AMENDED AND RESTATED
STOCKHOLDER AGREEMENT
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AMENDED AND RESTATED STOCKHOLDER AGREEMENT (this "Agreement") dated as of
November 7, 2000 among AMCON Distributing Company, a Delaware corporation
("AMCON"), Xxxxxx Merger Sub, Inc., a Delaware corporation and a wholly-owned
subsidiary of AMCON ("Merger Sub"), and the stockholders of Hawaiian Natural
Water Company, Inc., a Hawaii corporation (the "Company" or "HNWC"), named on
Schedule I hereto (individually, a "Stockholder" and collectively, the
"Stockholders").
WHEREAS, AMCON and Merger Sub propose to enter into an Agreement and Plan
of Merger dated as of the date hereof (as amended from time to time, the
"Merger Agreement"; capitalized terms used but not defined herein shall have
the meanings set forth in the Merger Agreement) with the Company which
provides, among other things, that the Company will merge with and into Merger
Sub (the "Merger"); and
WHEREAS, as of the date hereof, each Stockholder owns of record or
beneficially the respective number of shares of the Company Common Stock set
opposite such Stockholder's name on Schedule I hereto; and
WHEREAS, as an essential condition to the willingness of AMCON and
Merger Sub to enter into the Merger Agreement, AMCON and Merger Sub have
requested that each Stockholder agree, and in order to induce AMCON and Merger
Sub to enter into the Merger Agreement, each Stockholder has agreed, to enter
into this Agreement with respect to (i) all the shares of the Company Common
Stock owned beneficially and of record by such Stockholder as of the date
hereof or of which such Stockholder may hereafter acquire record or beneficial
ownership (the "Shares") and (ii) any other securities owned of record or
beneficially by such Stockholder as of the date hereof or of which such
Stockholder may hereafter acquire ownership of record or beneficially which
may be voted by or at the direction or on behalf of the Stockholder at any
meeting of the Company stockholders or with respect to which action taken
without a meeting may be authorized by or at the direction or on behalf of
such Stockholder by written consent (the "Other Securities");
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein and intending to be legally bound
hereby, the parties hereto agree as follows:
ARTICLE I
VOTING AGREEMENT
Section 1.1 Voting Agreement. Each Stockholder hereby agrees that,
with respect to the Company Stockholders Meeting and any other meeting of the
Company stockholders or any action to be taken by written consent the
Stockholder shall:
(a) appear in person or by proxy (or use its reasonable best
efforts to cause the holder of record on any applicable record date to
appear in person or by proxy) for the purpose of obtaining a quorum at
the Company Stockholders Meeting and at any adjournment or postponement
thereof;
(b) vote (or cause to be voted) the Shares and the Other Securities
(or, as applicable, shall execute or cause to be executed written
consents in respect of the Shares and the Other Securities) in favor of
the approval and adoption of the Merger Agreement, the Merger and, any
other transactions or matters contemplated by the Merger Agreement, and
any actions required in furtherance thereof and hereof; and
(c) not encourage any holder of securities of the Company to vote
against the approval and adoption of the Merger Agreement, the Merger or
any other transactions or matters contemplated by the Merger Agreement,
and not take any action, or permit any action to be taken, that would
reasonably be expected to impede, interfere, or be inconsistent with,
delay, postpone, discourage, disparage or otherwise adversely affect, the
Merger Agreement, the Merger, this Agreement and any other transactions
or matters contemplated by the Merger Agreement, or a Stockholder's
obligations hereunder, including, but not limited to, the obligations of
each Stockholder to vote for the approval and adoption of the Merger
Agreement, the Merger and any other transactions or matters contemplated
by the Merger Agreement, and to use its reasonable best efforts to
consummate and make effective the transactions contemplated by this
Agreement, provided that nothing in this Section 1.1 shall limit any
individual Stockholder who is a director of the Company from exercising
or performing any of such Stockholder's rights or duties solely in such
Stockholder's capacity as a director of the Company.
Section 1.2 Irrevocable Proxy. In order to ensure that the voting
agreement set forth in Section 1.1 and the other obligations of each
Stockholder hereunder will be carried out, each Stockholder hereby grants an
irrevocable proxy, coupled with an interest, in the form attached hereto as
Exhibit A (the "Irrevocable Proxy") to, and hereby constitutes and appoints
AMCON and each of its officers as such Stockholder's sole and exclusive
attorney and proxy pursuant to the provisions of Section 414-33(c) of the
Hawaii Business Corporations Act, with full power of substitution, (a) to vote
and otherwise act (by written consent or otherwise) with respect to the Shares
and the Other Securities which such Stockholder is entitled to vote at the
Company Stockholders Meeting and any other meeting of the Company
Stockholders, or pursuant to any written consent in lieu of a meeting of the
Company Stockholders, and at any adjournment or postponement thereof on the
matters and in the manner specified in Section 1.1 and (b) to execute and
deliver any and all further consents, instruments or other agreements or
documents and take any and all such reasonable actions in connection with or
in furtherance of the obligations of such Stockholder set forth in this
Agreement and in furtherance of each of the transactions. THIS PROXY AND
POWER OF ATTORNEY IS IRREVOCABLE AND COUPLED WITH AN INTEREST. Such
Stockholder hereby revokes all other proxies and powers of attorney with
respect to the Shares and the Other Securities that such Stockholder may have
heretofore appointed or granted that would prevent such Stockholder from
performing its obligations hereunder, and no subsequent proxy or power of
attorney shall be given or written consent executed (and if given or executed,
shall not be effective) by such Stockholder with respect thereto. All
authority herein conferred or agreed to be conferred shall survive the death
or incapacity of any Stockholder and any obligation of such Stockholder under
this Agreement shall be binding upon the heirs, personal representatives,
successors and permitted assigns of such Stockholder.
Section 1.3 Evaluation of Investment. Each Stockholder, by reason of
such Stockholder's knowledge and experience in financial and business matters,
is capable of evaluating the merits and risks of the investment in AMCON
Common Stock to be received pursuant to the Merger, contemplated by the Merger
Agreement.
Section 1.4 Documents Delivered. The Stockholder acknowledges receipt
of copies of the following documents:
(a) the Merger Agreement and all schedules and exhibits thereto;
(b) AMCON's Annual report on Form 10-K for the fiscal year ended
September 30, 1999;
(c) AMCON's Proxy Statement dated January 24, 2000;
(d) each report filed with the Securities and Exchange Commission
by AMCON on Forms 8-K and 10-Q since September 30, 1999; and
(e) any other information reasonably requested by any Stockholder
concerning an evaluation of an investment in AMCON Common Stock.
Each Stockholder also acknowledges that it possesses the information relating
to the Company which such Stockholder deems relevant to its investment in
AMCON Common Stock should the Merger be consummated.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of Each Stockholder. Except
as set forth on the disclosure letter attached hereto, each Stockholder
represents and warrants to AMCON and Merger Sub as follows:
(a) Each Stockholder (if it is a corporation, general or limited
partnership, limited liability company or other legal entity) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization. Such Stockholder has the
requisite power and authority (and if a natural person, the legal capacity) to
execute and deliver this Agreement and to perform its obligations hereunder.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by such Stockholder
and no other proceedings on the part of such Stockholder are necessary to
authorize this Agreement and the consummation of the transactions contemplated
hereby. This Agreement has been duly executed and delivered by such
Stockholder and, assuming that this Agreement constitutes a valid and binding
agreement of AMCON, is a legal, valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and similar laws, now or hereafter in effect,
relating to or affecting the rights and remedies of creditors generally, and
to general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or a law) and to general principles
governing the duties of fiduciaries.
(b) The execution and delivery of this Agreement by such Stockholder
does not, and the performance of this Agreement by such Stockholder will not,
conflict with, result in any breach of or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, or
give to others any rights of termination, amendment, acceleration or
cancellation of, or require payment under, or result in the creation of any
Encumbrances (as defined in Section 5.1 below) on any of the assets of such
Stockholder pursuant to any contract or other instrument to which such
Stockholder is a party or by which such Stockholder or any of such
Stockholder's assets are bound, except for any thereof that would not
reasonably be expected to materially impair the ability of such Stockholder to
perform such Stockholder's obligations hereunder or to consummate the
transactions contemplated hereby.
(c) There is no suit, action, investigation or proceeding pending or, to
the knowledge of such Stockholder, threatened against such Stockholder at law
or in equity before or by any Governmental Entity that would reasonably be
expected to materially impair the ability of such Stockholder to perform such
Stockholder's obligations hereunder or to consummate the transactions
contemplated hereby.
(d) Such Stockholder owns beneficially and of record the shares of
Company Common Stock set forth opposite such Stockholder's name on Schedule I
hereto (the "Existing Shares"). The Existing Shares constitute all the shares
of the Company Common Stock owned of record or beneficially by such
Stockholder. Such Stockholder has sole voting power, sole power of
disposition and all other stockholder rights with respect to all the Existing
Shares, with no restrictions, other than pursuant to applicable securities
laws, on such Stockholder's rights of disposition pertaining thereto. Such
Stockholder owns options or warrants to purchase or other securities
convertible or exchangeable into or exercisable for the number of shares of
such Common Stock set forth opposite such Stockholder's name on Schedule I
hereto (collectively, the "Derivative Securities"). None of the Existing
Shares or Derivative Securities is subject to (i) any right of first refusal
or first offer, (ii) right to purchase, acquire or vote, or (iii) proxy or
power of attorney, except in the case of clause (ii) or (iii) any rights
created by this Agreement. Such Stockholder has good and valid title to all
the Existing Shares, free and clear of all Encumbrances (other than any
Encumbrance created by this Agreement).
ARTICLE III
COVENANTS OF THE STOCKHOLDER
Section 3.1 No Solicitation. Each Stockholder and its Representatives
shall immediately cease and cause to be terminated all existing discussions or
negotiations to which the Stockholder or its officers, directors, employees,
agents, accountants, counsel, advisors or consultants (collectively,
"Representatives") are a part relating to an Acquisition Proposal for the
Company or any transaction referred to in Section 3.1 or 3.2 with any parties
conducted heretofore. From the date hereof until the Effective Time or, if
earlier, the termination of the Merger Agreement pursuant to Article X
thereof, each Stockholder shall not, whether directly or indirectly through
Representatives or other intermediaries, and will instruct such Stockholder's
Representatives not to, whether directly or indirectly through Representatives
or other intermediaries, initiate, solicit or encourage (including by way of
furnishing information or assistance), or take any other action to facilitate,
any inquiries or the making of any proposal regarding a potential Acquisition
Proposal for HNWC or any transaction referred to in Section 3.1 or 3.2, or
enter into or maintain discussions or negotiate with any person regarding, in
furtherance of or relating to such inquiries or the making of a proposal
regarding or consummation of an Acquisition Proposal for HNWC or any
transaction referred to in Section 3.1 or 3.2, or agree to or endorse any
Acquisition Proposal for HNWC or any transaction referred to in Section 3.1 or
3.2, or disclose any non-public information relating to the Company to any
person that has made or may reasonably be expected to make a proposal
regarding an Acquisition Proposal for HNWC or any transaction referred to in
Section 3.1 or 3.2 or that has advised the Company that it is or may be
interested in making a proposal regarding an Acquisition Proposal for HNWC or
any transaction referred to in Section 3.1 or 3.2, or authorize or permit any
of such Stockholder's Representatives to take any such action, and each
Stockholder shall use such Stockholder's reasonable best efforts to cause such
Stockholder's Representatives not to take any such action, and each
Stockholder shall promptly notify AMCON if any such inquiries or proposals are
made regarding a potential Acquisition Proposal for HNWC or any transaction
referred to in Section 3.1 or 3.2, and each Stockholder shall promptly inform
AMCON as to the terms and details of any such inquiry or proposal (including
the identity of the true party in interest making such inquiry or proposal)
and, if in writing, promptly deliver or cause to be delivered to AMCON a copy
of such inquiry or proposal, and each Stockholder shall keep AMCON informed,
on a current basis, of the status, terms and details of any such inquiries or
such proposals. Anything in this Section 3.1 to the contrary notwithstanding,
nothing in this Section 3.1 shall limit any individual Stockholder who is also
a director of the Company, from exercising or performing any of such
Stockholder's rights or duties solely in such Stockholder's capacity as a
director of the Company.
Section 3.2 No Disposition of Shares Prior to Termination.
(a) Each Stockholder hereby agrees that, until the Merger Agreement
is terminated in accordance with Article IX thereof, and except pursuant to
the Merger and any transactions contemplated by the Merger Agreement, the
Stockholder shall not (i) sell, transfer, tender, assign, contribute to the
capital of any Person, grant a participation in or otherwise dispose of, or
create, become a party to, be bound by or permit to exist, any Encumbrance
(other than any Encumbrance created by this Agreement) of any nature with
respect to, any of the Shares or Other Securities or any interest therein (or
agree or consent to, or offer to do, any of the foregoing), (ii) take any
action that would reasonably be expected to make any representation or
warranty of such Stockholder herein materially untrue or materially incorrect
or have the effect of preventing or disabling such Stockholder from performing
such Stockholder's obligations hereunder, or (iii) directly or indirectly,
initiate, solicit or encourage any Person to take actions that would
reasonably be expected to lead to the occurrence of any of the foregoing.
(b) Each Stockholder agrees that, so long as this Section 3.2 shall
remain in effect, such Stockholder shall not request the Company to register
the transfer (book-entry or otherwise) of any certificate or uncertificated
interest evidencing any Shares or Other Securities, unless such transfer is
made pursuant to the Merger or the transactions contemplated by the Merger
Agreement. In the event of a stock dividend or distribution, or any change in
the Company Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, for all
purposes of this Agreement, the term "Shares" or "Other Securities," as the
case may be, shall be deemed to refer to and include the Shares or Other
Securities, as the case may be, as well as all such stock dividends and
distributions and any shares into which or for which any or all of such Shares
or Other Securities may be changed or exchanged.
(c) Each Stockholder hereby agrees and consents to the entry of
stop transfer instructions by the Company against transfer of any Shares or
Other Securities except pursuant to the transactions or the proviso set forth
in Section 3.2(a) above.
Section 3.3 Further Assurances. Each Stockholder agrees to use such
Stockholder's reasonable best efforts to take, or cause to be taken, all
appropriate action, and to do, or cause to be done, all things necessary,
proper or advisable under applicable laws and regulations to consummate and
make effective the transactions contemplated by this Agreement, including, but
not limited to, the Merger or the transactions contemplated by the Merger
Agreement. If any further action is necessary or desirable to carry out the
purposes of this Agreement, such Stockholder shall use such Stockholder's
reasonable best efforts to take all such action as promptly as practicable.
Section 3.4 Legend. Each Stockholder will request the Company to have
the certificates evidencing those shares which are owned of record or
beneficially by such Stockholder to bear substantially the following legend
and to request the Company to instruct its transfer agent to stop the transfer
of any certificates bearing such legend that is not made in accordance with
this Agreement:
THE TRANSFER OF AND VOTING OF THE SHARES REPRESENTED BY THIS CERTIFICATE
IS SUBJECT TO THE PRIOR RIGHTS AND LIMITATIONS IMPOSED BY THE AMENDED AND
RESTATED STOCKHOLDER AGREEMENT DATED AS OF NOVEMBER 7, 2000 AMONG AMCON
DISTRIBUTING COMPANY, A DELAWARE CORPORATION, XXXXXX MERGER SUB, INC., A
DELAWARE CORPORATION, AND CERTAIN STOCKHOLDERS WHO ARE SIGNATORIES
THERETO. A COPY OF SUCH AGREEMENT WILL BE FURNISHED BY THE COMPANY'S
SECRETARY UPON WRITTEN REQUEST AND WITHOUT CHARGE.
ARTICLE IV
TERMINATION
Section 4.1 Termination. This Agreement shall terminate upon any
termination of the Merger Agreement in accordance with Article IX thereof.
Section 4.2 Effect of Termination. In the event that this Agreement
shall terminate pursuant to this Article IV, this Agreement shall thereafter
be void and the parties hereto shall have no further rights or obligations
with respect thereto, except as a result of any prior breach thereof.
ARTICLE V
DEFINITIONS
Section 5.1 Definitions. For purposes of this Agreement:
(a) "Beneficially own" or "beneficial ownership" with respect to
any securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934,
as amended), including pursuant to any agreement, arrangement or
understanding, whether or not in writing. Securities beneficially owned by
one Person shall include securities beneficially owned by all other Persons
with whom such Person would constitute a "group" within the meaning of Section
13(d)(3) of the Exchange Act.
(b) "Person" shall mean an individual, corporation, partnership,
joint venture, association, trust, unincorporated organization or other
entity.
(c) "Encumbrance" means any pledge, security interest, lien, claim,
encumbrance, mortgage, charge, hypothecation, option, right of first refusal
or offer, community property right, other marital right, preemptive right,
voting agreement, voting trust, proxy, power of attorney, escrow, option,
forfeiture, penalty, action at law or in equity, security agreement,
shareholder agreement or other agreement, arrangement, contract, commitment,
understanding or obligation, or any other restriction, qualification or
limitation on the use, transfer, right to vote, right to dissent, and seek
appraisal, receipt of income or other exercise of any attribute of ownership,
except for those which do not or could not reasonably be expected to,
individually or in the aggregate, impair the ability of such Stockholder to
perform such Stockholder's obligations hereunder or to consummate the
transactions contemplated hereby.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of
law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of this Agreement is not affected in any manner materially
adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the terms of this Agreement remain as
originally contemplated to the fullest extent possible.
Section 6.2 Entire Agreement. This Agreement constitutes the entire
agreement between Parent and each Stockholder with respect to the subject
matter hereof and supersedes all prior agreements and understandings, both
written and oral, between AMCON and such Stockholder with respect to the
subject matter hereof.
Section 6.3 Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
and delivered shall be deemed to be an original but all of which taken
together shall constitute one and the same instrument.
Section 6.4 Assignment. Neither this Agreement nor any rights or
interests hereunder shall be assigned by any Stockholder (whether by operation
of law or otherwise) without the prior written consent of AMCON. AMCON may
assign, in its sole discretion, its rights hereunder to any direct or indirect
wholly owned subsidiary or affiliate of AMCON, but no such assignment shall
relieve AMCON of its obligations hereunder if such assignee does not perform
such obligations.
Section 6.5 Amendments. This Agreement may not be amended,
supplemented, waived or otherwise modified or terminated, except upon the
execution and delivery of a written agreement executed by the parties hereto.
Section 6.6 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, facsimile
transmission, mail (registered or certified mail, postage prepaid, return
receipt requested), or courier service providing proof of delivery. All
communications hereunder shall be delivered to the respective parties at the
following addresses:
If to Stockholder, in accordance with the information set forth on
Schedule I hereto.
If to AMCON:
AMCON Distributing Company
00000 X Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: President
Telephone: (000) 000-0000
Fax:
copies to:
Xxxxxxx, Mag & Fizzell, P.C.
0000 Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Esq.
Telephone (000) 000-0000
Fax: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished the others in writing in the manner set forth above.
Section 6.7 No Third Party Beneficiaries. This Agreement is not
intended to be for the benefit of, and shall not be enforceable by, any person
or entity not a party hereto.
Section 6.8 Specific Performance. Each of the parties hereto
acknowledges that a breach by it of any agreement contained in this Agreement
may cause the other party to sustain damage for which it may not have an
adequate remedy at law for money damages, and therefore each of the parties
hereto agrees that in the event of any such breach the aggrieved party may be
entitled to the remedy of specific performance of such agreement and
injunctive and other equitable relief in addition to any other remedy to which
it may be entitled, at law or in equity.
Section 6.9 Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law
or in equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
Section 6.10 No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon strict compliance by any
other party hereto with its obligations hereunder, and any custom or practice
of the parties at variance with the terms hereof, shall not constitute a
waiver by such party of its right to exercise any such or other right, power
or remedy or to demand such compliance.
Section 6.11 Governing Law.
(a) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without giving effect to
the principles of conflicts of law thereof.
(b) Each party hereby irrevocably submits to the exclusive
jurisdiction of the Court of Chancery in the State of Delaware in any action,
suit or proceeding arising in connection with this Agreement, and agrees that
any such action, suit or proceeding shall be brought only in such court (and
waives any objection based on forum non conveniens or any other objection to
venue therein); provided, however, that such consent to jurisdiction is solely
for the purpose referred to in this subsection (b) and shall not be deemed to
be a general submission to the jurisdiction of such court or in the State of
Delaware other than for such purposes.
Section 6.12 Waiver of Jury Trial. EACH OF AMCON, MERGER SUB AND EACH
STOCKHOLDER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF
PARENT OR SUCH STOCKHOLDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND
ENFORCEMENT THEREOF.
Section 6.13 Descriptive Headings. The descriptive headings used herein
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
AMCON DISTRIBUTING COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Chairman of the Board
HAWAIIAN NATURAL WATER
COMPANY, INC.
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: President
STOCKHOLDERS:
HSC, Inc.
By: /s/ Xxxxxxx Xxxxxxx
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Title: Treasurer
H.B.D.C. Inc.
By: /s/ Xxxxxx Xxxxxx
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Title: President
By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx, individually
By: /s/ Xxxxxx Xxxxxx
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By: /s/ Xxxxxxx Xxxxxxxx
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By: /s/ Keijiro Sorimachi
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SCHEDULE I
Shares Owned and Derivative
Name of Certificate Securities Owned Address for
Stockholder Number(s) Notices
