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EXHIBIT 10.15
SN&R DRAFT 10/7/97 10:41 A.M. XXXXXXXX HOLDINGS, L.P.
(Name of Selling Stockholder)
CUSTODY AGREEMENT AND POWER OF ATTORNEY
FOR SALE OF CLASS A COMMON STOCK OF
AMERICAN ITALIAN PASTA COMPANY
October 7, 1997
Xx. Xxxxxxx X. Xxxxxxx
Xx. Xxxxx X. Xxxxxx
as Attorneys-in-Fact
c/o American Italian Pasta Company
0000 Xxxxxxx Xxx
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Republic New York Securities Corporation
as Custodian
c/o Xx. Xxxxxx Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
After the conversion of all outstanding shares of the common stock, no
par value per share (the "Old Common"), of American Italian Pasta Company, a
Delaware corporation (the "Company"), and the Class A common stock, par value
$.01 per share of the Company (with the Old Common collectively, the "Old
Common Stock") into shares of the Class A Convertible Common Stock, par value
$.001 per share (the "New Common Stock") of the Company pursuant to a proposed
recapitalization (the "Recapitalization"), the Company proposes to issue and
sell, and the undersigned and certain other stockholders of the Company (the
undersigned and such other stockholders hereinafter collectively referred to as
the "Selling Stockholders") propose to sell, shares of New Common Stock to a
group of U.S. underwriters (the "U.S. Underwriters"), for whom Xxxxxx Xxxxxxx &
Co. Incorporated, BT Alex. Xxxxx Incorporated, Xxxxxxx, Sachs & Co. and Xxxxxx
X. Xxxx & Company are acting as representatives (the "U.S. Representatives")
and to a group of international underwriters (the "International Underwriters,
together with the U.S. Underwriters, the "Underwriters") for whom Xxxxxx
Xxxxxxx & Co. International Limited, BT Alex. Xxxxx International, Xxxxxxx
Sachs International and Xxxxxx X. Xxxx & Company are acting as representatives
(the "International Representatives," together with the U.S. Representatives,
the "Representatives"), for distribution to the public in an initial public
offering (the "Offering") as contemplated by a registration statement on Form
S-1, File No. 333-32827 (the "Registration Statement"), in amounts, at a price
and on terms to be set forth in an underwriting agreement (the "Underwriting
Agreement") to be executed by and among the Company, the Selling Stockholders
and the Representatives. In addition, solely for the purpose of covering
over-allotments, if any, the Company and/or certain Selling Stockholders
propose
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to sell to the Underwriters, in amounts, at a price and upon terms to be set
forth in the Underwriting Agreement, additional shares of New Common Stock.
It is understood that at this time there is no commitment on the part of
the Underwriters to purchase any shares of New Common Stock and there are no
assurances that the Offering will take place or that the undersigned will be
offered an opportunity to sell any shares of New Common Stock even if the
Offering does take place.
The undersigned, by executing and delivering this irrevocable Custody
Agreement and Power of Attorney (this "Agreement"), confirms its willingness to
sell the maximum number of shares of New Common Stock (collectively, the "New
Shares") as set forth on Schedule I hereto (and subject to any conditions set
forth therein) to the Underwriters.
The undersigned acknowledges receipt of (i) a draft dated October 7,
1997 of the Underwriting Agreement (such draft, the "Draft Underwriting
Agreement"); and (ii) a conformed copy (without exhibits) of the Registration
Statement and all amendments thereto through the date of execution hereof. The
undersigned understands that the Underwriting Agreement is subject to revision
prior to execution, with such changes as the Attorneys-in-Fact deem appropriate
(including with respect to the number of New Shares to be sold by the
undersigned), and that the Registration Statement has not yet become effective
under the Securities Act of 1933 (the "Securities Act") and is subject to
amendment.
1. Appointment and Powers of Attorneys-in-Fact
a. The undersigned irrevocably constitutes and appoints
Xxxxxxx X. Xxxxxxx and Xxxxx X. Xxxxxx (the "Attorneys-in-Fact"), and
each of them, its agent and attorney-in-fact, with full power of
substitution, with respect to all matters arising in connection with the
offering and sale of the New Shares (subject to the limitations set
forth below) including, but not limited to, the power and authority on
behalf of the undersigned to do or cause to be done any of the
following:
i. negotiate, determine and agree upon (a) the price at
which the New Shares will be initially offered to the public by
the Underwriters pursuant to the Underwriting Agreement; (b) the
underwriting discount with respect to the New Shares, not to
exceed 7%; and (c) the price at which the New Shares will be sold
to the Underwriters by the undersigned pursuant to the
Underwriting Agreement; provided that any such underwriting
discount and price at which the New Shares will be sold to the
Underwriters will be the same as the price at which shares of New
Common Stock are sold to the Underwriters by the Company;
ii. negotiate, execute and deliver the Underwriting
Agreement, substantially in the form of the Draft Underwriting
Agreement, which provides for, among other things,
indemnification of the Underwriters by the undersigned for
certain liabilities and including such insertions, changes,
additions or deletions as the Attorneys-in-Fact in their sole
discretion deem appropriate, such approval to be conclusively
evidenced by
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the execution and delivery of the Underwriting Agreement by an
Attorney-in-Fact, including the making of all representations and
agreements provided in the Underwriting Agreement to be made by,
and the exercise of all authority thereunder vested in, the
undersigned; provided, however, that the provisions of the
Underwriting Agreement corresponding to Sections 2, 6 and 9 of
the Draft Underwriting Agreement shall not in any material
respect be less favorable to the undersigned or its counsel than
such provisions of the Draft Underwriting Agreement;
iii. sell, assign, transfer and deliver the New Shares to
the Underwriters pursuant to the Underwriting Agreement and
deliver to the Underwriters or instruct the Custodian (as defined
below) to deliver certificates for the New Shares so sold;
iv. take any and all steps deemed necessary or desirable
by the Attorneys-in-Fact in connection with the registration of
the New Shares under the Securities Act, the Securities Exchange
Act of 1934 (the "Exchange Act"), and under the securities or
"blue sky" laws of various states and jurisdictions, including,
without limitation, the giving or making of such undertakings,
representations and agreements and the taking of such other steps
as the Attorneys-in-Fact may deem necessary or advisable;
v. instruct the Company and the Custodian on all
matters pertaining to the sale of the New Shares and delivery of
certificates therefor;
vi. provide, in accordance with the Underwriting
Agreement, for the payment of underwriting discounts and
commissions and transfer taxes, if any, and any other costs or
expenses allocable to or payable by the undersigned in connection
with the offering and sale of the undersigned's New Shares, in
each case as directed in writing by the Attorneys-in-Fact;
provided that this Agreement shall not create any obligation to
pay any such other costs or expenses; and further provided that
this clause (vi) shall not affect any agreement which the Company
and the undersigned may make for the allocation or sharing of
such costs or expenses;
vii. otherwise take all actions and do all things deemed
necessary or advisable or desirable by the Attorneys-in-Fact in
their discretion in connection with the registration of the New
Shares, including the execution and delivery of any documents,
and generally act for and in the name of the undersigned with
respect to the sale of the New Shares to the Underwriters and the
reoffering of the New Shares by the Underwriters as fully as
could the undersigned if then personally present and acting;
viii. to accept payment for the New Shares being sold by
the undersigned, to give receipt for such payment, and to remit
such payment to Republic National Bank of New York ("RNB") in
accordance with its written instructions; and
ix. to return to RNB in accordance with its written
instructions any certificates for any shares of New Common Stock
issued in respect of the Old Shares
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(as defined below) pursuant to the Recapitalization, but not sold
or to be sold to the Underwriters pursuant to the Underwriting
Agreement.
b. Each Attorney-in-Fact may act alone in exercising the
rights and powers conferred on the Attorneys-in-Fact by this Agreement,
and the act of any Attorney-in-Fact shall be the act of the
Attorneys-in-Fact. Each Attorney-in-Fact may determine, in his sole and
absolute discretion, the time or times when, the purposes for which, and
the manner in which, any power herein conferred upon the
Attorneys-in-Fact shall be exercised.
c. The Custodian, the Representatives, the Company and all
other persons dealing with the Attorneys-in-Fact as such may rely and
act upon any writing believed in good faith to be signed by one or more
of the Attorneys-in-Fact.
d. The Attorneys-in-Fact shall not receive any compensation
for their services rendered hereunder.
e. The undersigned acknowledges that the powers of attorney
granted pursuant to this Agreement are granted to secure the
undersigned's performance of this Agreement and the Underwriting
Agreement and therefore are coupled with an interest and are
irrevocable.
2. Appointment of Custodian; Deposit of Shares
a. In connection with and to facilitate the sale of the New
Shares to the Underwriters, the undersigned appoints Republic New York
Securities Corporation as custodian (the "Custodian"), and authorizes
RNB to deposit with the Custodian one or more certificates for shares of
Old Common Stock as set forth on Schedule II hereto (such shares
collectively, the "Old Shares") which, after giving effect to the
Recapitalization, will represent not less than the maximum number of New
Shares to be sold by the undersigned to the Underwriters as set forth
on Schedule I hereto. Each such certificate so deposited is in
negotiable and proper deliverable form accompanied by two or more duly
executed stock powers in blank, bearing the signature of the undersigned
thereon and a medallion guarantee of such signature by an Eligible
Guarantor Institution, as defined by Exchange Act Rule 17Ad-15. The
undersigned authorizes and directs the Custodian, subject to the
instructions of the Attorneys-in-Fact, (a) to hold in custody the
certificate or certificates for the Old Shares deposited herewith and
any related stock powers; (b) to deliver such certificate or
certificates and related stock powers to or at the direction of the
Attorneys-in-Fact in accordance with the terms of the Underwriting
Agreement; (c) to instruct UMB Bank, n.a., in its capacity as Transfer
Agent and Registrar for the New Common Stock, to issue certificates for
all of the New Shares and to deliver such certificates to the Custodian
in exchange for all of such Old Shares; and (d) to return to RNB one or
more new certificates for the shares of New Common Stock issuable
pursuant to the Recapitalization in respect of the Old Shares but which
are not sold or to be sold pursuant to the Underwriting Agreement.
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b. Until the New Shares have been delivered to the
Underwriters against payment therefor in accordance with the
Underwriting Agreement, the undersigned will retain all rights of
ownership with respect to the Old Shares deposited hereunder (together
with any shares of New Common Stock issuable in respect thereof pursuant
to the Recapitalization), including the right to vote and to receive all
dividends and payment thereon, except the right to retain custody of or
dispose of such shares, which right is subject to this Agreement and,
from and after its execution, the Underwriting Agreement.
c. In taking any action requested or directed by the
Representatives under the terms of this Agreement, the Custodian will be
entitled to rely upon a writing which it believes in good faith to have
been signed by a representative of Xxxxxx Xxxxxxx & Co. Incorporated,
with evidence of authority reasonably satisfactory to the Custodian.
d. The Custodian may consult with legal counsel in the event
of any dispute or questions as to the construction of any of the
provisions hereof or its duties hereunder, and it shall incur no
liability and shall be fully protected in acting in accordance with the
opinion and instructions of such counsel.
e. In the event of any disagreement between the undersigned or
the person or persons named in the instructions in this Agreement, or
any other person, resulting in adverse claims and demands being made in
connection with or for any certificates, papers, money or property
involved herein, or affected hereby, the Custodian shall be entitled to
refuse to comply with any demand or claim (and in so refusing to make
any delivery or other disposition of any money, papers or property
involved or affected hereby, the Custodian shall not be or become liable
to the Company, the undersigned, the Underwriters or to any person named
in such instructions for its refusal to comply with such conflicting or
adverse demands) until:
(i) The rights of all of the adverse claimants shall
have been fully and finally adjudicated by a court assuming and
having jurisdiction of the parties and money, certificates,
papers and property involved herein or affected hereby and the
Custodian shall have received a copy of all orders, decrees and
judgments relating to such adjudication from counsel to one or
more of such adverse claimants and shall have been advised in
writing by such counsel that such orders, decrees or judgments
are final, or
(ii) The Custodian shall have received from counsel to
one or more of such adverse claimants a copy of a written
agreement executed by all adverse claimants and providing for the
resolution of all such disagreements.
f. No party to this Agreement shall on or after the date
hereof grant a security interest in any monies, securities or other
property deposited with the Custodian under this Agreement, or otherwise
create a lien, encumbrance or other claim against such monies or
securities, or borrow against the same.
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g. The Custodian may rely upon and shall be fully protected in
relying and acting upon this Agreement and any assignment, instruction,
certificate, instrument, opinion, notice, letter, facsimile,
transmission, telex, holder list, mailing label or other instrument, or
any security delivered to it hereunder.
h. The Custodian may rely and shall be fully protected in
relying and acting upon written instruction which it believes in good
faith to have been signed by the Attorneys-in-Fact, or any one of them,
with respect to any matter (including incomplete or defective documents
submitted hereunder).
i. The Custodian shall keep such records as are reasonably
necessary to document the date of its receipt of the Old Shares, the
amount and date of payments in respect thereof, and the date of delivery
of any unsold shares of New Common Stock to RNB.
j. The Custodian shall retain this Agreement and related
documents delivered to it hereunder until the Termination Date (as
hereinafter defined) and following the Termination Date shall deliver
(i) to RNB, any Old Shares and New Shares (and related stock powers) then
outstanding and not previously delivered to RNB or sold to the
Underwriters pursuant to the Underwriting Agreement and (ii) to the
Company, this Agreement and any other related documents.
k. The Custodian shall have no duties or obligations other
than those specifically set forth in this Agreement and no provision
hereof shall be interpreted to impose on the Custodian any additional
duty or obligation.
3. Sale of Shares and Remitting Net Proceeds
The undersigned authorizes and directs the Attorneys-in-Fact to deliver
or cause the Custodian to deliver certificates for the New Shares being sold in
the Offering by the undersigned to the Representatives as provided in the
Underwriting Agreement, against delivery to or at the direction of the
Attorneys-in-Fact for the account of RNB of the purchase price of the New
Shares, at the time or times and in the funds specified in the Underwriting
Agreement. The undersigned authorizes and directs the Attorneys-in-Fact,
acting on its behalf, to accept and acknowledge receipt of the payment of the
purchase price for the New Shares and to remit promptly such proceeds to RNB in
accordance with written instructions provided by the Custodian after reserving
an amount of such proceeds for transfer taxes, if any, and any other costs or
expenses allocable to or payable by the undersigned.
4. Representations, Warranties and Agreements
The undersigned represents and warrants to, and agrees with, the other
Selling Stockholders, the Company, the Attorneys-in-Fact, the Custodian, and
the Underwriters as follows:
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a. The undersigned has full legal right, power and authority
to enter into and perform this Agreement and the Underwriting Agreement.
b. The undersigned has read the Draft Underwriting Agreement
and understands the same, and agrees that the representations and
warranties to be made by or on behalf of such Selling Stockholder as set
forth in Section 2 of the Underwriting Agreement are incorporated by
reference herein, and the undersigned represents, warrants and covenants
as to itself that each of such representations and warranties is true
and correct as of the date hereof and, except as the undersigned shall
have notified the Attorneys-in-Fact pursuant to paragraph F of the
attached instructions, will be true and correct at all times from the
date hereof through and including the time of the closing of the sale of
the New Shares to the Underwriters on the Closing Date or the Option
Closing Date (each as defined in the Underwriting Agreement), as the
case may be. The undersigned will promptly notify the Attorneys-in-Fact
of any development that would make any such representation and warranty
untrue, and of any default under or breach of this Agreement (or of any
event which, with notice or the lapse of time or both, would constitute
such a default or breach). The undersigned authorizes the
Attorneys-in-Fact, acting on behalf of the undersigned, to affirm the
truth and accuracy of such representations and warranties in connection
with the consummation or implementation of the transactions contemplated
by the Underwriting Agreement and this Agreement.
c. Subject to the security interest of RNB to be released at a
closing of the Offering on the Closing Date or the Option Closing Date,
as the case may be (in each case solely as to Shares then being sold by
the undersigned pursuant to the Underwriting Agreement), the undersigned
has good and marketable title to all of the Old Shares and will on the
Closing Date or the Option Closing Date, as the case may be, have such
title to all New Shares, in each case free and clear of all liens,
encumbrances, equities and claims whatsoever, including, without
limitation, any claim or interest other persons may have in such shares,
and the undersigned now has, and at the time of execution of the
Underwriting Agreement and on the Closing Date and the Option Closing
Date, as the case may be, will have, full right, power and authority to
enter into the Underwriting Agreement and to sell, assign, transfer and
deliver thereunder the New Shares then being sold on such Closing Date
and the Option Closing Date, as the case may be; the undersigned has no
knowledge of any fact that would impair the validity of the
certificates; and upon sale and delivery of such New Shares under the
Underwriting Agreement and payment therefor pursuant thereto, the
Underwriters will acquire good and marketable title to such New Shares
free and clear of any liens, encumbrances, equities and claims
whatsoever, including, without limitation, any claim or interest that
RNB or any other persons may have in such New Shares.
d. The information contained in the Registration Statement
with respect to the undersigned is true and correct.
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e. The undersigned will carefully review each amendment to the
Registration Statement to determine that the information with respect to
the undersigned is true and correct.
f. The undersigned will promptly notify the Company in writing
of any material adverse information with regard to the current or
prospective operations of the Company or its subsidiaries of which the
undersigned learns after the date hereof and which is not disclosed in
the Registration Statement or the most recent amendment thereto received
by the undersigned.
g. The undersigned has completed the information called for in
Schedule I hereto and such information with respect to the undersigned
is complete and correct.
h. Except as otherwise disclosed in Schedule III hereto, the
undersigned is not a member of or directly or indirectly an affiliate of
or associated with any member of the National Association of Securities
Dealers, Inc.
i. Each of the undersigned and RNB acknowledges the "lock-up"
agreements addressed to the Representatives executed (or to be executed)
by the undersigned and by RNB in connection with the Offering.
j. The undersigned has not taken and will not take, directly
or indirectly, any action intended to constitute or which has
constituted, or which might reasonably be expected to cause or result
in, stabilization or manipulation of the price of the New Common Stock;
and, to assure compliance with Regulation M as promulgated by the
Securities and Exchange Commission (the "SEC"), the undersigned will not
make bids for or purchases of, or induce bids for or purchases of,
directly or indirectly, any shares of New Common Stock until the
distribution of all shares being sold in the Offering has been
completed.
k. The undersigned has not distributed and will not distribute
any prospectus or other offering material in connection with the
Offering other than a preliminary prospectus and the Prospectus or other
material permitted by the Securities Act, in each case in a form
approved for such use by the Company and Xxxxxx Xxxxxxx & Co.
Incorporated.
l. Upon execution and delivery of the Underwriting Agreement
by any of the Attorneys-in-Fact on behalf of the undersigned, the
undersigned agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter or the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, and to contribute to amounts paid as a result of losses,
claims, damages, liabilities and expenses, to the full extent provided
in, and shall have the rights and duties provided in the Underwriting
Agreement. The undersigned understands that the information set forth
in Schedules I and II hereto is being provided for use in the
Registration Statement, any preliminary prospectus and the Prospectus.
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m. Upon execution and delivery of the Underwriting Agreement
by the Attorneys-in-Fact on behalf of the undersigned in accordance with
this Agreement, the undersigned agrees to be bound by and to perform
each of the covenants and agreements of the undersigned as a Selling
Stockholder in the Underwriting Agreement including without limitation,
the indemnification and contribution obligations thereunder.
n. The undersigned agrees to deliver to the Attorneys-in-Fact
such documentation as the Attorneys-in-Fact, the Company or the
Underwriters or any of their respective counsel may reasonably request
in order to effectuate any of the provisions hereof or of the
Underwriting Agreement, all of the foregoing to be in form and substance
satisfactory in all respects to the Attorneys-in-Fact.
The foregoing representations, warranties and agreements are made for the
benefit of, and may be relied upon by, the other Selling Stockholders, the
Attorneys-in-Fact, the Company, the Custodian, the Underwriters and their
respective representatives, agents and counsel and are in addition to, and not
in limitation of, the representations, warranties and agreements of the Selling
Stockholders in the Underwriting Agreement.
5. Irrevocability of Instruments; Termination of this Agreement
a. This Agreement, the deposit of Old Shares pursuant hereto
and all authority hereby conferred, is granted, made and conferred
subject to and in consideration of (i) the interests of the
Attorneys-in-Fact, the Underwriters, the Company and the other Selling
Stockholders who may become parties to the Underwriting Agreement in and
for the purpose of completing the transactions contemplated hereunder
and by the Underwriting Agreement and (ii) the completion of the
registration of certain shares of New Common Stock pursuant to the
Registration Statement and the other acts of the above-mentioned parties
from the date thereof to and including the execution and delivery of the
Underwriting Agreement in anticipation of the sale of such shares of New
Common Stock, including the New Shares, to the Underwriters; and the
Attorneys-in-Fact are hereby further vested with a right and interest in
and to the Old Shares, together with any New Shares issuable in respect
thereof pursuant to the Recapitalization, in each case for the purpose
of irrevocably empowering and securing to them authority sufficient to
consummate said transactions. Accordingly, this Agreement shall be
irrevocable prior to December 31, 1997, and shall remain in full force
and effect until such date. The undersigned further agrees that this
Agreement shall not be terminated by operation of law or upon the
occurrence of any event whatsoever, including the death, disability or
incompetence of any controlling person of the undersigned or of any
other Selling Stockholder or upon any dissolution, winding up,
distribution of assets or other event affecting the legal existence of
the undersigned or of any other Selling Stockholder that is not a
natural person. This Agreement shall inure to the benefit of, and shall
be binding upon, the undersigned and the heirs, executors,
administrators, successors and assigns of the undersigned, as the case
may be. If any event referred to in the second preceding sentence shall
occur, whether with or without notice thereof to the Attorneys-in-Fact
or the Custodian, any of the Underwriters or any other person, the
Attorneys-in-Fact and the
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Custodian shall nevertheless be authorized and empowered to deliver the
New Shares in accordance with the terms and provisions of the
Underwriting Agreement and this Agreement and provide for the
distribution of the proceeds therefrom as if such event had not
occurred.
b. Notwithstanding anything to the contrary contained in
Section 5(a) above, if the sale of all of the New Shares contemplated by
this Agreement is not completed by December 31, 1997 or if, prior to
that date, the Custodian receives written notice from the Company or
Xxxxxx Xxxxxxx & Co. Incorporated of the termination or abandonment of
the Offering, this Agreement shall terminate as of the earlier of such
date or of the date of the Custodian's receipt of such written notice
(the earlier of such dates, the "Termination Date"); subject, however,
(i) to Section 6 hereof and (ii) to all lawful action of the
Attorneys-in-Fact and the Custodian done or performed pursuant hereto
prior to the Termination Date, and thereafter the Attorneys-in-Fact and
the Custodian shall have no further responsibilities or liabilities to
the undersigned except to return promptly to RNB all certificates for
Old Shares or shares of New Common Stock issued in respect thereof
pursuant to the Recapitalization, as applicable, not purchased by the
Underwriters on or prior to the Termination Date.
6. Liability and Indemnification of the Attorneys-in-Fact and Custodian
a. The Attorneys-in-Fact assume no responsibility or liability
to the undersigned or to any other person, other than to advise the
Custodian as to the amount of the net proceeds from the sale of the New
Shares to be remitted to RNB.
b. The Custodian assumes no responsibility or liability to the
undersigned or to any other person, other than to hold the Old Shares,
together with any shares of New Common Stock issuable in respect thereof
pursuant to the Recapitalization, and to remit promptly to RNB the
proceeds from the sale of the New Shares and to return to RNB in
accordance with the provisions hereof any other shares deposited with
the Custodian pursuant to the terms of this Agreement or issued in
respect thereof pursuant to the Recapitalization.
c. The undersigned agrees to indemnify and hold harmless the
Attorneys-in-Fact and the Custodian, and their respective officers,
agents, successors, assigns and personal representatives with respect to
any act or omission of or by any of them in good faith and any cost,
expense, suit, liability or claim that may arise in connection with any
and all matters contemplated by this Agreement or the Underwriting
Agreement.
d. This Section 6 shall survive termination of this Agreement.
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7. Interpretation
a. The representations, warranties and agreements of the
undersigned contained herein and in the Underwriting Agreement shall
survive the sale and delivery of the New Shares and the termination of
this Agreement.
b. This Agreement shall be governed by and construed in
accordance with the laws of the State of Missouri, without giving effect
to any choice of law or conflict of laws rules that would cause the
application of laws of other jurisdictions other than Missouri, and the
corporate law of the State of Delaware shall govern all issues and
questions concerning the relative rights of the Company and its
stockholders, in their capacity as stockholders.
c. Wherever possible each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable
law, but if any such provision shall be prohibited by or invalid under
applicable law, it shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
d. The use of the masculine gender in this Agreement includes
the feminine and neuter, and the use of the singular includes the plural
(as well as the converse), wherever appropriate.
e. This Agreement may be executed in separate counterparts,
each of which shall constitute an original, but all of which together
shall constitute one instrument.
8. Agreement Drafted by Company's Counsel
The undersigned acknowledges that the Company's counsel, Xxxxxxxxxxxx
Xxxx & Xxxxxxxxx, drafted this Agreement on behalf of and in the course of its
representation of the Company, and that:
a. A conflict may exist between its interests and those of the
Company and the other Selling Stockholders.
b. The undersigned has been advised by the Company's counsel
to obtain the advice of independent counsel.
c. The undersigned has obtained the advice of independent
counsel.
d. The undersigned has not relied on any representations from
the Company's counsel regarding the consequences of this Agreement,
except to the extent expressly set forth in writing by the Company's
counsel to the undersigned.
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9. Notices
Any notice required to be given pursuant to this Agreement shall be
deemed given if in writing and delivered in person, or if given by facsimile
receipt confirmed by telephone and if subsequently confirmed by letter, (i) to
either Xxxxxxx X. Xxxxxxx or Xxxxx Xxxxxx, as Attorneys-in-Fact, c/o American
Italian Pasta Company, 0000 Xxxxxxx Xxx, Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
(fax: (000) 000-0000); (ii) to Republic New York Securities Corporation, as
Custodian, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, c/o Xx. Xxxxxx Xxxxxxx
(facsimile: (000) 000-0000), or to such other address as the Custodian shall
have specified in a written notice duly given to the undersigned; or (iii) to
the undersigned at the address set forth below.
* * * * *
IN WITNESS WHEREOF, the undersigned has executed this Custody Agreement
and Power of Attorney as of the date first above written.
Signature of Selling Stockholder XXXXXXXX HOLDINGS, L.P.
guaranteed by:
By: XXXXXXXX HOLDINGS, INC.,
its general partner
--------------------------------
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxx, President
Name and address to which notices
shall be sent:
Xxxxxxxx Holdings, L.P.
c/o Xxxxxxx X. Xxxxxxxx
Xxxxxxxx'x Pet Pasta Products, Inc.
00 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxx 00000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxx, P.C.
0000 Xxxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
(NOTE: The signature must bear a medallion guarantee by an Eligible Guarantor
Institution, as defined by SEC Rule 17Ad-15.)
- 12 -
13
ACCEPTED by the Attorneys-in-Fact ACCEPTED by the Custodian as of the
as of the date first above set forth: date above set forth:
REPUBLIC NEW YORK SECURITIES
/s/ Xxxxxxx X. Xxxxxxx CORPORATION, as Custodian
----------------------------- c/o Xxxxxx Xxxxxxx
Xxxxxxx X. Xxxxxxx 000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
/s/ Xxxxx X. Xxxxxx By:
----------------------------- -------------------------------------
Xxxxx X. Xxxxxx
Its:
-------------------------------------
ACKNOWLEDGED as to Sections 1(e), 2(a),
3, 4(c),4(i) and 6 as of the date
first above set forth:
REPUBLIC NATIONAL BANK OF NEW YORK
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
By:
-------------------------------------
Its:
-------------------------------------
SEE THE ATTACHED INSTRUCTIONS
- 13 -
14
INSTRUCTIONS
(For completing the Custody Agreement and Power of Attorney)
A. You have been sent seven copies of the Custody Agreement and Power of
Attorney (the "Agreement"). Please complete and return six copies of the
Agreement and stock power(s) as set forth in paragraph D below. One
completed copy of the Agreement and your stock powers will be retained by
the Custodian and one completed copy of the Agreement will be delivered to
each of the Attorneys-in-Fact, the Representatives, and you.
B. Complete the information required by Schedules I, II and III attached
hereto.
C. Each copy of the Agreement and each stock power deposited hereunder must
be executed by you with your signature on the Agreement and the
accompanying stock power(s) and such signature must bear a medallion
guarantee by an Eligible Guarantor Institution. Please sign the stock
powers and the Agreement exactly as your name appears on your stock
certificate(s).
D. Please promptly return (i) at least two stock powers for each stock
certificate listed on Schedule II and (ii) all six executed copies of the
completed Agreement by hand delivery or mail to:
Republic New York Securities Corporation, as Custodian
c/o Xx. Xxxxxx Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
If any stock certificates are sent by mail, registered mail should be used
and the executed stock powers should be sent under separate cover from the
stock certificate(s).
E. If any stock certificate that Republic National Bank of New York ("RNB")
submits on your behalf represents (after giving effect to the
Recapitalization) a greater number than the number of New Shares to be
sold by you, the Custodian will cause to be delivered to RNB, as pledgee,
a stock certificate for the excess number of shares of New Common Stock as
soon as practicable after Closing, such certificate to be registered in
the same name as the deposited stock certificate.
F. Please contact Xxxxxxx X. Xxxxxxx or Xxxxx X. Xxxxxx if any information or
representation included in the foregoing Agreement should change at any
time prior to termination of a 30-day period commencing on the date of the
final Prospectus relating to the Offering.
- 14 -
15
SCHEDULE I
XXXXXXXX HOLDINGS, L.P.
(Name of Selling Stockholder)
Indicate the nature of any position, office or other material
relationship which you have had with the Company or any of its
predecessors or affiliates during the past three years (if none,
please so indicate):
Xxxxxxx X. Xxxxxxxx, the president of the corporate general
partner of the Selling Stockholder and the limited partner of
the Selling Stockholder, has been a director of the Company for
more than the past three years.
Number of shares of Old Common Stock beneficially owned ( before
giving effect to the Recapitalization):
156,530
Maximum number of shares of New Common Stock proposed to be offered by
you (after giving effect to the Recapitalization):
630,000
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Initials
16
SCHEDULE II
XXXXXXXX HOLDINGS, L.P.
(Name of Selling Stockholder)
Certificate(s) for Shares of Old Common Stock of
American Italian Pasta Company
deposited under
Custody Agreement and Power of Attorney
NUMBER OF SHARES
OF OLD COMMON STOCK NUMBER OF SHARES FROM THE
CERTIFICATE NUMBER REPRESENTED BY CERTIFICATE CERTIFICATE TO BE SOLD
26 154,965
---------------------------
27 1,565
---------------------------
Total:
---------------------------
*If no indication is made as to the certificates from which securities to be
sold shall be allocated, then selection will be made at the Custodian's
discretion. The Attorneys-in-fact do not have the power to sell a greater
number of securities than is listed in this column, although they may sell a
lesser number.
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Initials
17
SCHEDULE III
XXXXXXXX HOLDINGS, L.P.
(Name of Selling Stockholder)
Please describe below any direct or indirect affiliation or association
with any member of the National Association of Securities Dealers, Inc.
------------------------------------------------------------------------
------------------------------------------------------------------------
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Initials
