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EXHIBIT 10.31.1
FORM OF
AMENDMENT NO. 1 TO THE
MANAGEMENT STOCKHOLDER'S AGREEMENT
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(NON-EXECUTIVES)
This Amendment No. 1 to the Management Stockholder's Agreement (this
"Agreement") is entered into as of ________________________ between KEEBLER
FOODS COMPANY, a Delaware corporation (the "Company"), and
_____________________ (the "Investor") (the Company and the Investor being
hereinafter collectively referred to as the "Parties").
RECITALS
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Certain stockholders of the Company ("Selling Stockholders") propose
to sell a portion of their shares of the Company's common stock (the "Common
Stock") in an initial public offering under a Registration Statement on Form
S-1 (File No. 333-42075) filed with the Securities and Exchange Commission (the
"IPO"). In such connection the Company (formerly INFLO Holdings Corporation)
and the Investor, who are parties to the Management Stockholders' Agreement
("Original Agreement"), dated [___________, 1996], agree to amend the Original
Agreement as follows:
AGREEMENT
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1. Upon the occurrence of the event described in Section 3 of
this Agreement:
(a) Sections 3, 5, 6, 7, 8, 11, 12, 15, 18, 21, 23, and
25 of the Original Agreement are hereby deleted in
their entirety and are of no further force or effect.
(b) Section 10 of the Original Agreement is hereby
amended by deleting said section in its entirety and
in lieu thereof, the Investor shall be entitled to
the "incidental registration rights" set forth on
Annex A hereto.
(c) The Investor's rights under the Sales Participation
Agreement dated as of May 10, 1996 are hereby
terminated and such termination is affirmed and
acknowledged by the signatures of Flowers Industries,
Inc. and Artal Luxembourg S.A. on this Amendment No.
1.
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(d) Section 2(e) of the Original Agreement is hereby
amended by deleting said Section in its entirety.
(e) Section 4 of the Original Agreement is hereby amended
by deleting said Section in its entirety and
substituting in lieu thereof a new Section 4, reading
as set forth on Annex C hereto.
(f) Section 22 of the Original Agreement is hereby
amended by deleting said Section in its entirety and
substituting in lieu thereof a new Section 22,
reading as set forth in Annex D hereto.
(g) Section 25 of the Original Agreement is hereby
amended by deleting said section in its entirety and
substituting in lieu thereof a new Section 25,
reading as set forth in Annex E hereto.
(h) Section 26(a) of the Original Agreement is hereby
amended by deleting said Section in its entirety and
substituting in lieu thereof a new Section 26(a),
reading as set forth on Annex F hereto.
2. The Investor hereby acknowledges that the managing
underwriters of the IPO have advised the Company that in their view no shares
of the Investor may be registered in the IPO without an adverse effect on the
offering and, thus, pursuant to Section 10(c)(ii) of the Original Agreement
(prior to the effectiveness of the amendment contained in Section 1(b) above),
the Investor may not register any shares in the IPO. Accordingly, the Investor
has no "piggyback registration rights" (including, not by way of limitation,
any rights to notice) in connection with the IPO, including, not by way of
limitation, any rights which are pursuant to Section 10 of the Original
Agreement. The Investor further acknowledges that pursuant to Section 2(e) of
the Original Agreement (prior to the effectiveness of the amendment contained
in Section 1(d) above) that he is bound by the holdback period required by the
managing underwriters of the IPO.
3. The terms and provisions of Section 1 of this Agreement will
not be effective until the sale of Common Stock pursuant to an IPO.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written.
KEEBLER FOODS COMPANY
By:__________________________________
Name:
Title:
_____________________________________
[Investor]
Address
As to Paragraph 1(c) and 1(d) only
Affirmed and Acknowledged
_______________________________
Flowers Industries, Inc.
_______________________________
Artal Luxembourg S.A.
As to Paragraph 1(e) only
Affirmed and Acknowledged
______________________________
Flowers Industries, Inc.
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ANNEX B
INTENTIONALLY LEFT BLANK
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ANNEX C
REVISED SECTION 4
4. Right of First Refusal.
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Except for transfers permitted by clauses (x), (y) and (z) of
Section 2(a), if at any time after the IPO the Purchaser desires to transfer
any or all of his shares of Stock, the Purchaser shall notify the Company and
Flowers Industries, Inc. ("Flowers") in writing of his wish to make such
transfer (the "Offer"). The Purchaser's notice shall contain an irrevocable
offer to sell such shares of Stock to the Company and Flowers (in the manner
set forth below) at a purchase price equal to the average of the closing
trading prices of the Company's Common Stock on the New York Stock Exchange (or
if such shares are not traded on the New York Stock Exchange, the closing
trading prices of such security on the principal national securities exchange
or the Nasdaq Stock Market on which such securities are listed) on the day that
the Company and Flowers receives the Offer and on the day that the Company or
Flowers accepts the Offer (or the next succeeding trading day if either such
day is not a trading day) (the "Average Market Price"). At any time within the
next succeeding business day after the date of the receipt by the Company and
Flowers of the Purchaser's notice, the Company and Flowers shall have the right
and option to purchase, or to arrange for a third party to purchase, any or all
of the shares of Stock covered by the Offer, by notifying the Purchaser. The
purchase of the shares shall be effectuated within 3 business days by
delivering a certified bank check or checks in the appropriate amount to the
Purchaser at the principal office of the Company against (i) delivery of
certificates or other instruments representing the shares of the Stock so
purchased, appropriately endorsed by the Purchaser or (ii) such other
instructions to transfer such shares from an account held by Purchaser to
accounts designated by Flowers or the Company, as appropriate. If by 11:59
p.m. of the end of such next succeeding business day, neither the Company nor
Flowers has accepted the Offer in the manner set forth above, the Purchaser
may, during the succeeding 30 day period, transfer any or all of the shares of
Stock covered by the Offer. If, at the end of the 30 day period, the Purchaser
has not completed the transfer of such shares of the Stock as aforesaid, all
the restrictions on sale, transfer or assignment contained in this Agreement
shall again be in effect with respect to such shares of the Stock. If the
Offer is accepted, Flowers shall have the first right to purchase the shares
covered by the Offer, and then the Company shall have the right to purchase any
shares not purchased by Flowers. Notwithstanding the foregoing, the Purchaser
shall not be required to sell shares pursuant to this Section 4 if such sale
would have the result of not being treated as a distribution in part or full
payment in exchange for stock pursuant to Section 302 of the Internal Revenue
Code of 1986, as amended; provided, however, the parties also acknowledge that
Flowers would still have the right to purchase the shares if such favorable tax
treatment would result from its purchase in lieu of a purchase by the Company.
No transfer of any shares in violation of this Section 4 shall be made or
recorded on the books of the Company and any such transfer shall be void and of
no effect. In order to notify Flowers and the
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Company of the Offer, Purchaser shall give the following notice to each of
them, by hand delivery or facsimile, to the General Counsels of each of them at
the addresses set forth in Section 25(a):
"Pursuant to Section 4 of that certain
Management Stockholder's Agreement,
between Keebler Foods Company (the
"Company") and the undersigned, the
undersigned hereby notifies you of its
irrevocable Offer (as defined in said
Section) to sell to either the Company
or Flowers Industries,_____ shares of
stock of the Company.
By:______________________
Date:_____________________"
In order to accept the Offer, either Flowers or the Company shall either orally
notify the Purchaser of its acceptance (and shall deliver the following notice
as soon as practicable thereafter) or shall deliver the following notice to the
Purchaser at the address set forth in Section 25(b):
"Pursuant to Section 4 of that certain
Management Stockholder's Agreement,
between Keebler Foods Company (the
"Company") and you, the undersigned has
accepted your Offer to purchase ____
shares of stock of the Company.
By:____________________
[Flowers Industries, Inc.]
[Keebler Foods Company]
Date:___________________"
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ANNEX D
REVISED SECTION 22
22. Applicable Law.
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The laws of the state of Delaware shall govern the
interpretation, validity and performance of the terms of this Agreement,
regardless of the law that might be applied under principles of conflicts of
law. Any suit, action or proceeding against the Company, with respect to this
Agreement, or any judgment entered by any court in respect of any thereof, may
be brought in any court of competent jurisdiction in the States of Delaware or
Illinois, as the Company may elect in its sole discretion, and the Purchaser
hereby submits to the non-exclusive jurisdiction of such courts for the purpose
of any such suit, action, proceeding or judgment. By the execution and
delivery of this Agreement, the Purchaser appoints The Corporation Trust
Company, at its office in Chicago, Illinois or Wilmington, Delaware, as the
case may be, as his agent upon which process may be served in any such suit,
action or proceeding. Service of process upon such agent, together with notice
of such service given to the Purchaser in the manner provided in Section 25
hereof, shall be deemed in every respect effective service of process upon him
in any suit, action or proceeding. Nothing herein shall in any way be deemed
to limit the ability of the Company to serve any such writs, process or
summonses in any other manner permitted by applicable law or to obtain
jurisdiction over the Purchaser, in such other jurisdictions and in such
manner, as may be permitted by applicable law. The Purchaser hereby
irrevocably waives any objections which he may now or hereafter have to the
laying of the venue of any suit, action or proceeding arising out of or
relating to this Agreement brought in any court of competent jurisdiction in
the States of Delaware or Illinois, and hereby further irrevocably waives any
claim that any such suit, action or proceeding brought in any such court has
been brought in any inconvenient forum. No suit, action or proceeding against
the Company with respect to this Agreement may be brought in any court,
domestic or foreign, or before any similar domestic or foreign authority other
than in a court of competent jurisdiction in the States of Delaware or
Illinois, and the Purchaser hereby irrevocably waives any right which he may
otherwise have had to bring such an action in any other court, domestic or
foreign, or before any similar domestic or foreign authority. The Company
hereby submits to the jurisdiction of such court for the purpose of any such
suit, action or proceeding.
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ANNEX E
REVISED SECTION 25
25. Notices.
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All notices and other communications provided for herein
(except for the notices set forth in Sections 2(e) and 4, in which case the
terms of such Sections shall govern), shall be in writing and shall be deemed
to have been duly given if delivered by hand (or by overnight courier or
facsimile), to the Party to whom it is directed:
(a) If to the Company, to it at the following address:
Keebler Foods Company
000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Chief Executive Officer
Fax No.:______________________
with copies to:
The General Counsel of the Company
at the above address.
and to:
Flowers Industries, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: General Counsel
Fax No.:_____________________
(b) If to the Purchaser, to him at the address set forth
below under his signature;
or at such other address as either party shall have
specified by notice in writing to the other.
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ANNEX F
REVISED SECTION 26(a)
(a) In consideration of the Company entering into this Agreement with the
Purchaser, the Pruchaser hereby agrees effective as of the Purchase Date, for
so long as the Purchaser is employed by the Company or one of its subsidiaries
(the "Noncompete Period"), the Purchaser shall not, directly or indirectly,
engage in the production, sale or distribution of any food product produced,
sold or distributed by the Company or its subsidiaries on the date hereof or
during the Noncompete Period (except for a food product that the Company only
packages under a co-packing arrangement) anywhere in North America where the
Company or its subsidiaries is doing business other than through the
Purchaser's employment with the Company or any of its subsidiares. The
Noncompete Period shall be extended beyond the termination of the Purchaser's
employment, with the Company or its subsidiaries for up to the earlier of (i)
the third anniversary of the IPO or (ii) an additional one year period from the
date of termination of employment, for so long as the Company, at its option
elects, or is required under the Company's Change of Control Policy, to make
payments to Purchaser equal to the amounts and at the times that Purchaser
would have been entitled to receive payments under the Company's Change of
Control Policy as if such termination occurred within two years after a "change
of control" (as defined in said Change of Control Policy), regardless of
whether there has been an actual "change of control" as of the time of such
termination of employment; provided, however, that if Purchaser is not
entitled to payments under the Company's Change of Control Policy), then the
noncompete provisions of this Section 26(a) shall still apply. For purposes of
this Agreement, the phrase "directly or indirectly engage in" shall include any
direct or indirect ownership or profit participation interest in such
enterprise, whether as an owner, stockholder, partner, joint venturer or
otherwise, and shall include any direct or indirect participation in such
enterprise as a consultant, licensor of technology or otherwise. For purposes
of this Section 26(a), the Company's "Change of Control Policy" shall mean the
Keebler Foods Company Policy Regarding Termination Benefits For Certain
Executives In the Event of a Change of Control, as such policy may be, from
time to time, amended, modified, supplemented or replaced with a different
policy covering the same subject matter.
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