UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 13D
INFORMATION TO BE INCLUDED IN STATEMENTS FILED
PURSUANT TO RULE 13d-1(a) AND AMENDMENTS
THERETO FILED PURSUANT TO RULE 13d-2(a)
ODWALLA, INC.
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(Name of Issuer)
Common Stock
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(Title of Class of Securities)
575111107
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(CUSIP Number)
Wasserstein Perella Group, Inc.
31 West 52nd Street, 26th Floor
New York, New York 10019-6163
Attention: General Counsel
Telephone: (212) 969-2700
--------------------------
(Name, Address and Telephone Number of Persons
Authorized to Receive Notices and Communications)
May 2, 2000
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a Statement on Schedule
13G to report the acquisition which is the subject of this Schedule
13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4),
check the following box |_|.
(Continued the following pages)
CUSIP NO. 575111107 13D
1. NAME OF REPORTING PERSON
Wasserstein Perella Group, Inc.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 13-3447267
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |X|
3. SEC USE ONLY
4. SOURCE OF FUNDS
OO
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(D) OR 2(E)
|-|
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware, U.S.A.
NUMBER OF 7. SOLE VOTING POWER
0
SHARES 8. SHARED VOTING POWER
800,641
BENEFICIALLY 9. SOLE DISPOSITIVE POWER
0
OWNED BY EACH 10 SHARED DISPOSITIVE POWER
800,641
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
800,641
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
| |
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.4%
14. TYPE OF REPORTING PERSON
HC, CO
CUSIP NO. 575111107 13D
1. NAME OF REPORTING PERSON
WP Management Partners, L.L.C.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 13-3891498
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |X|
3. SEC USE ONLY
4. SOURCE OF FUNDS
OO
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(D) OR 2(E)
|-|
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware, U.S.A.
NUMBER OF 7. SOLE VOTING POWER
0
SHARES 8. SHARED VOTING POWER
800,641
BENEFICIALLY 9. SOLE DISPOSITIVE POWER
0
OWNED BY EACH 10 SHARED DISPOSITIVE POWER
800,641
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
800,641
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
| |
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.4%
14. TYPE OF REPORTING PERSON
CO
CUSIP NO. 575111107 13D
1. NAME OF REPORTING PERSON
U.S. Equity Partners, L.P.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 13-3891500
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |X|
3. SEC USE ONLY
4. SOURCE OF FUNDS
OO
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(D) OR 2(E)
|-|
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware, U.S.A.
NUMBER OF 7. SOLE VOTING POWER
601,667
SHARES 8. SHARED VOTING POWER
0
BENEFICIALLY 9. SOLE DISPOSITIVE POWER
601,667
OWNED BY EACH 10 SHARED DISPOSITIVE POWER
0
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
601,667
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
| |
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.5%
14. TYPE OF REPORTING PERSON
PN
1. NAME OF REPORTING PERSON
U.S. Equity Partners (Offshore), L.P.
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |X|
3. SEC USE ONLY
4. SOURCE OF FUNDS
OO
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(D) OR 2(E)
|-|
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
NUMBER OF 7. SOLE VOTING POWER
162,945
SHARES 8. SHARED VOTING POWER
0
BENEFICIALLY 9. SOLE DISPOSITIVE POWER
162,945
OWNED BY EACH 10 SHARED DISPOSITIVE POWER
0
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
162,945
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
| |
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.5%
14. TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
This Statement (the "Statement") constitutes the Schedule 13D (the
"Schedule 13D") of Wasserstein Perella Group, Inc., a Delaware corporation
("WPG"), WP Management Partners, L.L.C., a Delaware limited liability
company ("WPMP"), U.S. Equity Partners, L.P., a Delaware limited
partnership ("USEP Delaware"), and U.S. Equity Partners (Offshore), L.P., a
Cayman Islands limited partnership ("USEP Offshore"). For a description of
the relationship among the parties to the Schedule 13D, see Item 2 below.
The item numbers and responses thereto are set forth below in accordance
with the requirements of Schedule 13D.
Item 1. Security and Issuer.
This Statement relates to shares of common stock, no par value
("Common Stock"), of Odwalla, Inc. (the "Company"). The Company is a
corporation organized under the laws of the state of California, and has
its principal executive offices located at 120 Stone Pine Road, Half Moon
Bay, California, 94109. The Common Stock is traded on the NASDAQ under the
ticker ODWA.
The shares of Common Stock to which this statement relates were
purchased on May 2, 2000 pursuant to the terms of the Stock Purchase
Agreement (the "Purchase Agreement"), dated as of February 11, 2000, as
amended on May 2, 2000, by and among USEP Delaware, USEP Offshore,
BancBoston Investments, Inc., a Massachusetts corporation ("BancBoston"),
Catterton-Simon Partners, L.P., a Delaware limited partnership
("Catterton") and the Company. As a result of the transaction consummated
pursuant to the Purchase Agreement, USEP Delaware purchased 601,677 shares
of Common Stock and USEP Offshore purchased 162,945 shares of Common Stock.
The Purchase Agreement and amendment thereto are filed as Exhibits 1 and 2
hereto (see Item 6 below).
In connection with the Purchase Agreement, the Company, USEP
Delaware, USEP Offshore, BancBoston, Catterton and certain principal
shareholders and management of the Company entered into a Shareholders
Rights Agreement, dated as of May 2, 2000, and filed as Exhibit 3 hereto
(the "Shareholder Rights Agreement") (see Item 6 below).
Item 2. Identity and Background.
(a) This Statement is being filed by (i) WPG, (ii) WPMP, (iii)
USEP Delaware and (iv) USEP Offshore. WPG, WPMP, USEP Delaware, and USEP
Offshore are herein referred to as the "Reporting Persons." USEP Delaware
and USEP Offshore are herein referred to as the "Holders." WPG is the
indirect owner of 100% membership interest in WPMP. WPMP is the sole
general partner of USEP Delaware and USEP Offshore.
(b) USEP Offshore has its principal office located at c/o
Caledonia Bank & Trust Limited, P.O. Box 1043, Georgetown, Grand Cayman,
Cayman Islands, B.V.I. The address of the principal business and office of
the other Reporting Persons is 31 West 52nd Street, 26th Floor, New York,
New York 10019-6163.
Schedule I hereto, which is incorporated herein by reference, sets
forth the name, business address, present principal occupation or
employment (and the name, principal business and address of any corporation
or other organization in which such employment is conducted) and the
citizenship of the directors, executive officers and general partners of
WPG, WPMP, USEP Delaware and USEP Offshore.
(c) The principal business of WPG is to engage, through its
subsidiaries, in merchant banking, investment banking and securities sales,
trading and underwriting activities. The principal business of WPMP is to
act as general partner of certain partnerships affiliated with WPG. The
principal business of USEP Delaware and USEP Offshore is to engage in
merchant banking activities.
(d)-(e) None of the Reporting Persons and, to their knowledge,
none of the persons identified in Schedule I hereto has, during the last
five years, been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or been a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction and as a
result of such proceeding was or is subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
Pursuant to the Purchase Agreement, USEP Delaware purchased of
601,667 shares of Common Stock of the Company for $3,757,350 and the source
of funds used by USEP Delaware to make this purchase was a pool of capital
raised for transactions of this type. Pursuant to the Purchase Agreement,
USEP Offshore purchased of 162,945 shares of Common Stock of the Company
for $1,017,575 and the source of funds used by USEP Offshore to make this
purchase was a pool of capital raised for transactions of this type.
Item 4. Purpose of the Transaction.
The principal purpose of the transaction described under Item 3
above was the acquisition of an equity stake in the Company. Pursuant to
the Shareholders Rights Agreement, USEP Delaware, USEP Offshore and
BancBoston, collectively, will have the right to designate one Director to
the Board of Directors of the Company. For a more detailed description of
the above arrangements, see Item 6 below.
The Reporting Persons from time to time intend to review their
investment in the Company on the basis of various factors, including the
Company's business, financial condition, results of operations and
prospects, general economic and industry conditions, the securities markets
in general and those for the Company's securities in particular, as well as
other developments and other investment opportunities. Based upon such
review, the Reporting Persons will take such actions in the future as the
Reporting Persons may deem appropriate in light of the circumstances
existing from time to time. A Reporting Person may acquire Common Stock or
other securities of the Company either in the open market or in privately
negotiated transactions. Similarly, a Reporting Person may determine to
dispose of some or all of the Company's securities currently owned by it or
otherwise acquired by it either in the open market (subject to applicable
legal restrictions) or in privately negotiated transactions, pursuant to
the terms of the Shareholders Rights Agreement.
Except as set forth above, the Reporting Persons do not have any
plans or proposals that relate to or would result in: (a) the acquisition
by any person of additional securities of the Company or the disposition of
securities of the Company, (b) an extraordinary corporate transaction
involving the Company or any of its subsidiaries, (c) a sale or transfer of
a material amount of the assets of the Company or any of its subsidiaries,
(d) any change in the present board of directors or management of the
Company, (e) any material change in the present capitalization or dividend
policy of the Company, (f) any other material change in the Company's
business or corporate structure, (g) any change in the Company's charter or
bylaws or other instrument corresponding thereto or other action which may
impede the acquisition of control of the Company by any person, (h) causing
a class of securities of the Company to be deregistered or delisted, (i) a
class of equity securities of the Company becoming eligible for termination
of registration or (j) any action similar to any of those enumerated above.
Item 5. Interest in the Securities of the Issuer.
(a) As of May 2, 2000 and pursuant to the Purchase Agreement, USEP
Delware, USEP Offshore directly hold 601,667 and 162,945, respectively;
(for an aggregate of 764,612 shares), representing 5.5% and 1.5%,
respectively, or a total of 7% of the Common Stock based on the 10,871,857
shares of Common Stock issued and outstanding at May 2, 2000.
In computing the percentage ownership of Common Stock for the
purposes of this Schedule 13D, the Reporting Persons have relied on the
information received from the Company. As of May 2, 2000 and following the
transactions described herein, there were 10,871,857 shares of Common Stock
of the Company outstanding. To the best knowledge and belief of the
Reporting Persons, no other person listed on Schedule I hereto beneficially
owns any shares of Common Stock.
As the indirect owner of 100% membership interest in WPMP, WPG may
be deemed to be the indirect beneficial owner of all shares of Common Stock
owned by USEP Delaware and USEP Offshore.
As sole general partner of USEP Delaware and USEP Offshore, WPMP
may be deemed to be the indirect beneficial owner of all shares of Common
Stock owned by USEP Delaware and USEP Offshore.
Pursuant to the Purchase Agreement, BancBoston purchased 36,026
shares of Common Stock representing 0.3% of the Common Stock based on
10,871,857 shares of Common Stock issued and outstanding at May 2, 2000.
Pursuant to the Co-Investment Agreement (the "Co-Investment Agreement"),
dated May 2, 2000, by and among USEP Delaware, USEP Offshore, WPMP and Banc
Boston, BancBoston granted WPMP certain voting and disposition rights with
respect to their shares of Common Stock. WPMP may be deemed to beneficially
own the shares of Common Stock of the Company directly owned by BancBoston
by reason of this contractual relationship with BancBoston. See Item 6.
(b) Accordingly, for the purpose of this statement. (i) WPG is
reporting that it shares the power to vote or direct the vote and the power
to dispose or direct the disposition of the 601,667 shares owned by USEP
Delaware and the 162,945 shares owned by USEP Offshore; (ii) WPMP is
reporting that it shares the power to vote or direct the vote and the power
to dispose and direct the disposition of the 601,667 shares owned by USEP
Delaware, the 162,945 shares owned by USEP Offshore and the 36,029 shares
owned by BancBoston; (iii) with the exception of the restrictions on voting
and disposition provided in the Shareholders Rights Agreement, each Holder
has sole power to vote and to direct the vote and to dispose or direct the
disposition of its shares of Common Stock.
(c) To the best knowledge of the Reporting Persons, none of the
persons named in Schedule I attached hereto has effected any transactions
in securities of the Company during the past 60 days.
(d) To the best knowledge of the Reporting Persons, no other
person has the right to receive or the power to direct the receipt of
dividends from, or the proceeds from the sale of, any shares of Common
Stock beneficially owned by the Reporting Persons.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to the Securities of the Issuer.
A. Stock Purchase Agreement
Pursuant to the Purchase Agreement, dated as of February 11, 2000,
as amended on May 2, 2000, by and among the Company, U.S. Equity Partners,
L.P., U.S. Equity Partners (Offshore), L.P., BancBoston and Catterton-Simon
Partners, L.P., USEP Delaware purchased 601, 677 shares of Common Stock of
the Company, USEP Offshore purchased 162,945 shares of Common Stock of the
Company, and BancBoston purchased 36,029 shares of Common Stock of the
Company.
B. Shareholders Rights Agreement
In connection with the Purchase Agreement, the Company, USEP
Delaware, USEP Offshore, BancBoston, Catterton and certain principal
shareholders and management of the Company entered into a Shareholders
Rights Agreement. The Shareholders' Rights Agreement grants the parties to
the agreement rights to register their shares of Common Stock, co-sale
rights in the event another party sells its shares of Common Stock, a
standstill agreement with respect to the purchase of additional shares of
Common Stock and transfer restrictions with respect to shares of Common
Stock under certain cases for one year from the date of the Shareholders
Rights Agreement, and a voting agreement to elect members of the board of
directors of the Company. The Shareholders Rights Agreement also grants the
Company a right of first offer with respect to transfers of Common Stock by
USEP Delaware and USEP Offshore. The Shareholders Rights Agreement is filed
as Exhibit 3 hereto.
C. Co-Investment Agreement
Pursuant to the Co-Investment Agreement, dated May 2, 2000, by and
among USEP Delaware, USEP Offshore, WPMP and BancBoston, BancBoston has
granted WPMP an irrevocable proxy granting WPMP the power to vote the
36,029 shares purchased by BancBoston under the Purchase Agreement provided
that such power is exercised so as to cause such shares to be voted in the
same manner as the shares purchased by USEP Delaware and USEP Offshore are
voted. In addition, in the event that WPMP directly or indirectly sells,
transfers, exchanges, converts or otherwise disposes of the shares of
Common Stock held by USEP Delaware and USEP Offshore pursuant to the
Purchase Agreement, WPMP shall take all necessary action to simultaneously
sell, transfer, exchange, convert or otherwise dispose of the shares of
Common Stock purchase by BancBoston. In addition, BancBoston cannot dispose
of the shares of Common Stock without WPMP's consent. The Co-Investment
Agreement is filed as Exhibit 4 hereto.
Item 7. Material to be Filed as Exhibits.
INDEX TO EXHIBITS
Exhibit Description
No.
1. Stock Purchase Agreement, dated as of February 11, 2000, by and
among Odwalla, Inc., U.S. Equity Partners, L.P., and
Catterton-Simon Partners, L.P.
2. Amendment No. 1 to Stock Purchase Agreement, dated as of May 2,
2000, by and among Odwalla, Inc., U.S. Equity Partners, L.P.,
U.S. Equity Partners (Offshore), L.P., BancBoston and
Catterton-Simon Partners, L.P.
3. Shareholders Rights Agreement, dated as of May 2, 2000, by and
among Odwalla, Inc., Samantha Investors, L.L.C., and those
shareholders of Odwalla and other Persons listed on Schedule 1
thereto.
4. Co-Investment Agreement, dated as of May 2, 2000, by and among
US Equity Partners, Inc., US Equity Partners (Offshore), Inc.,
WP Management Partners, L.L.C. and BancBoston Investments, Inc.
5. Joint Filing Agreement among Wasserstein Perella Group, Inc., WP
Management Partners, L.L.C., U.S. Equity Partners, L.P., and
U.S. Equity Partners (Offshore), L.P.
SIGNATURE
After reasonable inquiry and to the best of its knowledge
and belief, each of the undersigned certifies that the information set
forth in this statement is true, complete and correct and agrees that this
statement may be jointly filed on behalf of it and each of the other
undersigned.
DATED: May 12, 2000 WASSERSTEIN PERELLA GROUP, INC.
By /s/ James C. Kingsbery
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Name: James C. Kingsbery
Title: Chief Financial Officer
WP MANAGEMENT PARTNERS, L.L.C.
By /s/ James C. Kingsbery
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Name: James C. Kingsbery
Title: Treasurer
U.S. EQUITY PARTNERS, L.P.
By WP MANAGEMENT PARTNERS, L.L.C.
Its Sole General Partner
By /s/ James C. Kingsbery
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Name: James C. Kingsbery
Title: Treasurer
U.S. EQUITY PARTNERS (OFFSHORE), L.P.
By WP MANAGEMENT PARTNERS, L.L.C.
Its Sole General Partner
By /s/ James C. Kingsbery
-------------------------
Name: James C. Kingsbery
Title: Treasurer
SCHEDULE I
INFORMATION WITH RESPECT TO DIRECTORS AND EXECUTIVE OFFICERS OF WPG AND
WPMP AS GENERAL PARTNER OF USEP DELAWARE AND USEP OFFSHORE
Each of the individuals listed below is a United States citizen. The
business address of each such individual is 31 West 52nd Street, 27th
Floor, New York, New York 10019-6163.
WPG
Directors. Certain information with respect to each of the directors is set
forth below.
Michael J. Biondi is a Director and Chief Operating Officer of WPG.
Bill Lambert is a Director of WPG.
Frederic M. Seegal is a Director and President of WPG.
Hiromasa Takakura is a Director of WPG.
Bruce Wasserstein is Chairman of the Board of WPG.
Executive Officers. Certain information with respect to each of the executive
officers who is not also a director is set forth below.
Ashish Bhutani is Deputy Chairman of WPG.
Vincent J. Capurso is a Vice President and Director of Taxes of WPG.
Lee Siegel is General Counsel and Assistant Secretary of WPG.
James C. Kingsbery is Chief Financial Officer, Treasurer and
Secretary of WPG.
Jeanne Vicari is Vice President & Controller of WPG.
WPMP
Members. Certain information with respect to each of the members is set
forth below.
Wasserstein & Co, Inc., a Delaware corporation and an indirectly
wholly-owned subsidiary of WPG, has a 100% membership interest in
WPMP.
Management Committee
Bruce Wasserstein
Ellis B. Jones
George L. Majoros, Jr.
W. Townsend Ziebold, Jr.
Michael Biondi
Executive Officers. Certain information with respect to each of the executive
officers is set forth below.
Michael Biondi is President of WPMP.
W. Townsend Ziebold, Jr. is a Vice President of WPMP.
George L. Majoros is a Vice President of WPMP.
Vincent J. Capurso is a Vice President and Director of Taxes of WPMP.
Lee Siegel is Secretary of WPMP.
James C. Kingsbery is Secretary and Treasurer of WPMP.
Robert Mersten is a Vice President of WPMP.
Ellis B. Jones is an Executive Vice President of WPMP.
Anup Bagaria is a Vice President of WPMP.
Jordan S. Bernstein is Assistant Secretary of WPMP.
USEP DELAWARE
General Partner - WPMP is the sole general partner of USEP Delaware.
USEP OFFSHORE
General Partner - WPMP is the sole general partner of USEP Offshore.
INDEX TO EXHIBITS
Exhibit Description
No.
1. Stock Purchase Agreement, dated as of February 11, 2000, by and
among Odwalla, Inc., U.S. Equity Partners, L.P., and
Catterton-Simon Partners, L.P.
2. Amendment No. 1 to Stock Purchase Agreement, dated as of May 2,
2000, by and among Odwalla, Inc., U.S. Equity Partners, L.P., U.S.
Equity Partners (Offshore), L.P. and Catterton-Simon Partners, L.P.
3. Shareholders Rights Agreement, dated as of May 2, 2000, by and
among Odwalla, Inc., Samantha Investors, L.L.C., and those
shareholders of Odwalla and other Persons listed on Schedule 1
thereto.
4. Co-Investment Agreement, made as of May 2, 2000, by and among US
Equity Partners, Inc., US Equity Partners (Offshore), Inc., WP
Management Partners, L.L.C. and BancBoston Investments, Inc.
5. Joint Filing Agreement among Wasserstein Perella Group, Inc., WP
Management Partners, L.L.C., U.S. Equity Partners, L.P., and U.S.
Equity Partners (Offshore), L.P.
ODWALLA, INC.
STOCK PURCHASE AGREEMENT
Dated as of February 11, 2000
ODWALLA, INC.
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is entered into as
of February 11, 2000, by and among ODWALLA, INC., a California corporation
(the "Company"), and the investors on Schedule I attached hereto (each, an
"Investor," and collectively, the "Investors").
RECITALS
A. The Company, Orange Acquisition Sub, a Maine corporation ("Merger
Sub"), Fresh Samantha, Inc., a Maine corporation ("Samantha"), and
certain other signatories thereto, have entered into that certain
Agreement and Plan of Merger, dated as of February 2, 2000 (the
"Merger Agreement"), to effectuate the merger (the "Merger") of
Merger Sub with and into Samantha with Samantha as the surviving
corporation and wholly owned subsidiary of the Company.
B. In connection with the Merger, pursuant to the terms and subject
to the conditions of this Agreement, the Investors wish to
collectively purchase Six Million Dollars ($6,000,000) of the
Common Stock of the Company (the "Common Stock," and such shares
to be purchased pursuant to this Agreement, the "Stock").
AGREEMENT
The Company and each of the Investors, intending to be legally
bound, agree as follows:
1. AGREEMENT TO SELL AND PURCHASE STOCK.
1.1 SALE AND PURCHASE OF STOCK.
Upon the terms and subject to the conditions set forth in this
Agreement, each Investor agrees, severally and not jointly, to purchase at
the Closing (as defined below), and the Company agrees to sell and issue to
each Investor at the Closing, the number of shares of Stock set forth next
to such Investor's name on Schedule I attached hereto for the purchase
price (the "Purchase Price") set forth next to such Investor's name on
Schedule I attached hereto.
1.2 PAYMENT OF PURCHASE PRICE AND DELIVERY OF CERTIFICATES.
(a) The closing (the "Closing") shall take place at the offices of
Morrison & Foerster LLP, 425 Market Street, San Francisco, California
94105, at 10:00 a.m. (Pacific time) on the first business date after the
Merger Closing Date (as defined below) or on such other date or at such
other place or time as the Company and the Investors may mutually agree
(such date is hereinafter referred to as the "Closing Date").
(b) At the Closing:
(i) each Investor shall (i) pay the Purchase Price to the Company by
wire transfer of immediately available funds, and (ii) deliver the
documents and agreements required hereunder to be delivered by such
Investor at the Closing; and
(ii) the Company shall deliver (i) certificates representing the Stock
sold to the Investors pursuant to this Agreement, and (ii) the other
documents and agreements required hereunder to be delivered by the Company
at the Closing.
(c) The "Merger Closing Date" shall refer to that date upon which all
of the conditions set forth in Sections 4.1 and 4.2 of the Merger Agreement
are satisfied or waived.
2. CLOSING CONDITIONS.
2.1 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE COMPANY.
The Company's obligation to sell and issue the Stock at the
Closing is subject to the satisfaction of the following conditions:
(a) the representations and warranties made by the Investors in
Section 4 hereof shall be true and accurate in all material respects as of
the date of this Agreement and as of the Closing Date as though made on and
as of the Closing Date;
(b) all covenants and agreements contained in this Agreement to be
observed by the Investors on or prior to the Closing shall have been
performed or complied with in all material respects;
(c) each Investor shall have delivered the following documents to the
Company:
(i) the Shareholders' Rights Agreement, substantially in the form
attached hereto as Exhibit A (the "Rights Agreement"), duly executed by
each Investor;
(ii) a certificate (the "Investor Closing Certificate") of each
Investor, dated as of the Closing Date, and certifying to the satisfaction
of the conditions specified in Sections 2.1(a) and (b) with respect to such
Investor;
(d) each of the consents identified or required to be identified in
Part 3.6 of the Disclosure Schedule shall have been obtained and shall be
in full force and effect;
(e) the Merger shall have been consummated pursuant to all of the
material terms and conditions contained in the Merger Agreement as of the
date of this Agreement, including the conversion of the shares of Preferred
Stock (as defined below) held by Catterton (as defined below) into shares
of Common Stock; except to the extent (A) (i) any change in the material
terms and conditions contained in the Merger Agreement as of the date of
this Agreement benefit the Company, or (ii) the waiver or non-satisfaction
of a condition contained in the Merger Agreement is for the benefit of the
Company, and (B) the Merger is consummated, including the conversion of the
shares of Preferred Stock held by Catterton into shares of Common Stock;
and
(f) neither the consummation nor the performance of the transactions
contemplated by this Agreement (the "Transactions") will, directly or
indirectly (with or without notice or lapse of time), contravene or
conflict with or result in a violation of, or cause a material adverse
effect on the condition (financial or otherwise), assets, liabilities,
obligations, business, properties, prospects or results of operations (a
"Material Adverse Effect") of the Company as presently conducted or as
proposed to be conducted, together with its subsidiaries taken as a whole,
as a result of, specifically, (i) a change in any applicable legal
requirement after the date of this Agreement or any federal or state
judgment, order, writ, decree, statute or regulation of any court,
regulatory body or administrative agency or other governmental body
applicable to the Company (an "Order") issued after the date of this
Agreement, or (ii) any legal requirement or Order that is proposed after
the date of this Agreement by or before any governmental body.
2.2 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE INVESTORS.
Each Investor's obligation to purchase the Stock at the Closing is
subject to the satisfaction of the following conditions:
(a) the representations and warranties made by the Company in Section
3 hereof shall be true and accurate in all material respects as of the date
of this Agreement and as of the Closing Date as though made on and as of
the Closing Date;
(b) all covenants and agreements contained in this Agreement to be
observed by the Company on or prior to the Closing shall have been
performed or complied with in all material respects;
(c) the Company shall have delivered the following documents to the
Investors:
(i) the Rights Agreement, duly executed by the Company;
(ii) the legal opinion of Morrison & Foerster, LLP, counsel to the
Company, dated the Closing Date, in substantially the form of Exhibit B;
(iii) a certificate (the "Company Closing Certificate") executed on
behalf of the Company by a senior executive officer of the Company, dated
as of the Closing Date, certifying to the satisfaction of the conditions
specified in Sections 2.2(a) and (b) with respect to the Company;
(d) there shall not have occurred and be continuing any material
disruption of, or material adverse change in, the conditions of financial,
banking or capital markets;
(e) there shall have been no event or circumstance after the date of
this Agreement that is reasonably likely to have a Material Adverse Effect
on the Company;
(f) neither the consummation nor the performance of the Transactions
will, directly or indirectly (with or without notice or lapse of time),
contravene or conflict with or result in a violation of, or cause a
Material Adverse Effect on the Company as a result of, specifically, (i) a
change in any applicable legal requirement after the date of this Agreement
or any Order issued after the date of this Agreement, or (ii) any legal
requirement or Order that is proposed after the date of this Agreement by
or before any governmental body; and
(g) all of the material terms and conditions contained in the Merger
Agreement as of the date of this Agreement shall have been complied with or
satisfied, as the case may be, by the applicable party thereto; except to
the extent (i) any change in the material terms and conditions contained in
the Merger Agreement as of the date of this Agreement benefit the Company,
or (ii) the waiver or non-satisfaction of a condition contained in the
Merger Agreement is for the benefit of the Company.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Except as specifically set forth in the disclosure schedule
provided by the Company and attached hereto as Schedule II (the "Disclosure
Schedule"), the parts of which are numbered to correspond to the Section
numbers of this Agreement, the Company hereby represents and warrants to
the Investors as follows:
3.1 ORGANIZATION; GOOD STANDING; QUALIFICATION.
The Company is a corporation duly organized, validly existing, and
in good standing under the laws of the State of California, has all
requisite corporate power and authority to own and operate its properties
and assets, to lease the property or assets it operates as lessee and to
carry on its business as described in the Company SEC Reports (as defined
in Section 3.7) filed on or prior to the date of this Agreement (the
"Existing Company SEC Reports"), to execute and deliver this Agreement, to
issue and sell the Stock and to carry out the provisions of this Agreement.
The Company is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which the character of the
property owned or leased or the nature of the business transacted by it
makes qualification necessary, except where the failure to be so qualified
would not have or could not reasonably be expected to have a Material
Adverse Effect on the Company.
3.2 CAPITALIZATION.
As of January 27, 2000, the authorized capital stock of the
Company consisted of (i) 15,000,000 shares of Common Stock, of which: (A)
5,125,761 shares were issued and outstanding, (B) 1,351,865 shares were
reserved for issuance upon the exercise of outstanding options under the
Company's stock option plans, (C) 106,806 shares were reserved for issuance
pursuant to the exercise of the Warrants (as defined below), and (D)
1,265,319 shares were reserved for issuance upon conversion of the Series A
Preferred Stock; and (ii) 5,000,000 shares of preferred stock (the
"Preferred Stock"), of which 1,265,319 shares had been designated Series A
Preferred Stock, of which 1,074,666 shares were issued and outstanding. The
outstanding shares of Preferred Stock and Common Stock have been duly
authorized and validly issued in compliance with applicable federal and
state securities laws, are fully paid and nonassessable, conform to the
descriptions thereof in the Existing Company SEC Reports, and were not
issued in violation of or subject to (i) any preemptive rights or other
rights to subscribe for or to purchase securities or (ii) any liens,
preferential rights, priorities, claims, options, charges or other
encumbrances or restrictions, other than those created by (A) the
Certificate of Determination filed in connection with the issuance of the
Preferred Stock, (B) the Investors' Rights Agreement (the "Original Rights
Agreement"), dated as of January 29, 1999, by and between the Company and
Catterton-Simon Partners III, L.P. ("Catterton"), (C) the Warrant dated
January 29, 1999 issued to Catterton to purchase 75,000 shares of Common
Stock (the "Catterton Warrant"), (D) the Warrant dated February 9, 1999
issued to Hambrecht & Quist LLC to purchase 24,806 shares of Common Stock
(the "H&Q Warrant"), and (E) the Warrant dated May 21, 1997 issued to Sand
Hill Capital LLC to purchase 7,000 shares of Common Stock (the "Sand Hill
Warrant" and collectively with the Catterton Warrant and the H&Q Warrant,
the "Warrants"). Except for (i) the rights and conversion of the Preferred
Stock, (ii) the options to purchase 1,351,865 shares of Common Stock
granted under the Company's stock option plans, (iii) the Warrants, and
(iv) the rights granted pursuant to the Original Rights Agreement, there
are no outstanding securities convertible into or exchangeable for capital
stock of the Company or any options, warrants, rights (including conversion
or preemptive rights, rights of first refusal, "tag along" rights, rights
of co-sale or any similar right), agreements or contracts for the purchase,
subscription to or acquisition of any shares of its capital stock from the
Company, or contracts, commitments, agreements, understandings or
arrangements of any kind to which the Company or any such holder of capital
stock is a party relating to the issuance of any capital stock of the
Company, any such convertible or exchangeable securities or any such
options, warrants or rights. The issuance of Stock in the Transactions will
not result in any adjustment to the number of shares issuable or the
purchase price, conversion or exchange rate applicable to any option,
warrant, convertible or exchangeable security or similar right of the
Company.
3.3 SUBSIDIARIES.
Except for the Merger Sub, the Company does not currently own or
control, directly or indirectly, any interest in any other corporation,
association or other business entity. The Company is not a participant in
any joint venture, partnership or similar arrangement.
3.4 AUTHORIZATION.
The Company has the requisite corporate power and authority to
enter into this Agreement and to perform its obligations hereunder. The
execution and delivery of this Agreement and the consummation by the
Company of the Transactions have been duly authorized by all necessary
corporate action on the part of the Company (other than approval of the
Merger by the shareholders of the Company). All corporate action necessary
for the authorization, execution and delivery of this Agreement, the
performance of all obligations of the Company hereunder at the Closing and
the authorization, and issuance of the Stock being issued pursuant to this
Agreement has been taken or will be taken prior to the Closing Date. This
Agreement constitutes or will constitute as of the Closing Date the valid
and legally binding obligation of the Company, enforceable against the
Company in accordance with its terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting enforcement of creditors' rights generally,
and (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies.
3.5 VALID ISSUANCE OF THE STOCK.
The Stock to be issued to the Investors pursuant to this
Agreement, when issued and delivered in accordance with the terms of this
Agreement for the consideration expressed herein, will be duly and validly
issued, fully paid, and nonassessable, and will be free of restrictions on
transfer other than restrictions on transfer under this Agreement and the
Rights Agreement.
3.6 GOVERNMENTAL AND THIRD-PARTY CONSENTS.
No consent, approval, qualification, Order or authorization of, or
filing with, any local, state, or federal governmental authority or
approval or consent of any third party is required on the part of the
Company in connection with the Company's execution, delivery or performance
of this Agreement, and the offer, sale or issuance of the Stock, except for
(i) the approval by the shareholders of Company of the Merger and related
matters, and (ii) the filings and submissions that the Company shall make
under the HSR Act in connection with the Merger.
3.7 SEC FILINGS; FINANCIAL STATEMENTS.
The Company has timely filed with the Securities and Exchange
Commission (the "SEC") and made available to each Investor or its
representatives all forms (other than Forms 3, 4 or 5 filed on behalf of
Affiliates (as defined below) of the Company), reports and documents
required to be filed by the Company with the SEC since January 1, 1997
(collectively, the "Company SEC Reports"). The Company SEC Reports (i) at
the time filed, complied with the applicable requirements of the Securities
Act of 1933, as amended (the "Securities Act"), and the rules thereunder,
and the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and the rules thereunder, as the case may be, and (ii) did not at the time
they were filed (or if amended or superseded by a filing prior to the date
of this Agreement, then on the date of such filing) contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading. To
the knowledge of the Company, the SEC has not issued an Order preventing or
suspending the use of any Company SEC Report, nor instituted Proceedings
for that purpose. The Company meets the eligibility requirements set forth
in Section I.A. of the General Instructions for the Use of Form S-3 under
the Securities Act. For purposes of this Agreement, "Affiliate" shall mean
a Person that directly or indirectly, through one or more intermediaries,
controls or is controlled by, or is under common control with, the Person
specified.
Each of the financial statements (including, in each case, any
related notes and schedules) contained in the Company SEC Reports,
including any such Company SEC Report filed from the date of the Merger
Agreement until the earlier of (i) the date on which the Merger Agreement
is terminated pursuant to its terms or (ii) the Merger Closing Date (such
time period, the "Pre-Closing Period"), complied with the applicable
published rules and regulations of the SEC with respect thereto, was
prepared in accordance with generally accepted accounting principals in the
United States from ("GAAP") applied on a consistent basis throughout the
periods involved (except as may be indicated in the notes to such financial
statements or, in the case of unaudited statements, as permitted by Form
10-Q under the Exchange Act) and fairly presented the financial position of
the Company at the respective dates and the results of operations and cash
flows of the Company for the periods indicated, and all adjustments
necessary for a fair presentation of results for such periods have been
made, except that the unaudited interim financial statements were or are
subject to normal and recurring year-end adjustments which were not or are
not expected to be material in amount.
3.8 NO CHANGES.
Since August 28, 1999:
(a) there has not been any change in the business, assets,
liabilities, financial condition, prospects or operating results of the
Company, from that reflected in the Company's financial statements
contained in the Company's Annual Report on Form 10-K for the fiscal year
ended August 28, 1999, except changes in the ordinary course of business
that individually or collectively have not had a Material Adverse Effect on
the Company;
(b) there has not been any damage, destruction or loss, whether or not
covered by insurance having a Material Adverse Effect on the Company;
(c) other than the Merger, the Company has not entered into any
material transaction (other than the Transactions) not referred to in the
Existing Company SEC Reports; and
(d) the Company has no liabilities except for liabilities reflected in
the Existing Company SEC Reports or incurred in the ordinary course of
business consistent with past practices.
3.9 COMPLIANCE WITH LAWS.
The Company now holds all licenses, certificates, permits,
franchises or other governmental authorization, registration, acceptance or
approval from state, federal and other regulatory authorities that are
necessary for the conduct of its business ("Governmental authorizations"),
other than where the failure to hold such Governmental Authorization is not
reasonably likely to have a Material Adverse Effect on the Company. Other
than as set forth in the Existing Company SEC Reports, the Company has
complied with, is not in violation of and has not received any notices of
violation or noncompliance and, to the knowledge of the Company, has no
reason to believe that any presently existing circumstances would result in
any violation with respect to, any federal, state or local statute, law,
ordinance, governmental rule or regulation or court decree to which the
Company may be subject, including any environmental laws, nor has the
Company failed to obtain any Governmental Authorization necessary to the
ownership, leasing or operation of its property or to the conduct of its
business as it is presently being carried on and as described in the
Existing Company SEC Reports, except for such noncompliance, violations or
failures to obtain such Governmental Authorization as would not have a
Material Adverse Effect on the Company.
3.10 COMPLIANCE WITH OTHER INSTRUMENTS; NO CONFLICT.
The Company is not in violation of any provision of its Articles
of Incorporation or Bylaws or in default of the performance or observance
of or breach under or with respect to any provision of any obligation,
agreement, covenant or condition contained in any bond, debenture, note or
other evidence of indebtedness or in any mortgage, indenture, deed of
trust, lease of real or personal property, undertaking, agreement,
instrument, contract, joint venture or other agreement or instrument to
which it is a party or by which it or any of its property is bound (a
"Company Contract") or, to its knowledge, of any federal or state Order,
except for such violations, defaults or breaches as would not have a
Material Adverse Effect on the Company. The Company has not received notice
that any party to any such Company Contract intends to cancel, amend or
terminate any such agreement, except where such cancellations, amendments
or terminations would not have a Material Adverse Effect on the Company.
The execution, delivery and performance by the Company of this Agreement,
the consummation of the Transactions and the fulfillment of the terms
hereof does not and will not (i) violate, conflict with or contravene the
terms of the Articles of Incorporation or the Bylaws of the Company, or any
amendment thereof; (ii) violate, conflict with or result in any material
breach or contravention or constitute a default under (a) any Company
Contract or (b) any Order or (iii) constitute, with or without the passage
of time or giving of notice, an event that results in the creation of any
lien, charge or encumbrance upon any assets of the Company or the
suspension, revocation, impairment, forfeiture, or nonrenewal of any
permit, license, authorization, or approval applicable to the Company, its
business or operations, or any of its assets or properties, except for such
violations, conflicts, defaults, breaches or similar consequences as would
not have a Material Adverse Effect on the Company.
3.11 LITIGATION.
Other than as disclosed in the Existing Company SEC Reports, there
is no private or governmental action, suit, proceeding, claim, arbitration
or investigation (each, a "Proceeding") pending or, to the knowledge of the
Company, threatened against the Company or any of its properties before any
agency, court or tribunal, foreign or domestic (A) affecting the
Transactions or (B) which, if determined adversely to the Company, would
have a Material Adverse Effect on the Company. The Company is not a party,
subject to the provisions of, or in default with respect to, any Order, and
there are no unsatisfied judgments against the Company. The Company has
made available to the Investors accurate and complete copies of all
pleadings, correspondence and other written materials to which the Company
has access that relate to Proceedings (i) to which the Company is currently
a party or (ii) which have been threatened in writing.
3.12 TAX RETURNS AND PAYMENTS.
The Company has timely filed all tax returns as required by law.
These tax returns are true, complete and correct in all material respects.
The Company has paid all taxes for all taxable periods ended on or prior to
the Closing Date, except where the failure to make such payment would not
have a Material Adverse Effect on the Company. The Company has not been
advised (a) that any of its returns, federal, state or other, have been or
are being audited as of the date hereof or (b) of any deficiency in
assessment or proposed judgment to its state or other taxes. The Company is
not aware of any tax liability to be imposed upon its properties or assets
as of the date of this Agreement that would have a Material Adverse Effect
upon the Company. There are no matters under discussion with any
governmental authorities with respect to taxes that in the reasonable
judgment of the Company are likely to result in a material additional
liability to the Company for taxes.
3.13 FINDERS AND BROKERS; FEES.
(a) Neither the Company nor any person acting on behalf of the Company
has engaged any finder, broker, intermediary or any similar person in
connection with the Transactions.
(b) The Company has not entered into a contract or other agreement
that provides that a fee shall be paid to any Person if the Transactions
are consummated.
Notwithstanding the foregoing, the Company has engaged W.R. Hambrecht &
Co., LLC ("WRH") to act as its financial advisor in connection with the
Merger pursuant to that certain Engagement Letter between the Company and
WRH dated December 17, 1999 and is obligated to pay WRH for certain fees
and expenses as disclosed on Part 3.13 of the Disclosure Schedule.
3.14 RIGHTS OF REGISTRATION.
Except as set forth in the Original Rights Agreement or as
contemplated in the Rights Agreement, the Company has not granted or agreed
to grant any registration rights, including piggyback rights, or other
material rights to any person or entity, (i) the provision or performance
of which would render the provision or performance (including the issuance
of the Company Stock) of the material rights to be granted to the Investors
by the Company in this Agreement, impracticable or (ii) for or relating to
the registration of any shares of capital stock of the Company that are
currently outstanding.
3.15 VOTING RIGHTS.
Except as set forth in the Original Rights Agreement, as
contemplated in the Rights Agreement or as contemplated by the Voting
Agreement to be entered into by Catterton and the Chief Executive Officer
of the Company, neither the Company, nor to the Company's knowledge, the
shareholders of the Company, has or have, as the case may be, entered into
any agreement with respect to the voting of capital shares of the Company
for the election of Directors of the Company or otherwise.
3.16 LABOR RELATIONS AND EMPLOYEE MATTERS.
(a) The Company is not engaged in any unfair labor practice. There is
(i) no unfair labor practice complaint pending or, to the knowledge of the
Company, threatened against the Company before the National Labor Relations
Board, and no grievance or arbitration proceeding arising out of or under
collective bargaining agreements is so pending or, to the knowledge of the
Company, threatened against the Company, (ii) no strike, labor dispute,
slowdown or stoppage pending or, to the knowledge of the Company,
threatened against the Company, and (iii) no union representation question
existing with respect to the employees of the Company and, to the knowledge
of the Company, no union organizing activities are taking place.
(b) Except as disclosed in the Existing Company SEC Reports, the
Company is not a party to any employment agreement (other than "at will"
employment relationships), collective bargaining agreement or covenant not
to compete, nor has the Company ever been party to any collective
bargaining agreement.
3.17 NO OTHER AGREEMENTS TO SELL THE ASSETS OR CAPITAL STOCK OF THE
COMPANY.
The Company does not have any legal obligation, absolute or
contingent, other than the obligations of the Company under this Agreement
or the Merger Agreement, to any person or firm to (i) sell assets other
than in the ordinary course of business consistent with past practices,
(ii) sell any capital stock of the Company or effect any merger,
consolidation or other reorganization of the Company or (iii) enter into
any agreement with respect to any of the foregoing.
3.18 PRIVATE PLACEMENT.
The offer, sale and issuance of the Stock as contemplated by this
Agreement is exempt from the registration requirements of the Securities
Act and state securities "blue sky" laws, and neither the Company nor any
authorized agent acting on its behalf will take any action hereafter that
would cause the loss of such exemptions.
4. REPRESENTATIONS AND WARRANTIES OF THE INVESTORS.
Each Investor, severally and not jointly, hereby represents and
warrants to the Company that:
4.1 AUTHORIZATION.
Each Investor has full power and authority to enter into this
Agreement, and each of the Agreement and the Rights Agreement constitutes,
or will constitute, the valid and legally binding obligation of each
Investor, enforceable against each Investor in accordance with its
respective terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general
application affecting enforcement of creditors' rights generally, and (ii)
as limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
4.2 DISCLOSURE OF INFORMATION.
Each Investor further represents that it has had an opportunity to
ask questions and receive answers from the Company regarding the terms and
conditions of the offering of the Stock and the business, properties,
prospects and financial condition of the Company.
4.3 STATUS.
(a) Each Investor is an "accredited investor" as that term is defined
in Rule 501(a) of Regulation D of the Securities Act.
(b) Each Investor, by reason of its business and financial experience
has such knowledge, sophistication and experience in financial and business
matters and in making investment decisions of this type that it is capable
of (i) evaluating the merits and risks of an investment in the Stock and
making an informed investment decision, (ii) protecting its own interest,
and (iii) bearing the economic risk of such investment for an indefinite
period of time.
4.4 INVESTMENT INTENT; CERTAIN RESTRICTIONS.
(a) Each Investor is acquiring the Stock for investment for its own
account, not as a nominee or agent and not with the view to, or any
intention of, a resale or distribution thereof, in whole or in part, or the
grant of any participation therein. Each Investor understands that the
Stock has not been, and will not be, registered under the Securities Act or
state securities laws by reason of specific exemptions from the
registration provisions of the Securities Act and applicable state
securities laws that depend upon, among other things, the bona fide nature
of each Investor's investment intent and the accuracy of each Investor's
representations as set forth in this Section 4. Each Investor has not been
formed for the specific purpose of acquiring the Stock. Each Investor
further understands that, other than pursuant to the Rights Agreement, the
Company shall have no obligation to register the Stock under the Securities
Act or any state securities laws or to take any action that would make
available any exemption from the registration requirements of such laws.
Each Investor hereby acknowledges that because of the restrictions on
transfer and assignment of the Stock, each Investor may have to bear the
economic risk of the investment in the Stock for an indefinite period of
time.
(b) Each Investor will observe and comply with the Securities Act and
the rules and regulations promulgated thereunder, as now in effect and as
from time to time amended, in connection with any offer, sale, pledge,
transfer or other disposition of the Stock, including the conditions set
forth in Section 5.28(m) of the Merger Agreement.
4.5 RESTRICTED SECURITIES.
Each Investor understands that the shares of Stock it is
purchasing are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration
under the Securities Act only in certain limited circumstances. In this
connection, each Investor represents that it is familiar with Rule 144, as
presently in effect, and understands the resale limitations imposed hereby
and by the Securities Act.
5. PRE-CLOSING COVENANTS OF THE COMPANY.
5.1 NOTIFICATION; UPDATES TO COMPANY DISCLOSURE SCHEDULE.
During the Pre-Closing Period, the Company shall promptly notify
the Investors in writing of:
(a) the discovery by the Company of any event, condition, fact or
circumstance that constitutes a material breach of any representation or
warranty made by the Company in this Agreement; and
(b) any event, condition, fact or circumstance that would make the
timely satisfaction of any of the conditions set forth in Section 2.2
impossible or unlikely.
5.2 BEST EFFORTS.
During the Pre-Closing Period, the Company shall use its
commercial best efforts to cause the conditions set forth in Section 2.2 to
be satisfied on a timely basis, and shall not take any action or omit to
take any action, the taking or omission of which would or could reasonably
be expected to result in any of the conditions to Closing set forth in
Section 2.2 not being satisfied.
6. PRE-CLOSING COVENANTS OF THE INVESTORS.
6.1 BEST EFFORTS.
During the Pre-Closing Period, each Investor shall use its
commercial best efforts to cause the conditions set forth in Section 2.1 to
be satisfied on a timely basis, and shall not take any action or omit to
take any action, the taking or omission of which would or could reasonably
be expected to result in any of conditions to Closing set forth in Section
2.1 not being satisfied.
7. OTHER MATTERS.
7.1 RESTRICTIVE LEGEND.
All certificates representing the Stock deliverable to each Investor
pursuant to this Agreement, and any certificates subsequently issued with
respect thereto or in substitution therefor, shall bear the following
legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED
UNLESS PURSUANT TO THE TERMS specified in thAT certain Stock
Purchase Agreement, DATED AS OF February 11, 2000, and
SHAREHOLDERS' rights agreement, dated as of APRIL __, 2000. copIES
of such Agreements may be obtained froM ODWALLA, INC. without
charge, by the holder of this certificate upon written request
therefor.
The Company, in its sole discretion, may cause a stop transfer order
to be placed with its transfer agent(s) on any certificate representing the
Stock at any time and from time to time.
7.2 CALIFORNIA SECURITIES LAWS.
THE SALE OF THE SECURITIES THAT ARE THE SUBJECT OF THIS AGREEMENT HAS
NOT BEEN QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE OF
CALIFORNIA AND THE ISSUANCE OF SUCH SECURITIES OR THE PAYMENT OR RECEIPT OF
ANY PART OF THE CONSIDERATION FOR SUCH SECURITIES PRIOR TO SUCH
QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT FROM
QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA
CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE
EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE
SALE IS SO EXEMPT.
7.3 PUBLIC DISCLOSURE.
Unless otherwise required by law (including securities laws) or, as to
the Company, by the rules and regulations of the National Association of
Securities Dealers ("NASD"), prior to the Merger Closing Date, no
disclosure (whether or not in response to an inquiry) of the subject matter
of this Agreement or the Merger shall be made by any party hereto unless
approved in writing by the Company prior to release (which approval shall
not be unreasonably withheld); provided, that the parties agree and
understand that certain disclosures regarding the Transactions may be made
to (i) employees of the Company, (ii) third parties whose consent or
approval may be required in connection with the Transactions, and (iii) the
professional advisors of the Company and/or the Investors, in each case
without any prior written consent.
8. TERMINATION.
8.1 TERMINATION EVENTS.
This Agreement may be terminated prior to Closing:
(a) by the Investors if there is a material breach or inaccuracy in
any representation, warranty, covenant or obligation of the Company after
the date of this Agreement and prior to the Closing and such breach or
inaccuracy has not been cured within ten (10) business days after written
notice of such breach is given to the Company;
(b) by the Company if there is a material breach or inaccuracy in any
representation, warranty, covenant or obligation of the Investors after the
date of this Agreement and prior to the Closing and such breach or
inaccuracy has not been cured within ten (10) business days after written
notice of such breach is given to the Investors;
(c) by either the Company or the Investors if the Closing has not
taken place on or before September 30, 2000; or
(d) by the mutual consent of the Investors and the Company.
8.2 TERMINATION PROCEDURES.
If the Investors wish to terminate this Agreement pursuant to
Section 8.1(a), the Investors shall deliver to the Company a written notice
stating that the Investors are terminating this Agreement and setting forth
a brief description of the basis on which the Investors are terminating
this Agreement. If the Company wishes to terminate this Agreement pursuant
to Section 8.1(b), the Company shall deliver to the Investors a written
notice stating that the Company is terminating this Agreement and setting
forth a brief description of the basis on which the Company is terminating
this Agreement.
8.3 EFFECT OF TERMINATION.
If this Agreement is terminated pursuant to Section 8.1, all
further obligations of the parties under this Agreement shall terminate;
provided, that each party shall remain liable for any breaches of this
Agreement prior to its termination and provided, further, that Sections
7.3, 9.2, 9.3 and 9.10 shall survive the termination of this Agreement.
8.4 EXCLUSIVITY OF TERMINATION RIGHTS.
Except to the extent termination occurs due to the bad faith of
the other party, the termination rights and obligations provided in this
Section 8 shall be deemed to be exclusive. Subject to the provisions of
Section 8.3, the parties shall not have any other or further Liabilities to
or with respect to one another by reason of this Agreement or its
termination.
9. MISCELLANEOUS.
9.1 FURTHER ASSURANCES.
Each party hereto shall execute and/or cause to be delivered to
each other party hereto such instruments and other documents, and shall
take such other actions, as such other party may reasonably request (prior
to, at or after the Closing) for the purpose of carrying out or evidencing
any of the Transactions.
9.2 FEES AND EXPENSES.
Each party to this Agreement shall bear and pay its own costs and
expenses with respect to the negotiation, execution, delivery and
performance of this Agreement.
9.3 ATTORNEYS' FEES.
If any legal action or other legal Proceeding (including
arbitration) relating to the Transactions or the enforcement of any
provision of any of the Transactional Agreements is brought against any
party hereto, the Person presiding over such action or other Proceeding may
award reasonable attorneys' fees, costs and disbursements to the prevailing
party (in addition to any other relief to which the prevailing party may be
entitled).
9.4 GOVERNING LAW; ARBITRATION.
(a) This Agreement is to be construed in accordance with and governed
by the laws of the State of California (as permitted by Section 1646.5 of
the California Civil Code or any similar successor provision), without
giving effect to any choice of law rule that would cause the application of
the laws of any jurisdiction other than the State of California to the
rights and duties of the parties.
(b) Any controversy or claim arising out of or relating to this
Agreement, or breach thereof, shall be settled by arbitration administered
by the American Arbitration Association in accordance with its then
existing Commercial Arbitration rules and judgment upon the award rendered
by the arbitrator may be entered in any court having jurisdiction thereof.
The arbitrator shall be appointed by mutual agreement of the Company and
the Investor(s) involved in such controversy or claim, but, if the Company
and such Investor(s) fail to agree, the arbitrator shall be appointed by
the American Arbitration Association in accordance with its then existing
rules. The place of the arbitration shall be San Francisco, California and
the governing law shall be the laws of the State of California in
accordance with Section 9.4(a) of this Agreement.
9.5 SUCCESSORS AND ASSIGNS.
Except as otherwise expressly provided herein, the provisions
hereof shall inure to the benefit of, and be binding upon, the successors,
assigns, heirs, executors and administrators of the parties hereto and
shall inure to the benefit of and be enforceable by each person who shall
be a holder of the Stock from time to time. None of the parties hereto may
assign any of its or their rights or obligations hereunder to any other
party (by contract, operation of law or otherwise) without the prior
written consent of the other, which consent shall not be unreasonably
withheld, and any attempted assignment in violation thereof shall be void
and of no effect.
9.6 ENTIRE AGREEMENT.
This Agreement, the Schedules and the Exhibits hereto, the Rights
Agreement and the other documents contemplated expressly hereby and thereby
constitute the full and entire understanding and agreement among the
parties thereto with regard to the subjects hereof and thereof and
supersede all prior agreements and understandings among or between any of
the parties relating to the subject matter hereof and thereof.
9.7 SEPARABILITY.
In case any provision of this Agreement shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby,
unless such provision is material to the terms of this Agreement, in which
case the Company and the Investors shall in good faith agree upon such
amendments as are necessary to restore the original intent and arrangement
between the parties.
9.8 AMENDMENTS.
This Agreement may be amended or modified only upon the written
consent of the Company and the Investors. Any amendment or modification
effected pursuant to this Section 9.8 shall be binding upon the Company and
the Investors.
9.9 NOTICES.
Any notice or other communication required or permitted to be
delivered to any party under this Agreement shall be in writing and shall
be deemed properly delivered and given (a) on the date delivered or given,
when delivered or given by hand or by telecopier during business hours, (b)
one business day after being delivered or given by courier or next-day
express delivery service, or (c) two business days after being delivered or
give by registered mail to the address set forth beneath the name of such
party below (or to such other address or telecopier number as such party
shall have specified in a written notice given to the other parties
hereto):
if to the Company:
Odwalla, Inc.
120 Stone Pine Road
Half Moon Bay, CA 94019
Attention: D. Stephen C. Williamson
Telecopier: (650) 712-5967
with a copy to:
Morrison & Foerster LLP
425 Market Street
San Francisco, California 94105
Attention: Robert Townsend, Esq.
Telecopier: (415) 268-7522
if to U.S. Equity Partners LP:
c/o Wasserstein Perella & Co., Inc.
1999 Avenue of the Stars, Suite 2950
Los Angeles, California 90067
Attention: Ellis B. Jones
Telecopier: (310) 286-7270
with copies to:
Skadden, Arps, et. al.
300 South Grand Avenue
Suite 3400
Los Angeles, California 90071
Attention: Brian J. McCarthy
Telecopier: (213) 687-5600
if to Catterton-Simon Partners:
Greenwich Office Park
Greenwich, Connecticut 06830
Attention: Craig Sakin
Telecopier: (203) 629-4903
with copies to:
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, NY 10178-0060
Attention: Philip H. Werner
Telecopier: (212) 309-6273
9.10 PUBLICITY AND USE OF CONFIDENTIAL INFORMATION.
(a) Notwithstanding anything to the contrary contained in any
agreement among the parties hereto, the Company shall have the right to
disclose the information provided to the Company by the Investors
(including the terms of this Agreement) through the use of printed offering
materials or otherwise or as otherwise required by applicable legal
requirements, in connection with the preparation of a proxy statement (the
"Proxy Statement") in connection with the solicitation by the Board of
Directors of the Company of the affirmative vote of a majority of the
outstanding Common Stock and Preferred Stock to approve the Merger and
related matters.
(b) The Company, on the one hand, and the Investors, on the other
hand, shall keep strictly confidential, and shall not use, or disclose to
any other Person, any non-public document or other information in the
Company's possession, on the one hand, and in each Investor's possession,
on the other hand, that relates directly or indirectly to the business of
the Company or any Affiliate of the Company, on the one hand, or the
Investor or any Affiliate of the Purchaser, on the other hand; provided,
however, that the Company and the Investors may disclose such non-public
information as required by any applicable law or rule to which the Company
or Investors are subject, including the Exchange Act and the rules of the
NASD.
(c) Except as set forth in Section 7.3, neither the Investors, on the
one hand, nor the Company, on the other hand, shall issue or disseminate
any press release or other publicity concerning any of the Transactions, or
permit any press release or other publicity concerning any of the
Transactions to be issued or otherwise disseminated on its behalf without
the prior written consent of the Investors, in the case of the Company, or
the Company, in the case of the Investors; provided, however, that the
Company and Investors may disclose or disseminate such information as
required by any applicable law or rule to which the Company or the
Investors are subject, including the Exchange Act and the rules of the
NASD.
9.11 COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each
of which shall be an original, but all of which together shall constitute
one instrument.
9.12 DELAYS OR OMISSIONS; WAIVERS.
(a) No failure on the part of any Person to exercise any power, right,
privilege or remedy under this Agreement, and no delay on the part of any
Person in exercising any power, right, privilege or remedy under this
Agreement, shall operate as a waiver of such power, right, privilege or
remedy; and no single or partial exercise or waiver of any such power,
right, privilege or remedy shall preclude any other or further exercise
thereof or of any other power, right, privilege or remedy.
(b) No Person shall be deemed to have waived any claim arising out of
this Agreement, or any power, right, privilege or remedy under this
Agreement, unless the waiver of such claim, power, right, privilege or
remedy is expressly set forth in a written instrument duly executed and
delivered on behalf of such Person; and any such waiver shall not be
applicable or have any effect except in the specific instance in which it
is given.
9.13 REMEDIES CUMULATIVE; SPECIFIC PERFORMANCE.
(a) All remedies, either under this Agreement or by law or otherwise
afforded to the parties hereto, shall be cumulative and not alternative.
(b) Each of the parties hereto agrees that if the conditions to such
party's obligation to consummate the Transactions have been satisfied as
set forth in Sections 2.1 or 2.2, as the case may be, and such party
nonetheless refuses to consummate the Transactions, then the other party
shall be entitled (in addition to any other remedy that may be available to
it) to (i) a decree or order of specific performance or mandamus to enforce
the observance and performance of such obligation to consummate the
Transactions, and (ii) an injunction restraining such non-performance.
9.14 HEADINGS.
The headings contained in this Agreement are for convenience of
reference only, shall not be deemed to be a part of this Agreement and
shall not be referred to in connection with the construction or
interpretation of this Agreement.
9.15 CONSTRUCTION.
(a) For purposes of this Agreement, whenever the context requires: the
singular number shall include the plural, and vice versa; the masculine
gender shall include the feminine and neuter genders; the feminine gender
shall include the masculine and neuter genders; and the neuter gender shall
include the masculine and feminine genders.
(b) The parties hereto agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall
not be applied in the construction or interpretation of this Agreement.
(c) As used in this Agreement, the words "include" and "including,"
and variations thereof, shall not be deemed to be terms of limitation, but
rather shall be deemed to be followed by the words "without limitation."
(d) Except as otherwise specified, all references in this Agreement to
"Sections," "Exhibits" and "Schedules" are intended to refer to Sections of
this Agreement and Exhibits and Schedules to this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this STOCK
PURCHASE AGREEMENT as of the date set forth in the first paragraph hereof.
COMPANY: ODWALLA, INC.,
a California corporation
By: \s\ D. Stephen C. Williamson
------------------------------------
Name: D. Stephen C. Williamson
Title: Chief Executive Officer
INVESTOR: U.S. EQUITY PARTNERS, L.P.,
a Delaware limited partnership
By: \s\ Ellis B. Jones
------------------------------------
Name: Ellis B. Jones
Title: Managing Director
INVESTOR: CATTERTON-SIMON PARTNERS III, L.P.,
a Delaware limited partnership
By: \s\ Craig Sakin
----------------------------------
Name: Craig Sakin
Title: Authorized Person
INDEX OF SCHEDULES AND EXHIBITS
Schedule I Schedule of Investors
Schedule II Disclosure Schedule
Exhibit A Rights Agreement
Exhibit B Form of Opinion of Company Counsel
STOCK PURCHASE AGREEMENT
SCHEDULE I
SCHEDULE OF INVESTORS
INVESTOR NUMBER OF SHARES OF STOCK PURCHASE PRICE
U.S. Equity Partners, L.P. 800,641 $5,000,000
Catterton-Simon 160,128 $1,000,000
Partners III, L.P.
STOCK PURCHASE AGREEMENT
SCHEDULE II
DISCLOSURE SCHEDULE
This document is the Company Disclosure Schedule to which reference is
made in the Stock Purchase Agreement dated as of February 11, 2000 (the
"Agreement"), by and among the Odwalla, Inc., a California corporation,
U.S. Equity Partners, L.P. and Catterton-Simon Partners III, LP (each, an
"Investor," and collectively, the "Investors").
Unless otherwise defined, any capitalized terms in this Disclosure
Schedule shall have the same meanings assigned to such terms in the
Agreement to which this schedule is attached. Nothing in this Disclosure
Schedule constitutes an admission of any liability or obligation of the
Company to any third party, nor an admission against the Company's
interests.
3.1 ORGANIZATION; GOOD STANDING; QUALIFICATION
No exceptions.
3.2 CAPITALIZATION
No exceptions.
3.3 SUBSIDIARIES
The Company filed a Certificate of Incorporation for Odwalla Canada,
Inc. with the Registrar of Companies, Province of British Columbia, Canada
on August 15, 1995. The wholly-owned subsidiary has been inactive since
1996.
3.4 AUTHORIZATION
No exceptions.
3.5 VALID ISSUANCE OF THE STOCK
No exceptions.
3.6 GOVERNMENTAL AND THIRD-PARTY CONSENTS
Although pursuant to that certain Revolving Credit Agreement, dated as
of September 3, 1999, by and between the Company and Imperial Bank (the
"Bank"), the Company has obtained the consent of the Bank to execute the
Merger Agreement and will be obtaining a second consent from the Bank prior
to or contemporaneous with the Merger Closing Date in connection with the
consummation of the Merger, the consummation of the Transactions by the
Company does not require any additional consent from the Bank.
3.7 SEC FILINGS, FINANCIAL STATEMENTS
No exceptions.
3.8 NO CHANGES
No exceptions.
3.9 COMPLIANCE WITH LAWS
No exceptions.
3.10 COMPLIANCE WITH OTHER INSTRUMENTS; NO CONFLICT
Please see Schedule 3.6.
3.11 LITIGATION
No exceptions.
3.12 TAX RETURNS AND PAYMENTS
1. Company was notified in late 1998 by the California Franchise Tax
Board (the "Tax Board") of an inquiry by the Tax Board regarding the Form
1099 filed by the Company in 1996. Company has not been contacted since
1998 regarding this inquiry.
2. The Tax Board began a Sales and Use Tax audit of Company on
November 8, 1999. Although the audit is ongoing, it is currently in its
preliminary stages and no findings have been made.
3.13 FINANCIAL ADVISOR
Pursuant to that certain Engagement Letter dated December 17, 1999
between the Company and W.R. Hambrecht & Co. LLC ("WRH"), Company is
obligated to pay WRH a fee of $250,000 promptly upon WRH substantially
completing the work necessary to render its opinion in connection with the
Merger. Additionally, Company will reimburse WRH for all reasonable travel
and other out-of-pocket expenses incurred in performing their services in
connection with the transaction, including reasonable fees and expenses of
legal counsel, such fees and expenses of counsel not to exceed $20,000.
3.14 RIGHTS OF REGISTRATION
No exceptions.
3.15 VOTING RIGHTS
No exceptions.
3.16 LABOR RELATIONS AND EMPLOYEE MATTERS
3.16(A) No exceptions.
3.16(B)
1. In November 1998, Company entered into a two-year consulting
agreement with Greg A. Steltenpohl, a member of Company's Board of
Directors, under which he will receive up to $300,000 during the term of
the agreement, in addition to certain debt forgiveness in accordance with
certain terms of the agreement.
2. Company is party to an Employment Agreement dated as of December 17,
1999 with D. Stephen C. Williamson.
3. Company is party to an Employment Agreement dated as of December 17,
1999 with James R. Steichen.
3.17 NO OTHER AGREEMENTS TO SELL ASSETS OR CAPITAL STOCK
No exceptions.
3.18 PRIVATE PLACEMENT
No exceptions.
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
<S> <C> <C>
1. Agreement To Sell And Purchase Stock.......................................................1
1.1 Sale and Purchase of Stock........................................................1
1.2 Payment of Purchase Price and Delivery of Certificates............................1
2. Closing Conditions.........................................................................2
2.1 Conditions Precedent to the Obligations of the Company............................2
2.2 Conditions Precedent to the Obligations of the Investors..........................3
3. Representations and Warranties of the Company..............................................4
3.1 Organization; Good Standing; Qualification........................................4
3.2 Capitalization....................................................................4
3.3 Subsidiaries......................................................................5
3.4 Authorization.....................................................................5
3.5 Valid Issuance of the Stock.......................................................6
3.6 Governmental and Third-Party Consents.............................................6
3.7 SEC Filings; Financial Statements.................................................6
3.8 No Changes........................................................................7
3.9 Compliance with Laws..............................................................7
3.10 Compliance with Other Instruments; No Conflict....................................7
3.11 Litigation........................................................................8
3.12 Tax Returns and Payments..........................................................8
3.13 Finders and Brokers; Fees.........................................................9
3.14 Rights of Registration............................................................9
3.15 Voting Rights.....................................................................9
3.16 Labor Relations and Employee Matters..............................................9
3.17 No Other Agreements to Sell the Assets or Capital Stock of the Company...........10
3.18 Private Placement................................................................10
4. Representations and Warranties of the Investors...........................................10
4.1 Authorization....................................................................10
4.2 Disclosure of Information........................................................10
4.3 Status...........................................................................10
4.4 Investment Intent; Certain Restrictions..........................................11
4.5 Restricted Securities............................................................11
5. Pre-Closing Covenants of the Company......................................................11
5.1 Notification; Updates to Company Disclosure Schedule.............................11
5.2 Best Efforts.....................................................................12
6. Pre-Closing Covenants of the Investors....................................................12
6.1 Best Efforts.....................................................................12
7. Other Matters.............................................................................12
7.1 Restrictive Legend...............................................................12
7.2 California Securities Laws.......................................................12
7.3 Public Disclosure................................................................13
8. Termination...............................................................................13
8.1 Termination Events...............................................................13
8.2 Termination Procedures...........................................................13
8.3 Effect of Termination............................................................14
8.4 Exclusivity of Termination Rights................................................14
9. Miscellaneous.............................................................................14
9.1 Further Assurances...............................................................14
9.2 Fees and Expenses................................................................14
9.3 Attorneys' Fees..................................................................14
9.4 Governing Law; Arbitration.......................................................14
9.5 Successors and Assigns...........................................................15
9.6 Entire Agreement.................................................................15
9.7 Separability.....................................................................15
9.8 Amendments.......................................................................15
9.9 Notices..........................................................................15
9.10 Publicity and Use of Confidential Information....................................17
9.11 Counterparts.....................................................................17
9.12 Delays or Omissions; Waivers.....................................................17
9.13 Remedies Cumulative; Specific Performance........................................18
9.14 Headings.........................................................................18
9.15 Construction.....................................................................18
</TABLE>
Exhibit No. 2
AMENDMENT NO. 1 TO
STOCK PURCHASE AGREEMENT
Reference is made to that certain Stock Purchase Agreement, dated
as of February 11, 2000 (the "Agreement"), by and among Odwalla, Inc., a
California corporation (the "Company"), and U.S. Equity Partners, L.P., a
Delaware limited partnership, and Catterton-Simon Partners, L.P., a
Delaware limited partnership (each, an "Investor" and collectively, the
"Investors").
RECITAL
A. Pursuant to the terms and conditions of the Agreement, the
Company has agreed to issue to the Investors, and the
Investors have collectively agreed to purchase from the
Company, nine hundred sixty thousand seven hundred sixty
nine (960,769) shares of the Common Stock of the Company.
B. Pursuant to Section 9.8 of the Agreement, the Agreement may
only be amended with the consent of the Company and the
Investors, and it is the intent of the Company and the
Investors to amend the Agreement as set forth in this
Amendment No. 1.
AGREEMENT
The Company and the Investors, intending to be legally bound,
hereby amend the Agreement as follows:
1. SECTION 2.2 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE INVESTORS.
Section 2.2(g) of the Agreement shall be amended and restated in
its entirety to read as follows:
all of the material terms and conditions contained in the
Merger Agreement as of the date of this Agreement shall
have been complied with or satisfied, as the case may be,
by the applicable party thereto; except, with the consent
of each Investor, as the case may be (such consent not to
be unreasonably withheld), to the extent (i) any change
in the material terms and conditions contained in the
Merger Agreement as of the date of this Agreement benefit
the Company, or (ii) the waiver or non-satisfaction of a
condition contained in the Merger Agreement is for the
benefit of the Company.
2. SECTION 9.2 FEES AND EXPENSES.
Section 9.2 of the Agreement shall be amended and restated in its
entirety to read as follows:
The Company shall bear and pay the reasonable costs and
expenses with respect to the negotiation, execution and
delivery of this Agreement and in connection with the
Transactions.
3. SECTION 9.9 NOTICES.
Section 9.9 of the Agreement shall be amended to include the
following:
if to BancBoston Investments, Inc.:
BancBoston Investments Inc.
175 Federal Street, 10th Floor
Boston, Massachusetts 02110
Attention: Mark H. DeBlois
Telecopier: (617) 434-1153
with a copy to:
Bingham Dana LLP
150 Federal Street
Boston, Massachusetts 02110
Attention: Robert M. Wolf, Esq.
Telecopier: (617) 951-8736
[The remainder of this page intentionally left blank]
4. SCHEDULE 1 SCHEDULE OF INVESTORS
Schedule 1 shall be amended and restated in its entirety to read
as follows:
<TABLE>
<CAPTION>
INVESTOR NUMBER OF SHARES OF STOCK PURCHASE PRICE
<S> <C> <C>
U.S. Equity Partners, L.P. 601,667 $3,757,410
U.S. Equity Partners (Offshore), 162,945 $1,017,590
L.P.
Catterton Simon Partners, L.P. 160,128 $1,000,000
BancBoston Investments, Inc. 36,029 $225,000
TOTAL: 960,769 $6,000,000
5. GENERAL.
By executing this Amendment No. 1, each of U.S. Equity Partners
(Offshore), L.P., a Cayman Islands limited partnership, and BancBoston
Investments, Inc., a Massachusetts corporation, agree to become a party to
and be bound by the terms of the Agreement, as amended by this Amendment
No. 1.
The terms of this Amendment No. 1 shall prevail over any
conflicting provisions of the Agreement, but both instruments shall
otherwise be constituted and interpreted as a single integrated agreement.
The Agreement remains in full force and effect, in accordance with its
terms as amended hereby.
This Amendment No. 1 may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
AMENDMENT NO. 1 as of April 25, 2000.
COMPANY: ODWALLA, INC.,
a California corporation
By: /s/ D. Stephen C. Williams
----------------------------------------
Name: D. Stephen C. Williamson
Title: Chief Executive Officer
INVESTOR: U.S. EQUITY PARTNERS, L.P.,
a Delaware limited partnership
By: /s/ Ellis B. Jones
---------------------------------------
Name: Ellis B. Jones
Title: Managing Director
INVESTOR: U.S. EQUITY PARTNERS (OFFSHORE), L.P.,
a Cayman Islands limited partnership
By: /s/ Ellis B. Jones
---------------------------------------
Name: Ellis B. Jones
Title: Managing Director
INVESTOR: CATTERTON-SIMON PARTNERS III, L.P.,
a Delaware limited partnership
By: /s/ Craig Sakin
---------------------------------------
Name: Craig Sakin
Title: Authorized Person
INVESTOR BANCBOSTON INVESTMENTS, INC.,
a Massachusetts corporation
By: /s/ R. L. Clark, Jr.
---------------------------------------
Name: R. L. Clark, Jr.
Title: Director
</TABLE>
Exhibit No. 3
ODWALLA, INC.
SHAREHOLDERS' RIGHTS AGREEMENT
THIS SHAREHOLDERS' RIGHTS AGREEMENT (this "Agreement") is entered
into as of May 2, 2000, by and among Odwalla, Inc., a California
corporation (the "Company"), Samantha Investors, LLC, a Massachusetts
limited liability company, and those shareholders of the Company and other
Persons listed on Schedule 1 hereto (together with these permitted
successors and assigns hereunder, collectively the "Shareholders").
RECITALS
A. The Company previously entered into that certain Investors'
Rights Agreement, dated as of January 29, 1999, with
Catterton-Simon Partners III, L.P. ("Catterton") in
connection with the acquisition by Catterton of certain
shares of Series A Preferred Stock of the Company (the
"Existing Rights Agreement"). On or before the date hereof,
Catterton has converted such shares of Series A Preferred
Stock together with those additional shares of Series A
Preferred Stock Catterton received from the Company on June
30, 1999 and December 31, 1999 as a stock dividend into
Common Stock of the Company. The Company and Catterton wish
to have this Agreement supersede and terminate the Existing
Rights Agreement.
B. The Company, Orange Acquisition Sub, a Maine corporation
("Merger Sub"), and Fresh Samantha, Inc., a Maine
corporation ("Samantha"), have entered into that certain
Agreement and Plan of Merger, dated as of February 2, 2000
(the "Merger Agreement"), to effectuate the merger (the
"Merger") of Merger Sub with and into Samantha with Samantha
as the surviving corporation and wholly-owned subsidiary of
the Company.
C. Upon consummation of the Merger, the Shareholders identified
as "Samantha Shareholders" on Schedule 1 attached hereto
will exchange certificates formerly representing shares of
the capital stock of Samantha for shares of the Common Stock
of the Company.
D. Concurrent with the Closing of the Merger, the Company
expects to consummate a transaction pursuant to which it
will issue and sell up to Six Million Dollars ($6,000,000)
of Common Stock to WP and Catterton.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement, the parties mutually agree as follows:
1. GENERAL
1.1 DEFINITIONS.
In addition to those terms otherwise defined herein, as used in
this Agreement, the following terms shall have the following respective
meanings:
"ACQUISITION PROPOSAL" shall mean (a) a bona fide, written
proposal, which proposal includes all material terms of a proposed
transaction, received by the Board of Directors of the Company from any
person or Group (as such term is defined in Section 13(d)(3) of the
Exchange Act) proposing to enter into a transaction with the Company or the
Company's shareholders which, if effected, result in such person or group
acquiring more than 50% of the voting securities of the Company, (b) a
tender offer or exchange offer seeking to acquire 50% or more of the
outstanding shares of voting securities of the Company or (c) a public
announcement of the commencement of a bona fide proxy or consent
solicitation subject to Section 14 of the Exchange Act to remove a majority
of the Board of Directors.
"AFFILIATE" shall mean a person or entity that directly or
indirectly, through one or more intermediaries, controls or is controlled
by, or is under common control with, the person specified.
"BAIN SHAREHOLDERS" shall mean, collectively, Bain Capital Fund
VI, L.P. and its Affiliates.
"CLOSING" shall have the meaning given such term in the Merger
Agreement.
"COMMON STOCK" shall mean the common stock of the Company.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended and any successor rule or regulation thereto, and in the case of
any referenced section of such rule, any successor section thereto,
collectively and as from time to time amended and in effect.
"HOLDER" means any person owning or having the right to acquire
Registrable Securities or any assignee thereof.
"LLC" means Samantha Investors, LLC, a Massachusetts limited
liability company.
"MAJORITY PARTICIPATING HOLDERS" means, with respect to any
registration of Registrable Securities, the holder or holders at the
relevant time of at least a majority of the Registrable Securities to be
included in the registration statement in question.
"NASD" shall mean the National Association of Securities Dealers,
Inc. (or its successor).
"PERMITTED TRANSFEREE" shall mean, as to any Shareholder, (a) any
Affiliate, partner, retired partner, member, retired member, or other
holder of equity interests of such Shareholder and (b) any family member of
such Shareholder or any domestic partner of such Shareholder or any trust,
partnership, limited liability company, custodianship or fiduciary account
for the benefit of a Shareholder and/or members of his or her family or his
or her domestic partner.
"REGISTER," "REGISTERED," and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of
effectiveness of such registration statement or document.
"REGISTRABLE SECURITIES" means (i) the Stock, (ii) any Common
Stock issued as (or issuable upon the conversion or exercise of any
preferred stock warrant, right or other security which is issued as) a
dividend or other distribution with respect to, or in exchange for or in
replacement of, or pursuant to a stock split, combination of shares,
recapitalization, merger, consolidation, reorganization or otherwise with
respect to the Stock, and (iii) any Common Stock issued upon exercise of
the Warrant. Notwithstanding the foregoing, Registrable Securities shall
not include any securities either sold by a person to the public pursuant
to a registration statement or Rule 144 under the Securities Act or sold in
a private transaction in which the transferor's rights under Section 2 of
this Agreement are not assigned.
The number of shares of "REGISTRABLE SECURITIES THEN OUTSTANDING"
shall be determined by calculating the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities, including the
Warrant, which are, Registrable Securities.
"REGISTRATION EXPENSES" shall mean all expenses incurred by the
Company in complying with Section 2.1 hereof, including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, reasonable fees and disbursements
of a single special counsel for the Shareholders, blue sky fees and
expenses and the expense of any special audits incident to or required by
any such registration.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, and any successor rule or regulation thereto, and in the case of
any referenced section of such rule, any successor section thereto,
collectively and as from time to time amended and in effect.
"STOCK" shall refer to the shares of Common Stock held by the
Shareholders.
"TAG ALONG SELLER" shall have the meaning given such term in
Section 3.6 of this Agreement.
"WARRANT" shall refer to that warrant held by Catterton-Simon
Partners III, L.P. to purchase shares of Common Stock dated as of January
29, 1999.
"WP" shall mean U.S. Equity Partners, L.P., a Delaware limited
partnership, U.S. Equity Partners (Offshore), L.P., a Cayman Islands
limited partnership, and BancBoston Investments, Inc., a Massachusetts
corporation.
Any capitalized terms not defined herein shall have the meanings
given them in the Merger Agreement.
2. REGISTRATION
2.1 DEMAND REGISTRATIONS.
(A) REGISTRATION ON FORM S-3. From time to time after the first anniversary
of the date of this Agreement, a Holder or Holders may request in writing
that the Company effect the registration on Form S-3 of Registrable Shares,
provided that the gross proceeds of the offering to which such request
applies are expected to be at least $1,000,000. If the Holder or Holders
initiating such registration intend to distribute the Registrable
Securities in an underwritten offering, they shall so state in their
request. Promptly after receipt of such notice, the Company will give
written notice of such requested registration to all other Holders of
Registrable Securities. The Company will then use its commercially
reasonable best efforts to expeditiously effect the registration under the
Securities Act of the Registrable Securities which the Company has been
requested to register by such Holders and all other Registrable Securities
which the Company has been requested to register by other Holders of
Registrable Securities by notice delivered to the Company within twenty
(20) days after the giving of such notice by the Company.
(B) REGISTRATION ON FORM S-1 OR S-2. From time to time after the first
anniversary of the date of this Agreement, when the Company is ineligible
to file a Registration Statement on Form S-3, one or more Holders of
Registered Securities may request in writing that the Company effect the
registration under the Securities Act of Registrable Securities; provided
that the gross proceeds of the offering to which such request applies are
expected to be at least $5 million. If the Holder or Holders initiating
such registration intend to distribute the Registrable Securities in an
underwritten offering, they shall so state in their request. Promptly after
receipt of such notice, the Company will give written notice of such
requested registration and related information to all other Holders of
Registrable Securities. The Company will then use its commercially
reasonable best efforts to expeditiously effect the registration under the
Securities Act of the Registrable Securities which the Company has been
requested to register by such Holders and all other Registrable Securities
which the Company has been requested to register by other Holders of
Registrable Securities by notice delivered to the Company within twenty
(20) days after the giving of such notice by the Company.
(C) FORM. Each registration requested pursuant to Section 2.1(b) shall be
effected by the filing of a registration statement on Form S-1 or S-2 (or
the successor form of either, unless the use of a different form has been
agreed to in writing by the Company and the Majority Participating
Holders). No registration of Registrable Securities under this Section 2.1
which shall not have become and remained effective for the period set forth
in Section 2.5(a), shall be deemed to be a registration for any purpose of
this Section 2.1. In the case of the filing of a registration statement on
Form S-3 pursuant to this Section 2.1, the Company shall include such
additional disclosure in such registration statement and the prospectus
used in connection with such registration statement as reasonably requested
by the Majority Participating Holders or, in the case of an underwritten
offering, by the managing underwriter(s), in order to successfully market
the Common Stock offered in such registration statement.
(D) LIMITATION OF REGISTRATION OBLIGATIONS. Notwithstanding the foregoing
provisions of this Section 2.1, the Company shall not be obligated to
effect any registration, qualification or compliance (i) more than twice
pursuant to Section 2.1(b), (ii) if the Company shall furnish to the
Shareholders a certificate signed by the Chairman of the Board or the Chief
Executive Officer of the Company stating that in the good-faith judgment of
the Board of Directors of the Company, it would be seriously detrimental to
the Company and its shareholders for such registration to be effected at
such time, in which event the Company shall have the right to defer the
filing of the registration statement for a period of not more than ninety
(90) days after receipt of the request of the Holder or Holders under this
Section 2.1, provided that the Company may not delay the filing of a
registration statement pursuant to this clause (ii) more than once in any
twelve (12) month period; (iii) within one hundred eighty (180) days of the
effective date of a prior registration statement in respect of an
underwritten offering to which the provisions of Section 2.2(a) applied in
connection with which all Holders were able to sell 75% of the number of
Registrable Securities they had requested to be included in such prior
registration statement; or (iv) more than twice in a single year.
(E) FURNISHING INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 2.1
that the Shareholders shall furnish to the Company such information
regarding themselves, the Registrable Securities held by them and the
intended method of disposition of such securities as shall be reasonably
requested by the Company as required to effect the registration of their
Registrable Securities.
2.2 COMPANY REGISTRATION.
(A) GENERAL. The Company shall notify the Shareholders in writing at least
thirty (30) days prior to the filing of any registration statement under
the Securities Act for purposes of offering securities of the Company
(excluding registration statements relating solely to employee benefit
plans or solely with respect to the issuance by the Company of securities
pursuant to corporate reorganizations or other transactions under Rule 145
under the Securities Act), either for its own account or for the account of
a security holder or security holders, and the Company will afford each
Shareholder an opportunity to include in such registration statement all or
part of such Registrable Securities held by such Shareholder. Such notice
by the Company shall describe such securities and specify the form, manner
and other relevant aspects of such proposed registration. Each Shareholder
desiring to include in any such registration statement all or any part of
the Registrable Securities held by it shall, within twenty (20) days after
the above-described notice from the Company, so notify the Company in
writing. Such notice shall state the number of Registrable Securities such
Shareholder desires to have included in such registration statement and the
intended method of disposition of the Registrable Securities by such
Shareholder. If a Shareholder decides not to include all of its Registrable
Securities in any registration statement thereafter filed by the Company,
such Shareholder shall nevertheless continue to have the right to include
any Registrable Securities in any subsequent registration statement or
registration statements as may be filed by the Company with respect to
offerings of its securities, all upon the terms and conditions set forth
herein. No registration of Registrable Securities effected under this
Section 2.2 shall relieve the Company of any of its obligations to effect
registrations of Registrable Securities pursuant to Section 2.1 hereof.
(B) RIGHT TO TERMINATE REGISTRATION. The Company shall have the right to
terminate or withdraw any registration initiated by it under this Section
2.2 prior to the effectiveness of such registration whether or not any
Shareholder has elected to include securities in such registration. The
Registration Expenses of such withdrawn registration shall be borne by the
Company in accordance with Section 2.4 hereof.
(C) NO OBLIGATION. Nothing in this Section 2.2 shall obligate the Company
to file a registration statement.
2.3 ADDITIONAL PROCEDURES IN CONNECTION WITH UNDERWRITTEN OFFERINGS;
LOCKUPS; CUTBACKS.
(A) REGISTRATIONS PURSUANT TO SECTION 2.1; CUTBACK. In the case of a
registration pursuant to Section 2.1 hereof, whenever the Majority
Participating Holders shall request that such registration shall be
effected pursuant to an underwritten offering, such registration shall be
so effected, and only securities which are to be distributed by the
underwriters may be included in such registration. Such underwriters shall
be designated by the following method: (i) the Company will provide a list
to the Majority Participating Holders of six (6) underwriters, each of
which shall be on the list of the top twenty (20) equity underwriters in
the United States, (ii) the Majority Participating Holders may then remove
no more than three (3) underwriters from such list, and (iii) the Company
may then designate the underwriters for the underwritten offering pursuant
to Section 2.1 from those remaining underwriters on such list. If requested
by such underwriters, the Company and each participating seller will enter
into an underwriting agreement with such underwriters for such offering
containing such representations and warranties by the Company and such
other terms and provisions applicable to the Company as are customarily
contained in underwriting agreements with respect to secondary
distributions, including, without limitation, indemnity and contribution.
In each such registration pursuant to Section 2.1, each Shareholder agrees
that without the consent of the managing underwriter, for a period from
fifteen (15) days prior to the effective date of the registration statement
until ninety (90) days after such effective date, such Shareholder will not
directly or indirectly sell, offer to sell, grant any option for the sale
of, or otherwise dispose of any common equity or securities convertible
into common equity except (x) for Registered Securities sold in such
registered offering and (y) transfers to Permitted Transferees of such
Shareholder, each of whom shall have furnished to the Company and the
managing underwriter their written consent to be bound by this Agreement,
including this Section 2.3.
If the managing underwriter shall advise the Shareholders
initially requesting registration that the total amount of securities to be
included in a registration pursuant to Section 2.1 should be limited due to
market conditions or otherwise, the securities so included shall be reduced
as follows: (a) all securities which shareholders other than the
Shareholders seek to include in the offering shall be excluded from the
offering to the extent limitation on the number of shares included in the
underwriting is required, (b) if further limitation on the number of shares
to be included in the underwriting is required, the number of Registrable
Securities held by Shareholders that may be included in the underwriting
shall be reduced pro rata among the selling Shareholders in accordance with
the number of shares of Registrable Securities held by each such
Shareholder.
(B) REGISTRATIONS PURSUANT TO SECTION 2.2; CUTBACK. In connection with the
exercise of any registration rights granted to Shareholders pursuant to
Section 2.2 hereof, if the registration is to be effected by means of an
underwritten offering, the Company shall not be required to include any of
the Shareholders' securities in such underwriting unless they agree to be
bound by the terms of the underwriting as agreed upon between the Company
and the underwriters selected by it (or by other persons entitled to select
the underwriters), and then only in such quantity as the underwriters
determine in their sole discretion will not jeopardize the success of the
offering by the Company.
If the managing underwriter for the offering shall advise
the Company that the total amount of securities, including Registrable
Securities, requested by shareholders to be included in such offering
exceeds the amount of securities to be sold other than by the Company that
can be successfully offered, then the Company shall be required to include
in the offering only that number of such securities, including Registrable
Securities, which the managing underwriter believes will not jeopardize the
success of the offering. In such case, the securities so included shall be
reduced as follows: (a) all securities which shareholders other than the
Company and the Shareholders seek to include in the offering shall be
excluded from the offering to the extent limitation on the number of shares
included in the underwriting is required, (b) if further limitation on the
number of shares to be included in the underwriting is required, the number
of Registrable Securities held by Shareholders that may be included in the
underwriting shall be reduced pro rata among the selling Shareholders in
accordance with the total shares proposed to be included by each
Shareholder in the underwriting.
(C) SELLERS PARTY TO UNDERWRITING AGREEMENT. The Company shall request and
make commercially reasonable good-faith efforts to persuade the
underwriter(s) not to require any Shareholder to make any representations
and warranties to any underwriter in a registration effected pursuant to
Sections 2.1 or 2.2 other than the customary representations, warranties
and agreements relating to such Shareholder's title to Registrable
Securities and authority to enter into the underwriting agreement.
2.4 EXPENSES OF REGISTRATION.
(A) All fees and expenses incident to the Company's performance of or
compliance with this Agreement shall be paid by the Company, including
without limitation: (i) all registration and filing fees (including,
without limitation, with respect to filings required to be made with the
NASD); (ii) fees and expenses of compliance with securities or blue sky
laws (including, without limitation, fees and disbursements of counsel for
the underwriters or selling holder in connection with blue sky
qualifications of the Registrable Securities and determination of their
eligibility for investment under the laws of such jurisdictions as the
managing underwriters or holders of a majority of the Registrable
Securities being sold may designate); (iii) printing (including, without
limitation, expenses of printing or engraving certificates for the
Registrable Securities in a form eligible for deposit with Depository Trust
Company and of printing prospectuses), messenger, telephone and delivery
expenses; (iv) reasonable fees and disbursements of counsel for the
Company, underwriters and for the selling holders of the Registrable
Securities; (v) fees and disbursements of all independent certified public
accountants of the Company (including, without limitation, the expenses of
any special audit and "cold comfort" letters required by or incident to
such performance); (vi) fees and disbursements of underwriters as
reasonably approved by the Company (excluding (x) discounts, commissions or
fees of underwriters, selling brokers, dealer managers or similar
securities industry professionals relating to the distribution of the
Registrable Securities or (y) legal expenses of any Person other than the
Company, the underwriters and the selling holders); (vii) securities acts
liability insurance if the Company so desires, and in such event, coverage
for the underwriters or selling holders of the Registrable Securities
should they so request; (viii) fees and expenses associated with other
Persons retained by the Company, and (ix) fees and expenses associated with
any NASD filing required to be made in connection with the Registration
Statement, including, if applicable, the fees and expenses of any
"qualified independent underwriter" (and its counsel) that is required to
be retained in accordance with the rules and regulations of the NASD (all
such expenses being herein called "Registration Expenses").
The Company will, in any event, pay its internal expenses
(including, without limitation, all salaries and expenses of its officers
and employees performing legal or accounting duties), the expenses of any
annual audit, the fees and expenses incurred in connection with the listing
of the securities to be registered on each securities exchange on which
similar securities issued by the Company are then listed, rating agency
fees and the fees and expenses of any person, including special experts,
retained by the Company.
(B) In connection with each registration statement subject to this
Agreement, the Company will reimburse the holders of Registrable Securities
being registered pursuant to such registration statement for the reasonable
fees and disbursements of not more than one counsel (or more than one
counsel if a conflict exists among such selling holders in the exercise of
the reasonable judgment of counsel for the selling holders and counsel for
the Company) chosen by the Majority Participating Holders.
2.5 OBLIGATIONS OF THE COMPANY.
Whenever required to effect the registration of any Registrable
Securities, the Company shall, as expeditiously as reasonably possible:
(A) Prepare and file promptly (and in any event within ninety (90) days in
the case of a Form S-1, and thirty (30) days in the case of a Form S-3,
from receipt by the Company of the written request of the requesting
Shareholders) with the SEC a registration statement with respect to such
Registrable Securities and use all commercially reasonable best efforts to
cause such registration statement to become effective as expeditiously as
possible, and, upon the request of the holders of a majority of the
Registrable Securities registered thereunder, keep such registration
statement effective for up to one hundred twenty (120) days or, if earlier,
until the Shareholders have completed the distribution related thereto.
(B) Prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of
the Securities Act with respect to the disposition of all securities
covered by such registration statement.
(C) Furnish to the Shareholders such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of
the Securities Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Securities owned by
the Shareholders.
(D) Use its commercially reasonable best efforts to register and qualify
the securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by the Shareholders, provided that the Company shall not be
required in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such
states or jurisdictions.
(E) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter(s) of such offering. Each
Shareholder participating in such underwriting shall also enter into and
perform its obligations under such an agreement subject to Section 2.3(c)
hereof.
(F) Use its commercially reasonable best efforts to cooperate, and to cause
its key executives to cooperate, with the Shareholder and, in the case of
an underwritten offering, the managing underwriter, in connection with the
disposition of the Registrable Securities owned by the Shareholders,
including without limitation causing key executives of the Company to
participate under the direction of the managing underwriter in a "road
show" scheduled by the managing underwriter.
(G) Without limiting the obligations of the Company under clause (b) above,
notify each holder of Registrable Securities covered by such registration
statement at any time when a prospectus relating thereto is required to be
delivered under the Securities Act of the happening of any event as a
result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of the circumstances
then existing.
(H) Furnish, at the request of any Shareholder participating in the
registration, on the date that such Registrable Securities are delivered to
the underwriters for sale, if such securities are being sold through
underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to
such securities becomes effective, (i) an opinion, dated as of such date,
of the counsel representing the Company for the purposes of such
registration, in such form and substance as is customarily given to
underwriters in an underwritten public offering and reasonably satisfactory
to the Shareholder requesting registration, addressed to the underwriters,
if any, and to the Shareholder requesting registration of Registrable
Securities, and (ii) a letter dated as of such date, from the independent
certified public accountants of the Company, in such form and substance as
is customarily given by independent certified public accountants to
underwriters in an underwritten public offering and reasonably satisfactory
to such Shareholder requesting registration, addressed to the underwriters,
if any, and if permitted by applicable accounting standards, to the
Shareholders requesting registration of Registrable Securities.
2.6 TERMINATION OF REGISTRATION RIGHTS.
All registration rights granted pursuant to Section 2.1 shall
terminate and be of no further force and effect with respect to a
Shareholder as of the date when all Registrable Securities held by and
issuable to such Shareholder may be sold under Rule 144 under the
Securities Act during any ninety (90) day period.
2.7 COMPANY LOCKUP.
In the case of an underwritten offering under Section 2.1 hereof,
the Company shall refrain, without the consent of the managing underwriter,
for a period from fifteen (15) days before the effective date of the
registration sale until ninety (90) days after such effective date, from
directly or indirectly selling, offering to sell, granting any option for
the sale of, or otherwise disposing of any common equity or securities
convertible into common equity (excluding sales, offers and grants relating
solely to employee benefit plans or solely with respect to the issuance by
the Company of securities pursuant to corporate reorganizations or other
transactions under Rule 145 under the Securities Act).
2.8 INDEMNIFICATION.
In the event any Registrable Securities are included in a
registration statement under Section 2.1 or 2.2:
(A) To the extent permitted by law, the Company will, indemnify and hold
harmless each Shareholder, the partners, officers, directors and legal
counsel of each Shareholder, any underwriter (as defined in the Securities
Act) for such Shareholder and each person, if any, who controls such
Shareholder or underwriter within the meaning of the Securities Act or the
Exchange Act (each a "Covered Person"), against any losses, claims,
damages, or liabilities (joint or several) to which they may become subject
under the Securities Act, the Exchange Act or other federal or state law,
common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any of the following statements, omissions or violations (collectively a
"Violation") by the Company: (i) any untrue statement or alleged untrue
statement of a material fact contained in or incorporated by reference in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, or
any document incorporated by reference therein, or any other such
disclosure document (including without limitation reports and other
documents filed under the Exchange Act to the extent incorporated by
reference therein), (ii) the omission or alleged omission to state therein
a material fact required to be stated therein, or necessary to make the
statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
or federal law, rule or regulation, including without limitation, any rule
or regulation promulgated under the Securities Act, the Exchange Act or any
state securities law in connection with the offering covered by such
registration statement; and the Company will reimburse each such Covered
Person for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement
contained in this Section 2.8(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company, which consent
shall not be unreasonably withheld, nor shall the Company be liable in any
such case for any such loss, claim, damage, liability or action to the
extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished by any
Covered Person expressly for use in connection with such registration by
such Covered Person.
(B) To the extent permitted by law, each Shareholder will severally and not
jointly, if Registrable Securities held by such Shareholder are included in
the securities as to which such registration, qualification or compliance
is being effected, indemnify and hold harmless the Company, each of its
directors, its officers, and legal counsel and each person, if any, who
controls the Company within the meaning of the Securities Act or the
Exchange Act, any underwriter and any other Shareholder selling securities
under such registration statement or any of such other Shareholder's
partners, directors or officers or any person who controls such
Shareholder, against any losses, claims, damages or liabilities (joint or
several) to which the Company or any such director, officer, legal counsel,
controlling person, underwriter or other such Shareholder, or partner,
director, officer or controlling person of such other Shareholder may
become subject under the Securities Act, the Exchange Act or other federal
or state law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereto) arise out of or are based upon any Violation,
in each case to the extent (and only to the extent) that such Violation
occurs in reliance upon and in conformity with written information
furnished by such Shareholder under an instrument duly executed by such
Shareholder and stated to be specifically for use in connection with such
registration; and each such Shareholder will reimburse any legal or other
expenses reasonably incurred by the Company or any such director, officer,
legal counsel, controlling person, underwriter or other Shareholder, or
partner, officer, director or controlling person of such other Shareholder
in connection with investigating or defending any such loss, claim, damage,
liability or action if it is judicially determined that there was such a
Violation; provided, however, that the indemnity agreement contained in
this Section 2.8(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is
effected without the consent of the Shareholder, which consent shall not be
unreasonably withheld; provided, further, that no Shareholder shall provide
an indemnity under this Section 2.8 for an amount in excess of such
Shareholder's net proceeds received in such offering.
(C) Promptly after receipt by an indemnified party under this Section 2.8
of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to
be made against any indemnifying party under this Section 2.8, deliver to
the indemnifying party a written notice of the commencement thereof, and
the indemnifying party shall have the right to participate therein, and, to
the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with
counsel mutually satisfactory to the parties; provided, however, that an
indemnified party shall have the right to retain its own counsel, with the
fees and expenses to be paid by the indemnifying party, if representation
of such indemnified party by the counsel retained by the indemnifying party
would be inappropriate due to actual or potential differing interests
between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, to the extent materially prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 2.8, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than under
this Section 2.8.
(D) If the indemnification provided for in this Section 2.8 is held by a
court of competent jurisdiction to be unavailable to an indemnified party
with respect to any losses, claims, damages or liabilities referred to
herein, the indemnifying party, in lieu of indemnifying such indemnified
party thereunder, shall to the extent permitted by applicable law
contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the
one hand and of the indemnified party on the other in connection with the
Violation(s) that resulted in such loss, claim, damage or liability, as
well as any other relevant equitable considerations. The relative fault of
the indemnifying party and of the indemnified party shall be determined by
a court of law by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the indemnifying party or
by the indemnified party and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission; provided, that in no event shall any contribution by a
Shareholder hereunder exceed the net proceeds from the offering received by
such Shareholder.
(E) The obligations of the Company and Shareholders under this Section 2.8
shall survive completion of any offering of Registrable Securities in a
registration statement. No indemnifying party, in the defense of any such
claim or litigation, shall, except with the consent of each indemnified
party, consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all
liability in respect of such claim or litigation.
2.9 ASSIGNMENT OF REGISTRATION RIGHTS.
The rights to cause the Company to register Registrable Securities
pursuant to this Section 2 may be assigned by a Shareholder to a transferee
or assignee of Registrable Securities which (a) is a Permitted Transferee
or (b) acquires at least twenty-five percent (25%) of the Registrable
Securities held by such Shareholder as of the date of this Agreement (as
adjusted for stock splits and combinations etc.); provided, however, (i)
the transferor shall, within a reasonable time after such transfer, furnish
to the Company written notice of the name and address of such transferee or
assignee and the securities with respect to which such registration rights
are being assigned and (ii) such transferee shall agree to be subject to
all rights and obligations of such transferor Shareholder set forth in this
Agreement. Notwithstanding the foregoing, the right to cause the Company to
register Registrable Securities pursuant to this Section 2 shall be deemed
to have been transferred by the LLC to any of its Members in connection
with the transfer by the LLC of Registrable Securities to such Member(s);
provided that, such Members are signatories to this Agreement or are
Permitted Transferees of such signatories.
2.10 PARTICIPATION BY SHAREHOLDERS.
In connection with the preparation and filing of each registration
statement registering Registrable Securities under the Securities Act, and
before filing any such registration statement or any other document in
connection therewith, the Company shall give the participating Holders and
their underwriters, if any, and their respective counsel and accountants,
the opportunity to participate in the preparation of such registration
statement, each prospectus included therein or filed with the SEC, each
amendment thereof or supplement thereto and any related underwriting
agreement or other document to be filed, and give each of the
aforementioned Persons such access to its books and records and such
opportunities to discuss the business of the Company with its officers and
the independent public accountants who have certified its financial
statements as shall be necessary, in the opinion of such Holders,
underwriters, counsel or accountants, to conduct a reasonable investigation
within the meaning of the Securities Act.
2.11 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934.
With a view to making available to Holders the benefits of Rule
144 promulgated under the Securities Act and any other rule or regulation
of the SEC that may at any time permit a Holder to sell Securities of the
Company to the public without registration or pursuant to a registration on
Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144 at all times for so long as the
Company remains subject to the periodic reporting requirements under
Section 13 or 15(d) of the Exchange Act;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
(c) furnish to any Holder, so long as the Holder owns any
Registrable Securities, promptly upon written request (i) a written
statement by the Company that it has complied with the reporting
requirements of SEC Rule 144, the Act and the 1934 Act, or that it
qualifies as a registrant whose securities may be resold pursuant to Form
S-3, and (ii) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed.
3. RIGHT OF FIRST OFFER; CO-SALE RIGHTS
Subject to Sections 3.7 and 3.8, the Company is hereby granted a
right of first offer with respect to any proposed disposition of shares of
Stock owned by Catterton, the Bain Shareholders, and WP, as of the date of
this Agreement, and to any shares of Stock transferred to their Permitted
Transferees. Any transfer or disposition of stock not in accordance with
the provisions of this Section 3 may at the option of the Company be
treated as void and not reflected on the stock transfer records of the
Company.
3.1 NOTICE OF INTENDED DISPOSITION.
In the event that Catterton, the Bain Shareholders, WP or any of
their Permitted Transferees are contemplating the transfer of shares of
Stock owned by such Shareholder as of the date of this Agreement which
transfer is not exempt from the provisions of this Section 3 under the
terms of Section 3.7 (the "Transferring Shareholder," and the shares
subject to such offer to be hereafter called the "Target Shares"), the
Transferring Shareholder shall promptly deliver to the Secretary of the
Company and to Catterton, the Bain Shareholders, WP and any of their
Permitted Transferees, as the case may be, written notice stating that such
Shareholder is contemplating such a transfer and setting forth the number
of Target Shares and the purchase price proposed by the Transferring
Shareholder (the "Disposition Notice").
3.2 EXERCISE OF RIGHT BY THE COMPANY.
The Company shall, for a period of forty-five (45) business days
from receipt of the Disposition Notice (the "Company Exercise Period"),
have the right to make an offer to purchase all of the Target Shares at the
purchase price set forth in the Disposition Notice by giving the
Transferring Shareholder a written binding offer to purchase the Target
Shares (the "Company Offer Notice"), which offer, by its terms, shall
remain open for thirty (30) days. At the same time it gives such notice to
the Transferring Shareholder, the Company shall provide a copy of the
Company Offer Notice to Catterton, the Bain Shareholders, WP and any of
their Permitted Transferees, as the case may be. If the Company gives the
Transferring Shareholder a Company Offer Notice before expiration of the
Company Exercise Period, then, for a period of thirty (30) days following
the date on which the Company Offer Notice is given, the Transferring
Shareholder may not transfer the Target Shares except to the Company or to
a Permitted Transferee pursuant to the terms of this Agreement. If, at the
end of the thirtieth (30th) day following the effective date of such
Company Offer Notice, the Transferring Shareholder shall not have
transferred the Target Shares pursuant to the prior sentence, the Company's
first offer rights shall continue to be applicable to any subsequent
disposition of the Target Shares by the Transferring Shareholder.
3.3 NON-EXERCISE OF RIGHT OF FIRST REFUSAL.
Subject to the co-sale rights described in Section 3.6 below of
Catterton, the Bain Shareholders, WP and any of their Permitted
Transferees, in the event the Company Offer Notice with respect to the
Target Shares is not given to the Transferring Shareholder before the
expiration of the Company Exercise Period, the Transferring Shareholder
shall have a period of one hundred twenty (120) days from the expiration of
the Company Exercise Period in which to sell the Target Shares to the
third-party transferee at a purchase price not less than that specified in
the Disposition Notice without any further obligation to the Company, with
respect to the Target Shares. The third-party transferee shall acquire the
Target Shares free and clear of subsequent rights of first offer under this
Agreement. In the event the Transferring Shareholder does not consummate
the sale or disposition of the Target Shares within one hundred twenty
(120) days from the expiration of the Company Exercise Period, the
Company's first offer rights shall continue to be applicable to any
subsequent disposition of the Target Shares by the Transferring Shareholder
until such rights lapse in accordance with Section 3.8 below. Furthermore,
the exercise or non-exercise of the rights of the Company under this
Agreement to purchase Target Shares from a Transferring Shareholder shall
not adversely affect its rights to make subsequent purchases from a
Transferring Shareholder of Target Shares.
3.4 CLOSING OF SALE OF TARGET SHARES.
If the Transferring Shareholder shall accept the offer contained
in the Company Offer Notice, the closing of such purchase and sale of
Target Shares by the Company (and/or its assignees) shall take place as
soon as reasonably practicable, and in no event later than ten (10)
business days, after the Transferring Shareholder gives written notice to
the Company that it accepts such offer. At the closing of such purchase and
sale of capital stock, and upon delivery by the Company (and/or its
assignees) of the purchase price of such capital stock by wire transfer of
immediately available funds to an account or accounts designated by the
Transferring Shareholder, the Shareholder shall deliver to the Company
(and/or its assignee) certificates representing the Target Shares to be
purchased, each certificate to be properly endorsed for transfer.
3.5 ASSIGNMENT.
The right of the Company to purchase any part of the Stock under
this Section 3 may be assigned in whole or in part to one or more
employees, officers or directors of the Company, or to the Shareholders,
following acceptance of the offer contained in the Company Offer Notice by
the Transferring Shareholders; provided that if assigned to the
Shareholders, such right shall be assigned on a pro rata basis in
accordance with the number of Registrable Securities held by each such
Shareholder.
3.6 CO-SALE RIGHTS IN SALES BY A TRANSFERRING SHAREHOLDER.
(A) Grant of Co-Sale Rights. In the event that the Company does not
exercise its right of first offer pursuant to Section 3.2 with respect to
the Target Shares, then Catterton, the Bain Shareholders, WP and any of
their Permitted Transferees , as the case may be (each a "Tag Along
Seller"), shall have the right, exercisable upon written notice to the
Transferring Shareholder within twenty (20) days after receipt of the
Disposition Notice, to sell a number of shares of Stock owned by such Tag
Along Seller to any third-party transferee of the Target Shares upon the
same terms and conditions as the Transferring Shareholder and the
Transferring Shareholder shall not consummate such sale of Target Shares
except in compliance with this Section 3.6. Such written notice delivered
to the Transferring Shareholder by such Tag Along Seller shall set forth
the number of shares of Stock which such Tag Along Seller desires to sell
to a third-party transferee, which number shall not exceed the product
obtained by multiplying (i) the aggregate number of Target Shares, by (ii)
a fraction, the numerator of which is the number of shares of Stock at the
time owned by such Tag Along Seller and the denominator of which is the
number of shares of Stock at the time owned by the Transferring Shareholder
and such Tag Along Seller, collectively.
(B) CUTBACK. If a third-party transferee does not agree to purchase all of
the shares of Stock which the Transferring Shareholder and any Tag Along
Seller wish to sell, the number of shares which each selling Shareholder
shall sell to such third-party transferee shall be reduced pro rata among
the selling Shareholders in accordance with the number of shares of Stock
which they proposed be sold in such transaction.
(C) CONTROL OF SALE PROCESS. The Transferring Shareholder shall, in its
sole discretion, decide whether or not to pursue, consummate, postpone or
abandon any proposed sale to a third-party transferee and the terms and
conditions thereof. The Transferring Shareholder and its Affiliates shall
have no liability to a Tag Along Seller or its Affiliates arising from,
relating to or in connection with the pursuit, consummation, postponement,
abandonment or terms and conditions of any proposed sale of Stock to a
third-party transferee except to the extent the Transferring Shareholder
shall have failed to comply with the provisions of this Section 3.6.
(D) NON-EXERCISE. The exercise or non-exercise of the rights of such
Shareholder hereunder to participate in one or more sales of capital stock
made by a Transferring Shareholder shall not adversely affect its rights to
participate in subsequent sales by the Transferring Shareholder.
3.7 EXEMPT TRANSFERS.
Notwithstanding the foregoing, the first offer right of the
Company and the co-sale rights of the Tag Along Seller set forth in this
Section 3 shall not apply to:
(A) any transfer of Stock by a Shareholder (i) to a Permitted Transferee of
such Shareholder; provided, that, the Permitted Transferee shall furnish
the Company with a written agreement to be bound by and comply with the
terms of this Agreement, and such transferred Stock shall remain subject to
the terms of this Agreement, and (ii) to the public pursuant to a
registration statement or pursuant to a "brokers' transaction," within the
meaning of the Securities Act, pursuant to Rule 144 under the Securities
Act (each, an "Exempt Transfer"); and
(B) the transfer of a number of shares of Stock by a Shareholder which, in
addition to all other shares of Stock transferred by such Shareholder
(except for (i) Shares transferred by such Shareholder in Exempt Transfers
and (ii) Target Shares transferred by such Shareholder), does not exceed
five percent (5%) of the fully diluted Common Stock of the Company at the
time of such transfer.
3.8 TERMINATION.
Notwithstanding anything to the contrary in this Agreement, the
rights and obligations of the parties pursuant to this Section 3 shall
terminate upon (a) a merger of the Company with another corporation or
entity (without regard to which entity survives), in which the Company's
shareholders immediately prior to the transaction own immediately after the
transaction less than fifty percent (50%) of the equity securities of the
surviving corporation or its parent, as applicable or (b) a sale of all or
substantially all of the assets of the Company.
4. VOTING AGREEMENT
4.1 ELECTION OF MEMBERS OF THE BOARD OF DIRECTORS.
(A) The Board of Directors of the Company (and, if applicable, the
Nominating Committee thereof) shall: (i) for so long as Catterton and its
Permitted Transferees hold at least five percent (5%) of the issued and
outstanding Common Stock of the Company, nominate one (1) member of the
Company's Board of Directors designated by Catterton, who initially shall
be Craig Sakin, (ii) for so long as the Bain Shareholders and their
Permitted Transferees hold at least twenty percent (20%) of the issued and
outstanding Common Stock of the Company, nominate two (2) members of the
Company's Board of Directors designated by the Bain Shareholders, (iii) for
so long as the Bain Shareholders and their Permitted Transferees hold at
least five percent (5%) but less than twenty percent (20%) of the issued
and outstanding Common Stock of the Company, nominate one (1) member of the
Company's Board of Directors designated by the Bain Shareholders, (iv) for
so long as WP and its Permitted Transferees hold at least five percent (5%)
of the issued and outstanding Common Stock of the Company, nominate one (1)
member of the Company's Board of Directors designated by WP, who initially
shall be Ellis Jones, and (v) nominate one (1) member of the Company's
Board of Directors designated by the Chief Executive Officer of the
Company, who initially shall be D. Stephen C. Williamson.
(B) To the extent that additional "independent directors" in addition to
those Directors elected pursuant to Section 4.1(a) are required to serve on
the Board of Directors of the Company to fulfill the rules and regulations
promulgated by the NASD, the Board of Directors of the Company (and, if
applicable, the Nominating Committee thereof) shall, for so long as the
Bain Shareholders and their Permitted Transferees hold at least twenty
percent (20%) of the issued and outstanding Common Stock of the Company,
nominate (i) one (1) person designated by the Bain Shareholders to serve as
a member of the Company's Board of Directors, and (ii) one (1) person
designated by, collectively, the Company, Catterton and WP to serve as a
member of the Company's Board of Directors; provided, that, such
individuals must meet the criteria established by the NASD for "independent
directors" to be so nominated.
(C) Each of the Company and the Shareholders shall, in the case of the
Shareholders, vote any shares of Common Stock he may own and, in the case
of the Company and the Shareholders, take such other action, whether by
written consent or otherwise, to (i) elect or cause the election of the
foregoing nominees, (ii) fix the number of members of the Company's Board
of Directors at five (5), or, in the event that additional "independent
directors" are required to serve on the Purchaser Board to fulfill the
rules and regulations promulgated by the NASD, then fix the number of
members of the Company's Board of Directors at seven (7), and (iii) remove
from the Board of Directors such nominee at the written request (and only
at the written request) of the party entitled to designate such director.
(D) In the event the Company's Board of Directors does not nominate an
individual pursuant to Section 4.1(b)(i) or (ii), the parties to this
Agreement shall not nominate or vote in favor of a candidate who was not
nominated pursuant to the applicable subsection, unless, based upon a
written opinion of counsel, which counsel is reasonably acceptable to the
relevant designating party pursuant to Section 4.1(b), that the failure to
elect an additional "independent director" would be reasonably likely to
result in Odwalla's common stock being delisted from the NASDAQ National
Market within 30 calendar days.
4.2 TERMINATION OF VOTING AGREEMENT.
The rights and obligations of each Shareholder and the Company
with respect to Section 4.1 shall cease, (i) with respect to Catterton, the
Bain Shareholders and WP, at such time as such Shareholder ceases to hold
at least five percent (5%) of the issued and outstanding Common Stock of
the Company, or (ii) with respect to the other Shareholders, at such time
as such Shareholder ceases to hold at least fifty percent (50%) of the
shares held as of the date hereof as reflected in Schedule 1.
5. OTHER AGREEMENTS
5.1 INFORMATION RIGHTS.
For so long as each of the Bain Shareholders, Catterton and WP,
and each such party's Permitted Transferee, holds at least fifty percent
(50%) of the shares held by such party as of the date hereof as reflected
in Schedule 1, the Company shall deliver to such party, promptly following
delivery to the Company's Board of Directors, a copy of each unaudited
balance sheet of the Company and its subsidiaries and each unaudited
statement of income of the Company and its subsidiaries, in each case
prepared in accordance with GAAP (subject to normal year-end adjustments
and without footnote disclosure).
5.2 RESTRICTIVE LEGEND.
All certificates representing the Stock and any certificates
subsequently issued with respect thereto or in substitution therefor shall
bear a legend substantially as follows, in addition to any legend the
Company determines is required pursuant to any applicable legal
requirement:
"The shares represented by this certificate may not be offered,
sold, pledged, transferred or otherwise disposed of except in
accordance with the requirements of the Securities Act of 1933, as
amended, and a Shareholders' Rights Agreement, dated as of May 2,
2000, a copy of which Shareholders' Rights Agreement Odwalla, Inc.
will furnish, without charge, to the holder of this certificate
upon written request therefor."
provided, however, that the holder of any such certificate shall be
entitled to receive from the Company, at no expense to such holder, a new
certificate which does not bear such legend if (a) the Stock represented by
such certificate shall have been sold, transferred or otherwise disposed of
pursuant to one or more of the alternative conditions set forth in Section
5.28(m) of the Merger Agreement or (b) the conditions of paragraph (k) of
Rule 144 promulgated under the Securities Act shall have been satisfied.
The Company, at its discretion, may cause a stop transfer order to
be placed with its transfer agent(s) with respect to the certificates for
the Stock but not as to the certificates for any part of the Stock as to
which said legend is no longer appropriate.
5.3 SHAREHOLDER LOCKUP.
Except as provided in Section 5.4(b), notwithstanding anything in
this Agreement to the contrary: each of the Shareholders agrees not to sell
or otherwise transfer or dispose of any shares of Stock except to a
Permitted Transferee for a period of one (1) year commencing on the date of
this Agreement.
5.4 STANDSTILL.
(A) For the period beginning on the date of this Agreement and ending upon
a merger of the Company with another corporation or entity (without regard
to which entity survives), or a sale of all or substantially all of the
assets of the Company, in either case in which the Company's shareholders
immediately prior to the transaction own immediately after the transaction
less than fifty percent (50%) of the equity securities of the surviving
corporation or its parent, neither Catterton, WP nor any Bain Shareholder
or any of their respective Affiliates, shall, without the prior written
consent of the Board of Directors of the Company:
(I) acquire, offer to acquire, or agree to acquire, directly or indirectly,
including as part of a Group (as such term is defined in Section 13(d)(3)
of the Exchange Act), by purchase or otherwise, any additional shares of
Common Stock or other voting securities or direct or indirect rights to
acquire any additional shares of Common Stock or other voting securities of
the Company or any subsidiary of the Company, or of any successor to or
person in control of the Company (except pursuant to a stock split, stock
dividend, recapitalization, reclassification or similar transaction), or
any assets of the Company or any subsidiary or division of the Company or
of any such successor or controlling person;
(II) make, or in any way participate, directly or indirectly, in any
"solicitation" of "proxies" to vote (as such terms are defined in Rule
14a-1 under the Exchange Act), with respect to the solicitation or voting
of any voting securities of the Company in opposition to any matter that
has been recommended by the Board of Directors of the Company or in favor
of any matter that has not been approved by the Board, or become a
"participant" in any "election contest" (as such terms are defined or used
in Rule 14a-11 under the Exchange Act) with respect to the Company.
(III) make any unsolicited offer or proposal to acquire the Company or
shares of Common Stock or other voting securities of the Company.
Notwithstanding the foregoing, nothing in this Agreement shall prohibit the
Bain Shareholders, Catterton or WP from purchasing in one or more
transactions any debt securities, or up to an aggregate of 5% of any class
of publicly traded equity securities (the "5% Limitation"), of any company
referred to in this Section 5.4. The 5% Limitation shall be computed on a
cumulative basis and shall be measured at the time of each purchase of such
equity securities, such that at the time of each such purchase the
aggregate amount of such equity securities purchased by the Bain
Shareholders, Catterton or WP, as applicable, from the date of this
Agreement to the time of such purchase, shall not exceed 5% of the
outstanding shares of such class of publicly traded equity securities. The
Bain Shareholders, Catterton and WP acknowledge that they are aware, and
that they will advise their representatives who are informed of any of the
confidential information referred to in this Agreement and/or related to
the Company, of the restrictions imposed by applicable securities laws
restricting trading in securities while in possession of material
non-public information received from the issuer of such securities and on
communication of such information when it is reasonably foreseeable that
the recipient is likely to trade such securities in reliance on such
information.
(B) The limitations provided in Section 5.3 and Section 5.4(a) shall
immediately be suspended as to each Shareholder upon the occurrence of any
of the following events: (i) the occurrence of an Acquisition Proposal
which has not been initiated by such Shareholder or its Affiliates, (ii) a
public announcement that the Company is "for sale" or (iii) the adoption by
the Board of Directors of a plan of liquidation or dissolution. The Company
shall provide the Shareholders with prompt written notice of the occurrence
of any of the events set forth in this clause (b), and in no event more
than five (5) business days after the occurrence of such event.
6. MISCELLANEOUS
6.1 LLC SHARES.
For all purposes of this Agreement, all shares of Stock owned by
the LLC shall be deemed to be owned by the Bain Shareholders for so long as
the Bain Shareholders are Members of the LLC.
6.2 AMENDMENT OF LLC AGREEMENT.
Each of the LLC and each Shareholder party to the LLC Agreement
dated as of February 2, 2000 hereby agrees that it will not amend,
supplement or otherwise modify the provisions of Section 5.2 of such
agreement without the prior written consent of the Company.
6.3 GOVERNING LAW.
This Agreement is to be construed in accordance with and governed
by the laws of the State of California (as permitted by Section 1646.5 of
the California Civil Code or any similar successor provision), without
giving effect to any choice of law rule that would cause the application of
the laws of any jurisdiction other than the State of California to the
rights and duties of the parties.
6.4 TERMINATION OF EXISTING RIGHTS AGREEMENT.
Each of the Company and Catterton hereby agrees the Existing
Rights Agreement is hereby terminated and shall be of no further force and
effect and that no party thereto shall have any further rights or
obligations thereunder.
6.5 SUCCESSORS AND ASSIGNS.
Except as otherwise expressly provided herein, the provisions
hereof shall inure to the benefit of, and be binding upon, the successors,
assigns, heirs, executors, and administrators of the parties hereto and
shall inure to the benefit of and be enforceable by each person who shall
be a transferee of a Shareholder from time to time; provided, however, that
prior to the receipt by the Company of adequate written notice of the
transfer of any Registrable Securities specifying the full name and address
of the transferee, the Company may deem and treat the person listed as the
holder of such Registrable Securities in its records as the absolute owner
and holder of such Registrable Securities for all purposes, including the
payment of dividends or any redemption price.
6.6 SEVERABILITY.
In case any provision of this Agreement shall be invalid, illegal,
or unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
6.7 AMENDMENT AND WAIVER.
Except as otherwise expressly provided, the rights and obligations
of the Company and the Shareholders under this Agreement may be amended,
modified or waived only with the written consent of the Company and the
holders of at least a seventy-five percent (75%) of the Registrable
Securities, provided, however, that such consent is not required if the
sole purpose of such amendment or modification is to add additional
shareholders of the Company to this Agreement; and provided further that no
amendment which would adversely affect any Shareholder or group of
Shareholders shall be effective without the written consent of such
Shareholder or such group.
6.8 DELAYS OR OMISSIONS.
It is agreed that no delay in exercising or omission to exercise
any right, power, or remedy accruing to any Shareholder, upon any breach,
default or noncompliance of the Company under this Agreement, shall impair
any such right, power, or remedy, nor shall it be construed to be a waiver
of any such breach, default or noncompliance, or any acquiescence therein,
or of any similar breach, default or noncompliance thereafter occurring. It
is further agreed that any waiver, permit, consent, or approval of any kind
or character on any Shareholder's part of any breach, default or
noncompliance under the Agreement or any waiver on such Shareholder's part
of any provisions or conditions of this Agreement must be in writing and
shall be effective only to the extent specifically set forth in such
writing. All remedies, either under this Agreement, by law, or otherwise
afforded to Shareholders, shall be cumulative and not alternative.
6.9 NOTICES.
All notices required or permitted hereunder shall be in writing
and shall be deemed effectively given: (i) upon personal delivery to the
party to be notified, (ii) when sent by confirmed telex or facsimile if
sent during normal business hours of the recipient; if not, then on the
next business day, (iii) three (3) days after having been sent by
registered or certified mail, return receipt requested, postage prepaid, or
(iv) one (1) day after deposit with a nationally recognized overnight
courier, specifying next-day delivery, with written verification of
receipt. All communications shall be sent to the addresses set forth on
Schedule 2 attached hereto or such other address as may be specified by any
Shareholder by giving notice to the Company as aforesaid.
6.10 ATTORNEYS' FEES.
In the event that any dispute among the parties to this Agreement
should result in litigation, arbitration or other method of dispute
resolution, the Person presiding over such action or other proceeding may
award reasonable attorneys' fees, costs and disbursements to the prevailing
party (in addition to any other relief to which the prevailing party may be
entitled).
6.11 TITLES AND SUBTITLES.
The headings contained in this Agreement are for convenience of
reference only, shall not be deemed to be a part of this Agreement and
shall not be referred to in connection with the construction or
interpretation of this Agreement.
6.12 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 but one and the same instrument.
6.13 CONSTRUCTION.
For purposes of this Agreement, whenever the context requires: the
singular number shall include the plural, and vice versa; the masculine
gender shall include the feminine and neuter genders; the feminine gender
shall include the masculine and neuter genders; and the neuter gender shall
include the masculine and feminine genders.
6.14 ENTIRE AGREEMENT.
This Agreement, which includes the Exhibits and other agreements
expressly referenced herein (if any), constitutes the entire agreement
between the parties concerning the subject matter hereof and supersedes any
prior agreements (including, but not limited to, the Existing Rights
Agreement), representations, statements, negotiations, understandings,
proposals or undertakings, oral or written, with respect to the subject
matter expressly set forth herein.
IN WITNESS WHEREOF, the parties hereto have executed this
SHAREHOLDERS' RIGHTS AGREEMENT as of the date set forth in the first
paragraph hereof.
THE COMPANY: ODWALLA, INC.,
a California corporation
By: /s/ D. Stephen C. Williamson
----------------------------------
Name: D. Stephen C. Williamson
Title: Chief Executive Officer
SHAREHOLDER: CATTERTON-SIMON PARTNERS III, L.P.,
a Delaware limited partnership
By: /s/ Craig Sakin
----------------------------------
Name: Craig Sakin
Title: Authorized Person
SHAREHOLDER: D. STEPHEN C. WILLIAMSON,
an individual
By: /s/ D/. Stephen C. Williamson
-----------------------------------
Name: D. Stephen C. Williamson
SHAREHOLDER: U.S. EQUITY PARTNERS, L.P.,
a Delaware limited partnership
By: /s/ Ellis B. Jones
-----------------------------------
Name: Ellis B. Jones
Title: Managing Director
SHAREHOLDER: U.S. EQUITY PARTNERS (OFFSHORE), L.P.,
a Cayman Islands limited partnership
By: /s/ Ellis B. Jones
---------------------------------
Name: Ellis B. Jones
Title: Managing Director
SHAREHOLDER: BANCBOSTON INVESTMENTS INC.
a Massachusetts corporation
By: /s/ R.L. Clark, Jr.
----------------------------------
Name: R.L. Clark, Jr.
Title: Director
SHAREHOLDER: BAIN CAPITAL FUND VI, L.P.,
By: Bain Capital Partners VI, L.P.,
its general partner
By: Bain Capital Investors VI, Inc.,
its general partner
By: /s/ Mark Nunnelly
________________________________
Name: Mark Nunnelly
Title: Managing Director
SHAREHOLDER: BCIP ASSOCIATES II
BCIP TRUST ASSOCIATES II
BCIP ASSOCIATES II-B
BCIP TRUST ASSOCIATES II-B
BCIP ASSOCIATES II-C,
By: Bain Capital, Inc.,
their Managing Partner
By: /s/ Mark Nunnelly
________________________________
Name: Mark Nunnelly
Title: Managing Director
SHAREHOLDER: PEP INVESTMENTS PTY LTD.,
By: Bain Capital, Inc.,
its Attorney-in-Fact
By: /s/ Mark Nunnelly
________________________________
Name: Mark Nunnelly
Title: Managing Director
SHAREHOLDER: RGIP, LLC,
a Delaware limited liability company
By: /s/ Bradford J. Malt
________________________________
Name: Bradford J. Malt
Title: Authorized Person
SHAREHOLDER: JIP ENTERPRISES, INC.,
a British Virgin Islands corporation
By: /s/ Juan Prado
________________________________
Name: Juan Prado
Title: Authorized Person
SHAREHOLDER: MICHAEL CARTER,
an individual
By: /s/ Michael Carter
------------------------------
Name: Michael Carter
SHAREHOLDER: DOUGLAS LEVIN,
an individual
By: /s/ Douglas Levin
---------------------------------
Name: Douglas Levin
SHAREHOLDER: SAMANTHA INVESTORS, LLC,
a Massachusetts limited liability
company
By: /s/ Mark Nunnelly
________________________________
Name: Mark Nunnelly
Title: Authorized Person
SCHEDULE 1
SHAREHOLDER SHARES OF COMMON STOCK OWNED
AS OF THE DATE HEREOF
Catterton-Simon Partners III, L.P. 1,493,461
D. Stephen C. Williamson [810,326]
U.S. Equity Partners, L.P. 601,667
U.S. Equity Partners (Offshore), L.P. 162,945
BancBoston Investments Inc. 36,029
Samantha Shareholders:
- ---------------------
Bain Capital Fund VI, L.P. 1,971,664*
BCIP Associates II 472,960 *
BCIP Associates II-B 92,331*
BCIP Associates II-C 88,166*
BCIP Trust Associates II 91,430*
BCIP Trust Associates II-B 51,474*
PEP Investments PTY Ltd 6,543*
RGIP, LLC 28,055*
JIP Enterprises, Inc. 57,492*
Douglas Levin 246,973*
Michael Carter 246,973*
Samantha Investors, LLC 3,612,122
* Share numbers set forth in connection with Section 4.2 and 5.1 only and
may change upon dissolution of LLC.
SCHEDULE 2
NOTICE ADDRESSES
ODWALLA, INC.
SHAREHOLDERS' RIGHTS AGREEMENT
MAY 2, 2000
TABLE OF CONTENTS
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PAGES
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1. GENERAL 2
1.1 Definitions.....................................................................................2
2. REGISTRATION.............................................................................................4
2.1 Demand Registrations............................................................................4
2.2 Company Registration............................................................................5
2.3 Additional Procedures in Connection with Underwritten Offerings; Lockups;
Cutbacks........................................................................................6
2.4 Expenses of Registration........................................................................7
2.5 Obligations of the Company......................................................................8
2.6 Termination of Registration Rights..............................................................9
2.7 Company Lockup.................................................................................10
2.8 Indemnification................................................................................10
2.9 Assignment of Registration Rights..............................................................12
2.10 Participation by Shareholders..................................................................12
2.11 Reports Under Securities Exchange Act of 1934..................................................13
3. RIGHT OF FIRST OFFER; CO-SALE RIGHTS....................................................................13
3.1 Notice of Intended Disposition.................................................................13
3.2 Exercise of Right by the Company...............................................................14
3.3 Non-Exercise of Right of First Refusal.........................................................14
3.4 Closing of Sale of Target Shares...............................................................14
3.5 Assignment.....................................................................................15
3.6 Co-Sale Rights in Sales by a Transferring Shareholder..........................................15
3.7 Exempt Transfers...............................................................................16
3.8 Termination....................................................................................16
4. VOTING AGREEMENT........................................................................................16
4.1 Election of Members of the Board of Directors..................................................16
4.2 Termination of Voting Agreement................................................................17
5. OTHER AGREEMENTS........................................................................................17
5.1 Information Rights.............................................................................17
5.2 Restrictive Legend.............................................................................18
5.3 Shareholder Lockup.............................................................................18
5.4 Standstill.....................................................................................18
6. MISCELLANEOUS...........................................................................................20
6.1 LLC Shares.....................................................................................20
6.2 Amendment of LLC Agreement.....................................................................20
6.3 Governing Law..................................................................................20
6.4 Termination of Existing Rights Agreement.......................................................20
6.5 Successors and Assigns.........................................................................20
6.6 Severability...................................................................................20
6.7 Amendment and Waiver...........................................................................20
6.8 Delays or Omissions............................................................................21
6.9 Notices........................................................................................21
6.10 Attorneys' Fees................................................................................21
6.11 Titles and Subtitles...........................................................................21
6.12 Counterparts...................................................................................22
6.13 Construction...................................................................................22
6.14 Entire Agreement...............................................................................22
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BANCBOSTON INVESTMENTS, INC.
CO-INVESTMENT AGREEMENT
This CO-INVESTMENT AGREEMENT (this "AGREEMENT") is made
as of this second day of May, 2000, by and among U.S. Equity Partners,
L.P., a Delaware limited partnership ("USEP"), U.S. Equity Partners
(Offshore), L.P., a Cayman Islands limited partnership ("USEP OFFSHORE,"
together with USEP, the "WP FUNDS"), the investor identified on the
signature page attached hereto ("INVESTOR") and WP Management Partners,
L.L.C., a Delaware limited liability company and the general partner of the
WP Funds ("WPMP").
RECITALS
A. Investor, the WP Funds and the Odwalla, Inc., a
California corporation (the "COMPANY") are parties to a Stock Purchase
Agreement, dated as of February 11, 2000, as amended by Amendment No. 1
dated as of February 11, (the "PURCHASE AGREEMENT") and a Shareholders'
Rights Agreement, dated as of the date hereof (the "STOCKHOLDERS
AGREEMENT"), pursuant to which, Investor and the WP Funds have agreed to
purchase an aggregate of 800,641 shares of common stock of the Company
("COMMON STOCK") and have agreed to the other rights and obligations
contained therein.
B. Investor desires to purchase 36,029 shares of Common
Stock pursuant to the Purchase Agreement (the "Shares") on a co-investment
basis with the WP Funds on the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the premises and
covenants and agreements contained herein, the parties hereto agree as
follows:
ARTICLE I
ISSUANCE OF SHARES
1.1 Issuance of Shares.
(a) [Intentionally omitted.]
(b) It is understood and agreed that the co-investment
contemplated by this Agreement is separate from and independent of the
partnership agreements governing the WP Funds, and that accordingly, (i) no
Investor shall (A) be obligated to pay any management fees or incentive
compensation to WPMP in respect of the Shares or (B) participate in any
transaction or other fees payable to WPMP as general partner of each of the
WP Funds, or to the limited partners of the WP Funds in respect of the WP
Funds' investment in the Company; and (ii) Investor and the WP Funds will
each bear its own expenses in connection with the co-investment
contemplated by this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF INVESTOR
2.1 Federal Securities Laws Matters. Investor represents and
warrants to the other parties hereto that (a) the Shares are being acquired
for its own account and not for purposes of distribution thereof, (b) that
it is an "accredited investor" (as defined in Rule 501(a) of Regulation D
of the Securities Act of 1933, as amended (the "SECURITIES ACT")), (c) it
understands that the Shares have not been registered under the Securities
Act, are being sold to Investor in a transaction that is exempt from the
registration requirements of the Securities Act, and must be held by
Investor indefinitely unless subsequently registered under the Securities
Act or offered and sold pursuant to an exemption from such registration
requirement, (d) its financial situation is such that it can afford to bear
the economic risk of holding the Shares for an indefinite period, (e) it
can afford to suffer the complete loss of its investment in the Shares, (f)
it understands and has taken cognizance of all the risk factors related to
the purchase of the Shares, (g) its knowledge and experience in financial
and business matters is such that it is capable of evaluating the risks of
the investment in the Shares, and (h) Investor has been afforded access to
all information that it has requested with respect to the business,
operations, and prospects of the Company.
2.2 Authorization of Investor. Investor represents and warrants to
the other parties hereto that (a) Investor has the requisite power and
authority to enter into this Agreement and to perform its obligations
hereunder, (b) this Agreement has been duly authorized, executed and
delivered by it, (c) this Agreement constitutes a legal, valid and binding
obligation of Investor, enforceable in accordance with its terms, and (d)
its purchase of and payment for the Shares and ownership of the Shares on
the terms and conditions set forth herein will not violate any applicable
law or governmental regulation to which Investor is subject.
ARTICLE III
[INTENTIONALLY OMITTED.]
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE WP FUNDS
4.1 Authorization of WP Funds. Each of USEP and USEP Offshore
represents and warrants to Investor that (a) it has the requisite limited
partnership power and authority to enter into this Agreement and to perform
its obligations hereunder, (b) this Agreement has been duly authorized,
executed and delivered by it, and (c) this Agreement constitutes a legal
valid and binding obligation of it, enforceable in accordance with its
terms.
ARTICLE V
CERTAIN AGREEMENTS REGARDING INVESTOR SECURITIES
5.1 Investor Securities and WP Fund Securities. As used herein,
the term "INVESTOR SECURITIES" means the Shares held by Investor on the
date hereof and any Successor Securities. As used herein, the term "WP FUND
SECURITIES" means the Shares held by the WP Funds on the date hereof and
any Successor Securities. As used herein, the term, "SUCCESSOR SECURITIES,"
means securities of the Company or any other issuer issued, distributed or
otherwise received by a Person in exchange for, pursuant to the conversion
or exercise of, as a dividend or distribution on or otherwise in respect of
the Shares then held by such Person.
5.2 Transfers
(a) Unless otherwise agreed by each Investor and the WP Funds, in
the event that the WP Funds directly or indirectly sell, transfer,
exchange, convert or otherwise dispose (other than a pledge to secure
indebtedness) of the WP Fund Securities (or any portion thereof), then each
Investor and the WP Funds shall take all necessary action such that,
simultaneously therewith, the Investor Securities (or a pro rata portion
thereof) which are of the same type as such WP Fund Securities will be
sold, transferred, exchanged, converted or otherwise disposed of on the
same terms as are applicable to such WP Fund Securities. Subject to
applicable legal requirements and confidentiality obligations, the WP Funds
will give each Investor prompt and reasonable notice of any contemplated
direct or indirect sale, transfer, exchange, conversion or other
disposition of WP Fund Securities described above.
(b) Investor agrees not to directly or indirectly sell, transfer,
exchange, convert or otherwise dispose of Investor Securities without the
consent of the WP Funds, except that the limitation of this Section 5.2(b)
will not apply to a transfer of Investor Securities to (i) any entity that
is a corporate parent or a direct or indirect wholly-owned subsidiary of
Investor or (ii) FleetBoston Financial Corporation or any direct or
indirect wholly-owned subsidiary of FleetBoston Financial Corporation;
provided such transferee(s) agrees in writing with the WP Funds to be bound
by the terms and provisions of Article V of this Agreement as if it were a
party hereto.
(c) Investor agrees not to directly or indirectly sell, transfer,
exchange, convert or otherwise dispose of Investor Securities in any
transaction which would be in violation of the securities laws of the
United States of America or any State thereof including the Securities Act
and all applicable state securities and blue sky laws.
(d) The provisions of Section 5.2(a) will not apply to any
transfer of WP Fund Securities by the WP Funds (i) as an in kind
distribution to the limited partners of the WP Funds, provided that if and
to the extent that WP Fund Securities are so distributed then the Investor
Securities of the same type and in the same proportion as such WP Fund
Securities so distributed will no longer be subject to Section 5.2(a) and
(b) and Section 5.3, or (ii) to any Affiliate of either of the WP Funds;
provided such transferee(s) agrees in writing with Investor to be bound by
the terms and provisions of Article V of this Agreement as if it were a
party hereto. As used herein, the term (i) "AFFILIATE" means, with respect
to any Person, any other Person directly or indirectly controlling,
controlled by or under common control with the first Person; (ii)
"CONTROL," when used with respect to any Person, means the possession,
directly or indirectly, of the power to (x) vote 10% or more of the
securities having ordinary voting power for the election of directors (or
individuals holding comparable positions) of such Person or (y) direct or
cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise, and
the terms "CONTROLLING" and "CONTROLLED" have meanings correlative to the
foregoing; and (iii) "PERSON" means an individual, corporation,
partnership, limited liability company, association, trust or other entity
or organization, including a government or political subdivision or an
agency or instrumentality thereof.
(e) Investor acknowledges and agrees that neither the WP Funds nor
any of their respective partners or affiliates will have any duties or
obligations (including, without limitation, any fiduciary duties) to
Investor with respect to any sale, transfer, exchange, conversion, exercise
or other disposition of Shares which may occur by operation of Section
5.2(a), other than those obligations specifically set forth in Section
5.2(a), and that the operation of Section 5.2(a) may result in the
disposition of Investor Securities by Investor for consideration that may
not be fair, from a financial point of view, to Investor. Investor hereby
waives any claims against the WP Funds or any of their respective partners
or affiliates based upon or arising out of any such disposition of Investor
Securities by Investor.
(f) The WP Funds will not effect any sale, transfer, exchange,
conversion or other disposition of WP Fund Securities in violation of this
Section 5.2.
5.3 Irrevocable Proxy; Powers of Attorney. Investor hereby
irrevocably makes, constitutes and appoints WPMP, effective as of the date
hereof until such date as the WP Funds no longer hold any of the WP Fund
Securities, as Investor's true and lawful proxy and attorney-in-fact, with
full power of substitution and resubstitution, to vote any and all Investor
Securities at any meeting of the holders of such securities or with respect
to any action by written consent of such holders with respect to any matter
on which holders of such securities are entitled to vote or act by consent,
provided that such power is exercised so as to cause the Investor
Securities to be voted in the same manner as the WP Fund Securities are
voted. Investor hereby irrevocably makes, constitutes and appoints WPMP as
Investor's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution to give or withhold, as the case may be,
consent and to take any ministerial action with respect to, any sale,
transfer, exchange, conversion or other disposition of any Investor
Securities as contemplated by Section 5.2(a), and does hereby confirm and
ratify all such ministerial actions that said attorney-in-fact and agent or
its substitute or resubstitute may do or cause to be done by virtue hereof.
All power and authority hereby conferred by Investor is coupled with an
interest and is irrevocable, and will not be terminated by any act of
Investor or by operation of law, by lack of appropriate power or authority,
or by the occurrence of any other event or events.
5.4 Maintenance of Percentage of Shares.
(a) Investor will have the right, in the case of any proposed
issuance of shares of Common Stock or Successor Securities (in either case
"EQUITY SECURITIES") by the Company or any such successor which is exempt
from registration under the Securities Act in which the WP Funds elect to
participate and during a reasonable time to be fixed by the WP Funds, to
purchase a portion of the Equity Securities to be purchased by the WP Funds
in an amount bearing the same proportion to the aggregate number of Equity
Securities to be purchased by the WP Funds pursuant to such issuance, as
the number of Equity Securities held by Investor on a fully-diluted basis
at the time of such issuance bears to the total number of Equity Securities
then held by the WP Funds and all other Persons, and on the same price per
share and terms which the Equity Securities are sold to the WP Funds.
Anything to the contrary notwithstanding, no Investor will have the right
to purchase Equity Securities that are (i) issuable for sale in any public
offering or (ii) issuable in connection with an acquisition of stock or
assets of any other entity or entities by the Company, any successor and/or
its or its successor's subsidiaries, or a merger or consolidation of any
other entity or entities into or with the Company, any successor and/or its
or its successor's subsidiaries.
(b) In the event of any issuance giving rise to the rights
provided for in Section 5.4(a), the WP Funds shall cause to be given to
Investor a written notice addressed to such Investor at its last address as
shown by the records of the Company, setting forth the time within which
and the terms and conditions upon which Investor may purchase Equity
Securities being issued or sold pursuant to such offering. Such notice
shall be given by first class mail, postage prepaid, not less than 10 days
prior to the expiration of the period during which Investor shall have the
right to purchase.
ARTICLE VI
MISCELLANEOUS
6.1 Reports. WPMP, in its capacity as general partner of each of
the WP Funds, will provide Investor with any quarterly and annual financial
statements of the Company made available to the WP Funds.
6.2 Complete Agreement. This Agreement constitutes the entire
agreement and understanding among the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and
understandings among the parties hereto with respect to the subject matter
hereof. Without limiting the generality or effect of the foregoing, each
Investor hereby acknowledges and agrees that neither the WP Funds, WPMP,
the Company nor any other person or entity made any representation or
warranty or furnished any information with respect to the Company or the
Shares upon which Investor relied in connection with the transactions
contemplated hereby. Investor further acknowledges that it is a
sophisticated entity and has independently made its own investment decision
in respect thereof and hereby agrees not to pursue any claim or cause of
action against the WP Funds, WPMP, the Company or any such other person or
entity in connection therewith or as a result thereof and that its sole and
exclusive remedies with respect to the transactions contemplated hereby
will arise only out of a material breach of a representation, warranty or
covenant herein.
6.3 Amendment. This Agreement may not be amended, modified or
supplemented and no waivers of or consents to departures from the
provisions hereof may be given unless consented to in writing by all of the
parties hereto.
6.4 Notices. All notices, statements, instructions or other
documents provided for herein shall be in writing and shall be delivered
either personally or by mailing the same in a sealed envelope, first-class
mail, postage prepaid and either certified or registered, return receipt
requested, addressed to Investor, WPMP or the Company at its address set
forth on the signature page hereto. Each party, by written notice given to
the other party in accordance with this Section 6.4, may change the address
to which notices, statements, instructions or other documents are to be
sent to such party. All notices, statements, instructions and other
documents hereunder will be deemed to have been given on the earlier of the
date of actual delivery and three days after the date of mailing, except
that notice of a change of address will be effective only upon actual
delivery.
6.5 Successors; Assigns. The terms and conditions of this
Agreement will be binding on and inure to the benefit of the respective
successors and permitted assigns of the parties hereto; provided, however,
that, other than to a Permitted Transferee, the rights and obligations
under this Agreement may not be assigned or delegated by any party hereto
without the prior written consent of the other parties hereto. For purposes
of this Section 6.5, the term "PERMITTED TRANSFEREE" means any transferee
of Shares in a transaction to which the restrictions of Sections 5.2(a) or
5.2(b) are expressly inapplicable under the terms of this Agreement.
6.6 Counterparts. This Agreement may be executed by the parties
hereto in any number of counterparts, each of which will be deemed to be an
original, but all of which shall together constitute one and the same
instrument.
6.7 Severability. The invalidity, illegality or unenforceability
of any provision of this Agreement in any jurisdiction will 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 or such provision in any other jurisdiction, it being the intent
of the parties hereto that all rights and obligations of the parties hereto
under this Agreement shall be enforceable to the fullest extent permitted
by law.
6.8 Headings. The section headings herein are for convenience of
reference only and in no way define, limit or extend the scope or intent of
this Agreement or any provisions hereof.
6.9 Applicable Law. The laws of the State of New York will govern
this Agreement, regardless of the laws that might be applied under
applicable principles of conflict of laws.
6.10 No Third Party Beneficiaries. This Agreement is intended to
be solely for the benefit of the parties hereto and their respective
successors and permitted assigns and is not for the benefit of, nor may any
provision hereof be enforced by, any other person or entity.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
WP MANAGEMENT PARTNERS, L.L.C.
By: /s/ Ellis B. Jones
----------------------------
Name: Ellis B. Jones
Title: Executive Vice-President
U.S. EQUITY PARTNERS, L.P.
By: WP Management Partners, L.L.C.,
general partner
By: /s/ Ellis B. Jones
-----------------------------
Name: Ellis B. Jones
Title: Executive Vice-President
U.S. EQUITY PARTNERS (OFFSHORE), L.P.
By: WP Management Partners, L.L.C.,
general partner
By: /s/ Ellis B. Jones
------------------------------
Name: Ellis B. Jones
Title: Executive Vice-President
Address for Odwalla, Inc.
120 Stone Pine Road
Half Moon Bay, California 94019
Attention: D. Stephen Williamson
Address for each of
WP Management Partners, L.L.C., US.
Equity Partners, L.P. and
U.S. Equity Partners (Offshore), L.P.:
c/o WP Management Partners, L.L.C.
31 West 52nd Street
New York, New York 10019
Attention: James C. Kingsbery
Jordan Bernstein, Esq.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
BANCBOSTON INVESTMENTS, INC.
By: /s/ Mark H. DeBlois
-----------------------------
Name: Mark H. DeBlois
Title: Managing Director
Address:
175 Federal Street
10th Floor
Boston, Massachusetts 02110
Attention: Mr. Tim Sheehy
No. of Shares Aggregate Price Percent of Total Issued and
being Subscribed for of Shares Outstanding Shares
---------------------- ---------------- ----------------------------
36,029 $225,000 0.3%
Exhibit 5
AGREEMENT WITH RESPECT TO THE JOINT FILING OF SCHEDULE 13D
The undersigned agree, in accordance with the provisions of
Regulation Section 240.13d-1 (f) (1) of the Securities Exchange Act of
1934, as amended (the "Act") to the joint filing of Schedule 13D of the Act
pertaining to their ownership of securities of Odwalla, Inc., a California
corporation. The undersigned further agree, each person or entity on whose
behalf such statement is filed is responsible for its timely filing and for
the timely filing of any amendment thereto and for the completeness and
accuracy of the information concerning each person or entity contained
therein.
This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned executed this Agreement
this 12th day of May, 2000.
WASSERSTEIN PERELLA GROUP, INC.
By /s/ James C. Kingsbery
-------------------------
Name: James C. Kingsbery
Title: Chief Financial Officer
WP MANAGEMENT PARTNERS, L.L.C.
By /s/ James C. Kingsbery
-------------------------
Name: James C. Kingsbery
Title: Treasurer
U.S. EQUITY PARTNERS, L.P.
By WP MANAGEMENT PARTNERS, L.L.C.
Its Sole General Partner
By /s/ James C. Kingsbery
-------------------------
Name: James C. Kingsbery
Title: Treasurer
U.S. EQUITY PARTNERS (OFFSHORE), L.P.
By WP MANAGEMENT PARTNERS, L.L.C.
Its Sole General Partner
By /s/ James C. Kingsbery
Name: James C. Kingsbery
Title: Treasurer
