by Section 5.02(c))
shall use its best efforts to effect the registration and the sale of such
Registrable Securities in accordance with the intended method of distribution
thereof and, in connection therewith, the Company shall as expeditiously as
possible:
(i) prepare and file with the Commission a
registration statement with respect to such Registrable Securities on any form
for which the Company then
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qualifies and is available for the sale of Registrable Securities to be
registered thereunder in accordance with the intended method of distribution and
use its best efforts to cause such registration statement to become effective
within ninety (90) days of the date thereof;
(ii) prepare and file with the Commission such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective for a continuous period of not less than one hundred and
twenty (120) days (or, if earlier, until all Registrable Securities included in
such registration statement have been sold thereunder in accordance with the
method of distribution set forth therein) and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement during such period in accordance with the intended
methods of disposition by the sellers thereof as set forth in such registration
statement (including, without limitation, by incorporating in a prospectus
supplement or post-effective amendment, at the request of a seller of
Registrable Securities, the terms of the sale of such Registrable Securities);
(iii) before filing with the Commission any such
registration statement or prospectus or any amendments or supplements thereto,
the Company shall furnish to counsel selected by the Demanding holders of a
majority of the Registrable Securities held by the Demanding holders, counsel
for the underwriter or sales or placement agent, if any, and any other counsel
for holders of Registrable Securities, if any, in connection therewith, drafts
of all such documents proposed to be filed and provide such counsel with a
reasonable opportunity for review thereof and comment thereon, such review to be
conducted and such comments to be delivered with reasonable promptness;
(iv) promptly (i) notify and provide copies to each
seller of Registrable Securities of each of (x) the filing and effectiveness of
the registration statement and prospectus and any amendment or supplements
thereto, (y) the receipt of any comments from the Commission or any state
securities law authorities or any other governmental authorities with respect to
any such registration statement or prospectus or any amendments or supplements
thereto, and (z) any oral or written stop order with respect to such
registration, any suspension of the registration or qualification of the sale of
such Registrable Securities in any jurisdiction or any initiation or threat of
any proceedings with respect to any of the foregoing and (ii) use its reasonable
best efforts to obtain the withdrawal of any order suspending the registration
or qualification (or the effectiveness thereof) or suspending or preventing the
use of any related prospectus in any jurisdiction with respect thereto;
(v) furnish to each seller of Registrable
Securities, the underwriters and the sales or placement agent, if any, and
counsel for each of the foregoing, a
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conformed copy of such registration statement and each amendment and supplement
thereto (in each case, including all exhibits thereto and documents incorporated
by reference therein) and such additional number of copies of such registration
statement, each amendment and supplement thereto (in such case without such
exhibits and documents), the prospectus (including each preliminary prospectus)
included in such registration statement and prospectus supplements and all
exhibits thereto and documents incorporated by reference therein and such other
documents as such seller, underwriter, agent or counsel may reasonably request
in order to facilitate the disposition of the Registrable Securities owned by
each such seller;
(vi) if requested by the managing underwriter or
underwriters of any registration or by the Demanding holders of a majority of
the Registrable Securities held by the Demanding holders, subject to approval of
counsel to the Company in its reasonable judgment, promptly incorporate in a
prospectus, supplement or post-effective amendment to the registration statement
such information concerning underwriters and the plan of distribution of the
Registrable Securities as such managing underwriter or underwriters or such
holders shall reasonably furnish to the Company in writing and request be
included therein, including, without limitation, with respect to the number of
Registrable Securities being sold by such holders to such underwriter or
underwriters, the purchase price being paid therefor by such underwriter or
underwriters and with respect to any other terms of the underwritten offering of
the Registrable Securities to be sold in such offering; and make all required
filings of such prospectus, supplement or post-effective amendment as soon as
possible after being notified of the matters to be incorporated in such
prospectus, supplement or post-effective amendment;
(vii) use its best efforts to register or qualify
such Registrable Securities under such securities or "blue sky" laws of such
jurisdictions as the holders of Registrable Securities sought to be registered
reasonably request and do any and all other acts and things which may be
reasonably necessary or advisable to enable the holders of Registrable
Securities sought to be registered to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such holders and keep such
registration or qualification in effect for so long as the registration
statement remains effective under the Securities Act (provided that the Company
shall not be required to (x) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
paragraph, (y) subject itself to taxation in any such jurisdiction where it
would not otherwise be subject to taxation but for this paragraph or (z) consent
to the general service of process in any jurisdiction where it would not
otherwise be subject to general service of process but for this paragraph);
(viii) notify each seller of such Registrable
Securities, at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, upon the discovery that, or of the happening
of any event as a result of which, the registration statement
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covering such Registrable Securities, as then in effect, contains an untrue
statement of a material fact or omits to state any material fact required to be
stated therein or any fact necessary to make the statements therein not
misleading, and promptly prepare and furnish to each such seller a supplement or
amendment to the prospectus contained in such registration statement so that
such registration statement shall not, and such prospectus as thereafter
delivered to the purchasers of such Registrable Securities shall not, contain an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or any fact necessary to make the statements therein not
misleading;
(ix) cause all such Registrable Securities to be
listed on the New York Stock Exchange and/or any other securities exchange and
included in each established over-the-counter market on which or through which
similar securities of the Company are listed or traded and, if not so listed or
traded, to be listed on the NASD automated quotation system ("Nasdaq") and if
listed on Nasdaq, use its reasonable efforts to secure designation of all such
Registrable Securities covered by such registration statement as a Nasdaq
"national market system security" within the meaning of Rule 11Aa2-1 under the
Securities Exchange Act of 1934, as amended, or, failing that, to secure Nasdaq
authorization for such Registrable Securities;
(x) make available for inspection by any seller of
Registrable Securities, any underwriter participating in any disposition
pursuant to such registration statement, and any attorney, accountant or other
agent retained by any such seller or underwriter all financial and other
records, pertinent corporate documents and properties of the Company, and cause
the Company's officers, directors, employees, attorneys and independent
accountants to supply all information reasonably requested by any such sellers,
underwriters, attorneys, accountants or agents in connection with such
registration statement. Information which the Company determines, in good faith,
to be confidential shall not be disclosed by such persons unless (x) the
disclosure of such information is necessary to avoid or correct a misstatement
or omission in such registration statement, or (y) the release of such
information is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction or governmental agency. Each seller of Registrable
Securities agrees, on its own behalf and on behalf of all its underwriters,
accountants, attorneys and agents, that any material 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 unless and until such is made generally available to the public. Each
seller of Registrable Securities further agrees, on its own behalf and on behalf
of all its underwriters, accountants, attorneys and agents, that it will, upon
learning that disclosure of such information is sought in a court of competent
jurisdiction or governmental agency, give notice to the Company and allow the
Company, at its expense, to undertake appropriate action to prevent disclosure
of the information deemed confidential;
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(xi) use its best efforts to comply with all
applicable laws related to such registration statement and offering and sale of
securities and all applicable rules and regulations of governmental authorities
in connection therewith (including, without limitation, the Securities Act and
the Exchange Act) and make generally available to its security holders as soon
as practicable (but in any event not later than fifteen (15) months after the
effectiveness of such registration statement) an earnings statement of the
Company and its subsidiaries complying with Section 11(a) of the Securities Act;
(xii) use reasonable best efforts to furnish to
each seller of Registrable Securities a signed counterpart of (x) an opinion of
counsel for the Company and (y) a comfort letter signed by the independent
public accountants who have certified the Company's financial statements
included or incorporated by reference in such registration statement, covering
such matters with respect to such registration statement and, in the case of the
accountants' comfort letter, with respect to events subsequent to the date of
such financial statements, as are customarily covered in opinions of issuer's
counsel and in accountants' comfort letters delivered to the underwriters in
underwritten Initial Public Offerings of securities for the account of, or on
behalf of, an issuer of common stock, such opinion and comfort letters to be
dated the date such opinions and comfort letters are customarily dated in such
transactions, and covering in the case of such legal opinion, such other legal
matters and, in the case of such comfort letter, such other financial matters,
as the holders of a majority of the Registrable Securities being sold may
reasonably request; and
(xiii) take all such other actions as the holders
of a majority of the Registrable Securities being sold or the underwriters, if
any, reasonably request in order to expedite or facilitate the disposition of
such Registrable Securities.
(b) Underwriting. Without limiting any of the foregoing,
in the event that any offering of Registrable Securities is to be made by or
through an underwriter, the Company shall enter into an underwriting agreement
with a managing underwriter or underwriters containing representations,
warranties, indemnities and agreements customarily included (but not
inconsistent with the agreements contained herein) by an issuer of common stock
in underwriting agreements with respect to offerings of common stock for the
account of, or on behalf of, such issuers. In connection with the sale of
Registrable Securities hereunder, any seller of such Registrable Securities may,
at its option, require that any and all representations and warranties by, and
indemnities and agreements of, the Company to or for the benefit of such
underwriter or underwriters (or which would be made to or for the benefit of
such an underwriter or underwriter if such sale of Registrable Securities were
pursuant to a customary underwritten offering) be made to and for the benefit of
such seller and that any or all of the conditions precedent to the obligations
of such underwriter or underwriters (or which would be so for the
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benefit of such underwriter or underwriters under a customary underwriting
agreement) be conditions precedent to the obligations of such seller in
connection with the disposition of its securities pursuant to the terms hereof
(it being agreed that in connection with any Demand Registration, without
limiting any rights or remedies of the Stockholders, in the event any such
condition precedent shall not be satisfied and, if not so satisfied, shall not
be waived by the holders of a majority of the Registrable Securities to be
included in such Demand Registration, such Demand Registration shall not be
counted as a permitted Demand hereunder). In connection with any offering of
Registrable Securities registered pursuant to this Agreement, the Company shall
(x) furnish to the underwriter, if any (or, if no underwriter, the sellers of
such Registrable Securities), unlegended certificates representing ownership of
the Registrable Securities being sold, in such denominations as requested and
(y) instruct any transfer agent and registrar of the Registrable Securities to
release any stop transfer order with respect thereto.
(c) Return of Prospectuses. Each seller of Registrable
Securities hereunder agrees that upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 5.05(a)(viii), such
seller shall forthwith discontinue such seller's disposition of Registrable
Securities pursuant to the applicable registration statement and prospectus
relating thereto until such seller's receipt of the copies of the supplemented
or amended prospectus contemplated by Section 5.05(a)(viii) and, if so directed
by the Company, deliver to the Company all copies, other than permanent file
copies, then in such seller's possession of the prospectus current at the time
of receipt of such notice relating to such Registrable Securities. In the event
the Company shall give such notice, the one hundred twenty (120)-day period
during which such registration statement must remain effective pursuant to this
Agreement shall be extended by the number of days during the period from the
date of giving of a notice regarding the happening of an event of the kind
described in Section 5.05(a)(viii) to the date when all such sellers shall
receive such a supplemented or amended prospectus and such prospectus shall have
been filed with the Commission.
Section 5.06 Registration Expenses.
All expenses incident to the Company's performance of, or
compliance with, its obligations under this Agreement, including, without
limitation, all registration and filing fees, all fees and expenses of
compliance with securities and "blue sky" laws (including, without limitation,
the fees and expenses of counsel for underwriters or placement or sales agents,
if any, in connection therewith), all printing and copying expenses, all "road
show" expenses, all messenger and delivery expenses, all fees and expenses of
underwriters and sales and placement agents, if any, in connection therewith
(excluding discounts and commissions), all fees and expenses of the Company's
independent certified public accountants and counsel (including, without
limitation, with respect to "comfort" letters and opinions) (collectively, the
"Registration
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Expenses") shall be borne by the Company; provided, however, that all
underwriting discounts and commissions allocable to each Stockholder selling
Registrable Securities shall be borne by such Stockholder. The Company shall be
responsible for the fees and expenses of one (1) legal counsel retained by all
of the Stockholders in the aggregate in connection with the sale of Registrable
Securities. Notwithstanding the foregoing, the Company shall not be responsible
for the fees and expenses of any additional counsel, or any of the accountants,
agents or experts retained by the Stockholders in connection with the sale of
Registrable Securities. The Company will pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties, the expense of any annual audit and the
expense of any liability insurance) (collectively, "Internal Expenses").
Section 5.07 Indemnification.
(a) By the Company. The Company agrees to indemnify, to
the fullest extent permitted by law, each holder of Registrable Securities being
sold, its officers, directors, members, employees and agents and each Person who
controls (within the meaning of the Securities Act) such holder or such an other
indemnified Person against all losses, claims, damages, liabilities and expenses
(collectively, the "Losses") caused by, resulting from or relating to any untrue
or alleged untrue statement of material fact contained in any registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or a fact necessary to make the statements therein
not misleading, except insofar as the same are caused by or contained in any
information furnished to the Company in writing by or on behalf of such holder
expressly for use therein or by such holder's failure to deliver a copy of the
registration statement or prospectus or any amendments or supplements thereto
after the Company has furnished such holder with a sufficient number of copies
of the same. In connection with an underwritten offering and without limiting
any of the Company's other obligations under this Agreement, the Company shall
indemnify such underwriters, their officers, directors, employees and agents and
each Person who controls (within the meaning of the Securities Act) such
underwriters or such an other indemnified Person to the same extent as provided
above with respect to the indemnification of the holders of Registrable
Securities being sold.
(b) By Stockholders. In connection with any registration
statement in which a holder of Registrable Securities is participating, each
such holder will furnish, or cause to be furnished, to the Company in writing
information regarding such holder's ownership of Registrable Securities and its
intended method of distribution thereof and, to the extent permitted by law,
shall indemnify the Company, its directors, officers, employees and agents and
each Person who controls (within the meaning of the Securities Act) the Company
or such an other indemnified Person against all Losses caused by, resulting from
or relating to any untrue or
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alleged untrue statement of material fact contained in the registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or omission is
caused by and contained in such information so furnished in writing by or on
behalf of such holder; provided, however, that each holder's obligation to
indemnify the Company hereunder shall be apportioned between each holder based
upon the net amount received by each holder from the sale of Registrable
Securities, as compared to the total net amount received by all of the holders
of Registrable Securities sold pursuant to such registration statement, with no
such holder being liable to the Company in excess of the net amount received by
such holder from the sale of Registrable Securities.
(c) Notice. Any Person entitled to indemnification
hereunder shall give prompt written notice to the indemnifying party of any
claim with respect to which its seeks indemnification; provided, however, the
failure to give such notice shall not release the indemnifying party from its
obligation, except to the extent that the indemnifying party has been materially
prejudiced by such failure to provide such notice.
(d) Defense of Actions. In any case in which any such
action is brought against any indemnified party, and it notifies an indemnifying
party of the commencement thereof, the indemnifying party will be entitled to
participate therein, and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof the indemnifying party will not (so long as it shall
continue to have the right to defend, contest, litigate and settle the matter in
question in accordance with this paragraph) be liable to such indemnified party
hereunder for any legal or other expense subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation, supervision and monitoring (unless such indemnified
party reasonably objects to such assumption on the grounds that there may be
defenses available to it which are different from or in addition to the defenses
available to such indemnifying party, in which event the indemnified party shall
be reimbursed by the indemnifying party for the expenses incurred in connection
with retaining separate legal counsel). An indemnifying party shall not be
liable for any settlement of an action or claim effected without its consent.
The indemnifying party shall lose its right to defend, contest, litigate and
settle a matter if it shall fail diligently to contest such matter (except to
the extent settled in accordance with the next following sentence). No matter
shall be settled by an indemnifying party without the consent of the indemnified
party (which consent shall not be unreasonably withheld).
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(e) Survival. The indemnification provided for under this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified Person and will survive the transfer of
the Registrable Securities and the termination of this Agreement.
(f) Contribution. If recovery is not available under the
foregoing indemnification provisions for any reason or reasons other than as
specified therein, any Person who would otherwise be entitled to indemnification
by the terms thereof shall nevertheless be entitled to contribution with respect
to any Losses with respect to which such Person would be entitled to such
indemnification but for such reason or reasons. In determining the amount of
contribution to which the respective Persons are entitled, there shall be
considered the Persons' relative knowledge and access to information concerning
the matter with respect to which the claim was asserted, the opportunity to
correct and prevent any statement or omission, and other equitable
considerations appropriate under the circumstances. It is hereby agreed that it
would not necessarily be equitable if the amount of such contribution were
determined by pro rata or per capita allocation. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not found guilty of
such fraudulent misrepresentation. Notwithstanding the foregoing, no Stock
holder shall be required to make a contribution in excess of the net amount
received by such holder from the sale of Registrable Securities.
ARTICLE VI
Co-Investment Rights
Section 6.01 Preemptive Rights.
If, prior to the consumation of the Initial Public Offering, the
Company proposes to issue and sell shares of Company capital stock to any
Person, including, without limitation, any other Stockholder, each Stockholder
shall have the right to purchase from the Company a number of shares of Company
capital stock sufficient to maintain following such transaction the same
proportionate interest in the shares of Company Common Stock or Company
Preferred Stock, as the case may be, as immediately prior to such transaction.
Such purchase by each Stockholder shall be on the same terms and conditions as
such purchase by such Person. Each such issuance and sale to any Person shall be
subject to the rights set forth in this Article VI.
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Section 6.02 Purchase Rights.
Each Stockholder hereby agrees that, prior to the Initial Public
Offering, the Company may undertake one or more issuances and sales to New World
and any other Stock holders of Company Common Stock at the price of $10 per
share, subject to such Stockholder's rights under this Article VI. Each
Stockholder further hereby acknowledges and agrees that, subject to Section 7.13
hereof, the payment of $10 per share by New World and such other Stockholders
shall be conclusive and binding as evidence of the fair market value at such
time of the Company Common Stock.
Section 6.03 Notice.
If, prior to the Initial Public Offering, the Company proposes to
issue shares of Company capital stock to any Person, including, without
limitation, any other Stockholder, it shall give each Stockholder written notice
of such issuance, describing the price and terms upon which the Company intends
to issue the same, and the amount of Company capital stock eligible to be
purchased by each such Stockholder pursuant to Section 6.01 above. Any revision
of any material term of such intended issuance shall require re-notification to
each Stockholder and a restarting of the twenty (20) business day period
provided in Section 6.04 below.
Section 6.04 Exercise.
Upon receipt by any Stockholder of the written notice of the
Company pursuant to Section 6.03 above, such Stockholder shall have twenty (20)
business days during which to exercise the right pursuant to Section 6.01 above
to purchase its proportionate share of Company capital stock for the price and
upon the terms specified in such notice. If any Stockholder fails to notify the
Company of its exercise of such rights within such twenty (20) business day
period, such Stockholder shall have no further rights with regard to such
purchase by such Person at the price and upon the terms specified in the notice
to the Stockholder, subject to Section 6.05 below.
Section 6.05 Limitations.
If the Company has not sold the shares of Company capital stock
identified in the notice given pursuant to Section 6.03 within ninety (90) days
following the expiration of the twenty (20) business day period referred to in
Section 6.04 above, the Company shall not thereafter issue or sell any such
shares to such Person without also offering the same to each Stockholder in the
manner provided above.
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Section 6.06 Scope.
Each Share issued and sold to any Stockholder pursuant to the
rights set forth in this Article VI shall be subject to this Agreement; and each
certificate representing such Shares shall bear substantially the legend set
forth in Section 7.01 hereof.
ARTICLE VII
Miscellaneous
Section 7.01 Legend.
Each Stockholder agrees that substantially the following legend
shall be placed on the certificates representing any Shares owned by it:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED,
TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE
DISPOSED OF UNLESS SUCH OFFER, TRANSFER, SALE, ASSIGNMENT, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION COMPLIES WITH THE PROVISIONS OF THE
STOCKHOLDERS AGREEMENT DATED AS OF JANUARY 28, 1999, A COPY OF WHICH IS
ON FILE WITH THE SECRETARY OF NEW WORLD PASTA COMPANY AND IS AVAILABLE
WITHOUT CHARGE UPON WRITTEN REQUEST THEREFOR. THE HOLDER OF THIS
CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY
ALL OF THE PROVISIONS OF THE AFORESAID AGREEMENT. THE SECURITIES
REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS
OF ANY STATE. IN ADDITION TO THE FOREGOING RESTRICTION, THE SECURITIES
REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED, TRANSFERRED, SOLD,
ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF ("TRANSFER")
EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
ACT, (B) PURSUANT TO RULE 144 UNDER THE ACT OR (C) UPON RECEIPT BY THE
ISSUER OF SUCH SECURITIES OF AN OPINION OF COUNSEL, WHICH OPINION AND
COUNSEL SHALL BE REASON ABLY SATISFACTORY TO SUCH ISSUER, THAT SUCH
TRANSFER IS EXEMPT FROM REGISTRATION UNDER THE ACT.
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30
From and after the date of this Agreement, any reference in any legend on any
certificate representing any Shares to the Stockholders Agreement shall be
deemed for all purposes to refer to this Agreement. The Company agrees to remove
the legend on the Shares upon the resale of such Shares in accordance with the
terms of this Agreement (other than pursuant to Section
4.01(a)(i)).
Section 7.02 Specific Performance.
Each Stockholder acknowledges and agrees that in the event of any
breach of this Agreement, the non-breaching parties would be irreparably harmed
and could not be made whole by monetary damages. Each Stockholder hereby agrees
that in addition to any other remedy to which such non-breaching parties may be
entitled at law or in equity, each such party shall be entitled to compel
specific performance of this Agreement in any action instituted in any court of
the United States or any state thereof having subject matter jurisdiction for
such action.
Section 7.03 Headings.
The headings in this Agreement are for convenience of reference
only and shall not control or affect the meaning or construction of any
provision hereof.
Section 7.04 Entire Agreement.
This Agreement constitutes the entire agreement and understanding
of the parties hereto in respect of the subject matter contained herein, and
there are no restrictions, promises, representations, warranties, covenants,
conditions or undertakings with respect to the subject matter hereof, other than
those expressly set forth or referred to herein. This Agreement supersedes all
prior agreements and understandings between the parties hereto with respect to
the subject matter hereof, including, without limitation, the Recapitalization
Agreement.
Section 7.05 Proxy.
For so long as this Agreement is in effect, if any Stockholder
that has agreed to vote such Stockholder's Shares pursuant to and in accordance
with this Agreement fails or refuses to do so, then, without further action by
such Stockholder, each other such Stockholder shall have an irrevocable proxy
coupled with an interest to vote such Stockholder's Shares in accordance with
this Agreement, and each such Stockholder hereby grants to each other such
Stockholder such irrevocable proxy coupled with an interest.
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Section 7.06 Notices.
All notices and other communications hereunder shall be in
writing and shall be delivered personally or by next-day courier or telecopied
with confirmation of receipt, to the parties at the addresses specified below
(or at such other address for a party as shall be specified by like notice;
provided that notices of change of address shall be effective only upon receipt
thereof). Any such notice shall be effective upon receipt, if personally
delivered or telecopied, or one day after delivery to a courier for next-day
delivery.
If to the Company:
New World Pasta Company
000 Xxxxxxx X. Xxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: General Counsel
with copies to:
Xxxxxx, Xxxxxxxxxx & Xxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile (000) 000-0000
Attention: Xxxxx X. Xxxx
and
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxx Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
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32
If to New World:
x/x Xxxxxx, Xxxxxxxxxx & Xxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile (000) 000-0000
Attention: Xxxxx X. Xxxx
with copies to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxx Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
If to Xxxxxx Pasta or any member thereof:
c/o Miller Milling Company
000 Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Facsimile (000) 000-0000
Attention: Xxxx Xxxxxx
with copies to:
Maslon, Edelman, Xxxxxx & Brand, LLP
3300 Norwest Center
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxx
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If to Hershey:
In care of Hershey Foods Corporation
000 Xxxxxxx X. Xxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxx, Esq.
with copies to:
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxx, P.C.
Section 7.07 Applicable Law.
The substantive laws of the State of Delaware shall govern the
interpretation, validity and performance of the terms of this Agreement,
regardless of the law that might be applied under applicable principles of
conflicts of law. THE PARTIES HERETO WAIVE THEIR RIGHT TO A JURY TRIAL WITH
RESPECT TO DISPUTES HEREUNDER; AND ALL SUCH DISPUTES SHALL BE SETTLED BY BINDING
ARBITRATION PURSUANT TO THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION IN NEW
YORK CITY, NEW YORK (INCLUDING REASONABLE DISCOVERY AS DETERMINED BY THE
ARBITRATOR) AND THE ORDER OF SUCH ARBITRATORS SHALL BE CONCLUSIVE, FINAL AND
BINDING ON ALL PARTIES HERETO AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT
HAVING JURISDICTION OVER THE PARTIES.
Section 7.08 Severability.
The invalidity, illegality or unenforceability of one or more of
the clauses or provisions of this Agreement in any jurisdiction shall not affect
the validity, legality or enforceability of the remainder of this Agreement in
such jurisdiction or the validity, legality or enforceability of this Agreement,
including any such clause or provision, in any other jurisdiction, it being
intended that all rights and obligations of the parties hereunder shall be
enforceable to the fullest extent permitted by law.
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Section 7.09 Successors; Assigns; Third-Party Beneficiaries.
The provisions of this Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective heirs, successors
and permitted assigns. Neither this Agreement nor the rights or obligations of
any Stockholder hereunder may be assigned, except in connection with the
Transfer by a Stockholder of Shares to a Permitted Transferee in accordance with
Section 4.01. Any such attempted assignment in contravention of this Agreement
shall be void and of no effect. This Agreement is for the sole benefit of the
parties hereto and their respective heirs, successors and permitted assigns and
no provision hereof, whether express or implied, is intended, or shall be
construed, to give any other Person any rights or remedies, whether legal or
equitable, hereunder.
Section 7.10 Amendments.
This Agreement may not be amended, modified or supplemented other
than in a writing signed by the Company and the holders of at least a majority
of the Shares then subject to this Agreement; provided that no such amendment,
modification or supplement hereto that; adversely affects any Stockholder shall
be enforceable against or effective with respect to such Stockholder without
such Person's prior written consent.
Section 7.11 Waiver.
Any waiver (express or implied) of any default or breach of this
Agreement shall not constitute a waiver of any other or subsequent default or
breach.
Section 7.12 Counterparts.
This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original but all of which together shall constitute
one and the same Agreement.
Section 7.13 Recapitalization.
In the event that any capital stock or other securities are
issued in respect of, in exchange for, or in substitution of, any shares of
Company Common Stock or Company Preferred Stock by reason of any reorganization,
recapitalization, reclassification, merger, consolidation, spin-off, partial or
complete liquidation, stock dividend, split-up, sale of assets, distribution to
stockholders or combination of the shares of Company Common Stock or Company
Preferred Stock or any other change in the Company's capital structure,
appropriate adjustments shall be made to the terms hereof if necessary to fairly
and equitably preserve the original rights and obligations of the parties hereto
under this Agreement.
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Section 7.14 Term.
The term of this Agreement (the "Term") shall begin as of the
date first written above and terminate on the tenth anniversary of such date.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, this Stockholders Agreement has been
duly executed and delivered by or on behalf of each of the undersigned as of the
date first above written.
NEW WORLD PASTA COMPANY
By: /s/ C. Xxxxxx Xxxxxxx
-----------------------------------------------
Name: C. Xxxxxx Xxxxxxx
Title: Chairman, Chief Executive Officer
and Director
NEW WORLD PASTA, LLC
By: /s/ Xxxxx X. Xxxx
-----------------------------------------------
Name: Xxxxx X. Xxxx
Title: President
XXXXXX PASTA, LLC
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
HERSHEY CHOCOLATE & CONFECTIONERY
CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice president
37
FOR PURPOSES OF SECTIONS 2.02(c) AND 4.01(c) ONLY
/s/ C. Xxxxxx Xxxxxxx
___________________________________________________
C. Xxxxxx Xxxxxxx
FOR PURPOSES OF SECTIONS 2.02(c) AND 4.01(c) ONLY
/s/ Xxxx X. Xxxxxx
___________________________________________________
Xxxx X. Xxxxxx
FOR PURPOSES OF SECTIONS 2.02(c) AND 4.01(c) ONLY
/s/ Xxxxxxx X. Xxxx
___________________________________________________
Xxxxxxx X. Xxxx
FOR PURPOSES OF SECTIONS 2.02(c) AND 4.01(c) ONLY
Xxxxxx Milling Company
By: /s Xxxx X. Xxxxxx
___________________________________________________
Name: Xxxx X. Xxxxxx
Title: Chief Executive Officer
38
EXHIBIT A
Xxxxxx Pasta LLC
Members and Interests
Member's Name and Address Units
1. Xxxxxx Milling Company 7,400*
#880 Grain Exchange Building
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
2. C. Xxxxxx Xxxxxxx 600
0000 Xxxxx Xxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
3. Xxxxxxx X. Xxxx 70
0000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
4. Xxxxxx Xxxx 70
0000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
5. Xxxxxxx X. Xxxx 1995 70
Irrevocable Trust F/B/X
Xxxxxxx Xxxxxx Xxxx
00 Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
6. Xxxxxxx X. Xxxx 1995 70
Irrevocable Trust F/B/O
Xxxx Xxxxx Snow
00 Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
--------
* Of these Units, 2,100 are owned indirectly by Xxxxxxx X. Xxxx and 2,160
are owned indirectly by Xxxx X. Xxxxxx
A-1
39
7. Xxxxxxx X. Xxxx 1995 70
Irrevocable Trust F/B/O
Britni Xxxx Xxxx
00 Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
8. Xxxxxx Xxxxxxx 1,000
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
9. Xxxx Xxxxxx 1,000
00 Xxxxx Xxxxx
Xxxxx, XX 00000
10. Xxxxx X. Xxxxxxx 1987 250
Revocable Trust
000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
11. Winwood Holdings Ltd. 334
1880 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX, Xxxxxx
X0X 0X0
12. Hermitage Holdings Ltd. 166
1880 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX, Xxxxxx
X0X 0X0
13. Xxxxxxxx'x Bay Partners 450
2800 Piper Tower
000 Xxxxx 0xx
Xxxxxxxxxxx, XX 00000
14. Xxxxxxxxx Xxxxxx Xxxxxxxx F/B/O 50
Xxxxx X. Xxxxxxxx
Xxx Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
15. LIT, LLC 100
000 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
X-0
00
00. Bluestem Capital Co. 2,000
(Carrier Pasta, LLC)
000 X. Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxx Xxxxx, XX 00000
17. EFO Co-Investment Partners 400
0000 Xxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
18. World Pasta Partners, LP 3,600
0000 Xxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
19. Xxxxx Xxxx and Xxxxx Xxxx 100
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
20. Xxxx Xxxxxx 100
0000 Xxxx Xxxxxxx
Xxxxxxxxxxx, XX 00000
21. Xxxxxxx XxXxxx 100
0000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
22. Xxxx Xxxxxxx 20
000 Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxxxxxx, XX 00000
23. Xxxxxx Xxxxxxx 50
000 Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxxxxxx, XX 00000
24. Xxxxx Xxxx 100
000 Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxxxxxx, XX 00000
A-3
41
EXHIBIT B
Column A Column B
Shares of Shares of
Name of Company Common Company Preferred
Stockholder Stock Owned (#) Stock Owned (#)
----------- --------------- ---------------
New World 4,167,869 100,636.31
Xxxxxx Pasta 532,131 12,848.69
Hershey 300,000
B-1
