Attached files
file | filename |
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EX-2.1 - EX-2.1 - SNYDER'S-LANCE, INC. | g24155exv2w1.htm |
EX-10.1 - EX-10.1 - SNYDER'S-LANCE, INC. | g24155exv10w1.htm |
8-K - FORM 8-K - SNYDER'S-LANCE, INC. | g24155e8vk.htm |
Exhibit 10.2
EXECUTION
VERSION
STANDSTILL AGREEMENT
July 21, 2010
This Standstill Agreement, dated as of July 21, 2010 (this Agreement), is by and among
Lance, Inc., a North Carolina corporation (Lance), Michael A. Warehime, individually (MAW) and
Patricia A. Warehime, individually (PAW).
WHEREAS, Lance, Snyders of Hanover, Inc., a Pennsylvania corporation (Snyders), and Lima
Merger Corp., a Pennsylvania corporation and a wholly owned Subsidiary of Lance (Merger Sub),
have entered into an Agreement and Plan of Merger, dated the date hereof (as amended, modified or
otherwise supplemented from time to time, the Merger Agreement), pursuant to which Merger Sub
will merge with and into Snyders (the Merger);
WHEREAS, as of the date hereof, MAW is the Beneficial Owner of 84,965 shares of Class A Common
Stock of Snyders, par value $100.00 per share, and PAW is the Beneficial Owner of 7,350 shares of
Class A Common Stock of Snyders, par value $100.00 per share (collectively, with any other
Snyders Shares which MAW or PAW become the Beneficial Owner of prior to the termination of this
Agreement, the MAW/PAW Snyders Shares);
WHEREAS, upon consummation of the Merger, MAW and PAW shall receive Lance Shares in exchange
for his or her MAW/PAW Snyders Shares (such Lance Shares received in exchange for Snyders Shares
upon consummation of the Merger, together with all other Lance Shares which MAW or PAW is the
record owner or Beneficial Owner of at any time, the MAW/PAW Lance Shares); and
WHEREAS, as a condition to Lances willingness to enter into the Merger Agreement, Lance has
required that MAW and PAW enter into this Agreement and, in order to induce Lance to enter into the
Merger Agreement, MAW and PAW are willing to enter into this Agreement.
NOW, THEREFORE, intending to be legally bound, each of the parties hereby agree as follows:
1. Certain Definitions.
For the purposes of this Agreement, capitalized terms used and not otherwise defined herein
shall have the respective meanings ascribed to such terms in the Merger Agreement. As used in this
Agreement, the following terms have the respective meanings set forth below.
Beneficial Owner and Beneficial Ownership and words of similar import have the meaning
assigned to such terms in Rule 13d-3 and Rule 13d-5 promulgated under the Exchange Act and a
Persons Beneficial Ownership of securities shall be calculated in accordance with the provisions
of such rules; provided, that a Person shall be deemed to have Beneficial Ownership of all
securities that such Person has a right to acquire without regard to the 60 day limitation in such
rule.
Family Member includes, with respect to MAW or PAW, any child, stepchild, grandchild,
parent, stepparent, grandparent, spouse, former spouse, mother-in-law, father-in-law, son-in-law,
daughter-in-law, including adoptive relationships, any person sharing MAWs or PAWs household
(other than a tenant or employee), a trust in which these persons have more than fifty percent of
the beneficial interest, a foundation in which these persons (or MAW or PAW) control the management
of assets, and any other entity in which these persons (or MAW or PAW) own more than fifty percent of
the voting interests.
2. Standstill in Respect of MAW/PAW Lance Shares.
(a) MAW and PAW hereby agree that, from and after the date hereof until the third anniversary
of the Effective Time of the Merger, he or she shall not, directly or indirectly, unless
specifically agreed to in writing by a majority of the independent members of the board of
directors of Lance or expressly contemplated by the terms of this Agreement:
(i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or
otherwise, any securities or direct or indirect rights to acquire Lance Shares or any other
securities of Lance, or any material assets of Lance or any Subsidiary or division thereof;
provided, that following the Effective Time, MAW and PAW shall be permitted to acquire
Lance Shares (A) pursuant to exercise of stock options granted to MAW and PAW, (B) directly from a
Family Member or (C) by reinvesting dividends received in respect of MAW/PAWs Lance Shares in
accordance with applicable securities Laws and Lances internal policies related thereto;
provided, further, that any such reinvesting of dividends shall be done outside of
any dividend reinvestment program sponsored by Lance. For the avoidance of doubt, any compensation
of MAW and PAW from Lance (whether in cash, other assets or Lance stock or stock options) shall not
be prohibited by this Agreement, but any Lance Shares received directly or indirectly as
compensation of MAW and PAW shall be subject to the terms of this Agreement;
(ii) Transfer, or enter into any contract, option or other agreement with respect to, or
consent to, a Transfer of, any or all of the MAW/PAW Lance Shares; provided, that (A) if
MAW or PAW is an affiliate (as such term is defined in Rule 144 of the Securities Act (Rule
144)) of Lance, such person that is an affiliate shall be permitted to Transfer any of its
MAW/PAW Lance Shares in a Transfer pursuant to Rule 144 or, if MAW or PAW is not an affiliate (as
such term is defined in Rule 144) of Lance, then such person shall be permitted to Transfer any of
its MAW/PAW Lance Shares to the same extent as would be permitted pursuant to Rule 144 if such
person was an affiliate of Lance pursuant to Rule 144 and (B) each of MAW and PAW may Transfer
the MAW/PAW Lance Shares held by such person to a Family Member of such person for estate planning
purposes; provided, further, that each transferee pursuant to clause (B) shall
agree in writing to be bound by the terms of this Agreement (solely with respect to the MAW/PAW
Lance Shares transferred pursuant to this clause (B)) upon or prior to the consummation of such
Transfer; or
(iii) take any action contrary to the following aspects of Snyders and Lances proposed
governance structure following the Merger as reflected in Exhibit C to the Merger
Agreement: (A) reducing the total number of directors from 16 in 2010 to 14 in 2011 and to 12 in
2012, (B) the re-election of those Lance directors who are eligible for re-election in 2011 and (C)
the re-election of those Lance directors who are eligible for re-election in 2012.
(b) Notwithstanding anything to the contrary contained in this Agreement, in no event shall
the aggregate Beneficial Ownership of Lance Shares by MAW and PAW exceed thirty percent (30%) of
the issued and outstanding Lance Shares at any time.
3. Representations and Warranties of MAW.
MAW and PAW hereby represent and warrant to Lance as follows:
(a) No Conflicts. Neither the execution and delivery of this Agreement by MAW and
PAW, nor the consummation by MAW and PAW of the transactions contemplated hereby, will (i) conflict
with or result in any breach of the organizational documents of Snyders; (ii) require any Permit from
any or Governmental Body or any authorization, consent or approval from any other Person; (iii)
result in, or give rise to, a violation or breach of or a default under any of the terms of any
material contract,
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understanding, agreement or other instrument or obligation to which MAW and/or
PAW is a party or by which MAW and PAW or any of the MAW/PAW Snyders Shares or MAW and PAW assets
may be bound, or (iv) violate any applicable Law, except, with respect to any of the foregoing
clauses (i) through (iv), as does not and could not reasonably be expected to impair MAWs or PAWs
ability to perform its obligations under this Agreement.
(b) Reliance by Lance. MAW and PAW understand and acknowledge that Lance is entering
into the Merger Agreement in reliance upon the execution and delivery of this Agreement by MAW and
PAW.
4. Representations and Warranties of Lance.
Lance hereby represents and warrants to the MAW and PAW as follows:
(a) Corporate Organization. Lance is a corporation duly organized, validly existing
and in good standing under the Laws of its jurisdiction of incorporation.
(b) Authority Relative to This Agreement. Lance has the requisite corporate power and
authority to execute and deliver this Agreement and to consummate the transactions contemplated
hereby. This Agreement and the consummation by Lance of the transactions contemplated hereby have
been duly and validly authorized by the board of directors of Lance, and no other corporate
proceedings on the part of Lance are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly executed and delivered
by Lance and, assuming that this Agreement constitutes the valid and binding agreement of the MAW
and PAW, constitutes the valid and binding agreement of Lance, enforceable against Lance in
accordance with its terms, except that such enforceability may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium or other similar Laws now or hereafter in effect relating to
creditors rights generally, and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law).
(c) No Conflicts. Neither the execution and delivery of this Agreement by Lance, nor
the consummation by Lance of the transactions contemplated hereby, will (i) conflict with or result
in any breach of the Certificate of Incorporation or the Bylaws of Lance; (ii) require any Permit
from any Governmental Body; (iii) result in, or give rise to, a violation or breach of or a default
under any of the terms of any material contract, understanding, agreement or other instrument or
obligation to which Lance is a party, or (iv) violate any applicable Law, except, with respect to
any of the foregoing clauses (i) through (iv), as does not and could not reasonably be expected to
impair Lances ability to perform its obligations under this Agreement.
5. Termination.
(a) Subject to Section 5(b), this Agreement shall terminate and neither Lance nor MAW or PAW
shall have any rights or obligations hereunder upon the earliest to occur of: (i) the termination
of this Agreement by mutual written consent of Lance, MAW and PAW, (ii) the termination of the
Merger Agreement in accordance with its terms, and (iii) the third anniversary of the Effective
Time of the Merger.
(b) Notwithstanding Section 5(a), (i) termination of this Agreement shall not prevent any
party hereunder from seeking any remedies (at Law or in equity) against any other party hereto for
such partys breach of any of the terms of this Agreement, and (ii) Sections 4 and 6(b) through
6(p), inclusive, of this Agreement shall survive the termination of this Agreement.
6. Miscellaneous.
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(a) Publication. MAW and PAW hereby authorize Lance to publish and disclose in the
Joint Proxy Statement, the Form S-4 and any other Filing his and her identity and ownership of
Snyders Shares and the nature of his and her commitments, arrangements and understandings pursuant
to this Agreement.
(b) Appraisal Rights. To the extent permitted by applicable Law, MAW and PAW hereby
waive any rights of appraisal or rights to dissent from the Merger that he or she may have under
applicable Law.
(c) Further Actions. Each of the parties hereto agrees that it will use its
reasonable best efforts to do all things necessary to effectuate this Agreement.
(d) Waivers. No action taken pursuant to this Agreement, including any investigation
by or on behalf of any party hereto, nor any failure or delay on the part of any party hereto in
the exercise of any right hereunder, shall be deemed to constitute a waiver by the party taking
such action of compliance of any representations, warranties, covenants or agreements contained in
this Agreement. The waiver by any party hereto of a breach of any provision hereunder shall not
operate or be construed as a waiver of any prior or subsequent breach of the same or any other
provision hereunder.
(e) Counterparts. For the convenience of the parties hereto, this Agreement may be
executed in any number of counterparts (including by facsimile or electronic transmission), each
such counterpart being deemed to be an original instrument, and all such counterparts shall
together constitute the same agreement.
(f) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania, without regard to the principles of conflict of
laws thereof.
(g) Jurisdiction; Waiver of Jury Trial.
(i) Each of the parties hereto hereby irrevocably submits to the exclusive jurisdiction of any
Pennsylvania state or federal court of appropriate jurisdiction in any action arising out of or
relating to this Agreement and hereby irrevocably agrees that all claims in respect of such action
may be heard and determined in such Pennsylvania state or federal court. Each of the parties
hereto hereby irrevocably waives, to the fullest extent it may effectively do so, the defense of an
inconvenient forum to the maintenance of such action. The parties further agree, to the extent
permitted by applicable law, that any final and nonappealable judgment against any of them in any
action referred to above shall be conclusive and may be enforced in any other jurisdiction within
or outside the United States by suit on the judgment, a certified copy of which shall be conclusive
evidence of the fact and amount of such judgment.
(ii) EACH OF LANCE, MAW AND PAW HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT
OF OR RELATING TO THIS AGREEMENT.
(h) Specific Performance. MAW and PAW recognize and acknowledge that a breach of
covenants or agreements contained in this Agreement will cause Lance to sustain irreparable damage
for which Lance would not have an adequate remedy at law for money damages. Therefore, MAW and PAW
agree that, in the event of any such breach or threatened breach, Lance shall be entitled to seek
and obtain (a) a decree or order of specific performance to enforce the observance and performance
of such covenant or obligation and (b) an injunction restraining such breach or threatened breach. MAW and PAW
further agree to waive any requirement for the securing or posting of any bond in connection with
the obtaining
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of any such injunctive or other equitable relief. Lance shall be entitled to recover
its attorneys fees and all of its costs and expenses in enforcing this Agreement.
(i) Notices. All notices, requests, instructions or other documents to be given
hereunder by any party to the other parties shall be in writing and shall be deemed duly given (i)
upon delivery, when delivered personally, (ii) one (1) Business Day after being sent by overnight
courier or when sent by facsimile transmission (with a confirming copy sent by overnight courier),
and (iii) three (3) Business Days after being sent by registered or certified mail, postage
prepaid, as follows:
If to Lance:
Lance, Inc.
13024 Ballantyne Corporate Place
Suite 900
Charlotte, NC 28277
Fax: (704) 554-5586 and (704) 557-8197
Phone: (704) 557-8021 and (704) 557-8300
Attn: Rick D. Puckett and Edward H. Schuth, Esq.
13024 Ballantyne Corporate Place
Suite 900
Charlotte, NC 28277
Fax: (704) 554-5586 and (704) 557-8197
Phone: (704) 557-8021 and (704) 557-8300
Attn: Rick D. Puckett and Edward H. Schuth, Esq.
with a copy to (which shall not constitute notice):
K&L Gates LLP
Hearst Tower, 47th Floor
214 North Tryon Street
Charlotte, NC 28202
Fax: (704) 353-3182
Phone: (704) 331-7482
Attn: Alec Watson
Hearst Tower, 47th Floor
214 North Tryon Street
Charlotte, NC 28202
Fax: (704) 353-3182
Phone: (704) 331-7482
Attn: Alec Watson
If to MAW, to:
Michael A. Warehime
c/o Snyders of Hanover, Inc.
1250 York Street
Hanover, PA 17331
Fax.: (717) 632-7207
Phone: 717-632-4477 (ext. 5201)
c/o Snyders of Hanover, Inc.
1250 York Street
Hanover, PA 17331
Fax.: (717) 632-7207
Phone: 717-632-4477 (ext. 5201)
with a copy to (which shall not constitute notice):
Eckert Seamans Cherin & Mellott, LLC
44th Floor, 600 Grant Street
Pittsburgh, PA 15219
Fax: (412) 566-6099
Phone: (412) 566-2075
Attn: John J. Kearns, III
44th Floor, 600 Grant Street
Pittsburgh, PA 15219
Fax: (412) 566-6099
Phone: (412) 566-2075
Attn: John J. Kearns, III
If to PAW, to:
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Patricia A. Warehime
6663 Moulstown Road East
Hanover, PA 17331
6663 Moulstown Road East
Hanover, PA 17331
Phone: 717-637-6090
with a copy to (which shall not constitute notice):
Eckert Seamans Cherin & Mellott, LLC
44th Floor, 600 Grant Street
Pittsburgh, PA 15219
Fax: (412) 566-6099
Phone: (412) 566-2075
Attn: John J. Kearns, III
44th Floor, 600 Grant Street
Pittsburgh, PA 15219
Fax: (412) 566-6099
Phone: (412) 566-2075
Attn: John J. Kearns, III
(j) Entire Agreement; Assignment. This Agreement constitutes the entire agreement of
the parties and supersedes all prior agreements and understandings, both written and oral, among
the parties hereto, or any of them, with respect to the subject matter hereof. This Agreement may
not be assigned by any of the parties hereto by operation of law or otherwise.
(k) Parties in Interest. This Agreement shall be binding upon and inure solely to the
benefit of each party hereto and their respective successors and assigns. Nothing in this
Agreement, express or implied, is intended to or shall confer upon any other Person any rights,
benefits or remedies of any nature whatsoever under or by reason of this Agreement.
(l) Severability. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of Law or public policy, all other conditions
and provisions of this Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not affected in a manner
adverse to any party. Upon such determination that any term or other provision is invalid, illegal
or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as possible in an
acceptable manner to the end that the transactions contemplated hereby are fulfilled to the fullest
extent possible.
(m) Certain Interpretations. Unless otherwise specified, all references in this
Agreement to Sections shall be deemed to refer to Sections of this Agreement. The Section captions
herein are for convenience of reference only, do not constitute part of this Agreement and shall
not be deemed to limit or otherwise affect any of the provisions hereof. Unless the context
otherwise requires, words describing the singular number shall include the plural and vice versa,
and words denoting any gender shall include all genders. The words include, includes and
including, when used herein shall be deemed in each case to be followed by the words without
limitation. The parties hereto agree that they have been represented by legal counsel during the
negotiation and execution of this Agreement and, therefore, waive the application of any Law,
regulation, holding or rule of construction providing that ambiguities in an agreement or other
document shall be construed against the party drafting such agreement or document. The parties
hereto agree that the intention of this Agreement is to provide certain restrictions on MAW and PAW
with respect to the MAW/PAW Snyders Shares and the MAW/PAW Lance Shares held by each of them, and
that any attempt by either MAW or PAW to circumvent the restrictions contemplated hereby shall be
deemed a breach of this Agreement and shall be null and void.
(n) Fees and Expenses. Except as otherwise provided herein, whether or not the Merger
is consummated, all costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such costs and expenses.
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(o) Ownership Interest. Nothing contained in this Agreement shall be deemed to vest
in Lance any direct or indirect ownership or incidence of ownership of or with respect to any
MAW/PAW Lance Shares. All rights, ownership and economic benefits of and relating to the MAW/PAW
Lance Shares shall remain vested in and belong to MAW/PAW, and Lance shall have no authority to
direct MAW/PAW in the voting or disposition of any of the MAW/PAW Snyders Shares or MAW/PAW Lance
Shares.
(p) Capacity as a Stockholder. MAW and PAW do not make any agreement or understanding
herein in his or her capacity as a director of Snyders. MAW and PAW make their agreements and
understandings herein solely in their capacity as the record holder and beneficial owner of the MAW
and PAW Snyders Shares and, notwithstanding anything to the contrary herein, nothing herein shall
limit or affect any actions taken by MAW and PAW in their capacity as a director or officer of
Snyders.
[Signature page follows]
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IN WITNESS WHEREOF, Lance, MAW and PAW have caused this Agreement to be duly executed as of
the day and year first above written.
LANCE, INC. | ||||||
By: | /s/ David V. Singer
|
|||||
Name: David V. Singer | ||||||
Title: President and Chief Executive Officer | ||||||
/s/ Michael A. Warehime | ||||||
Michael A. Warehime | ||||||
/s/ Patricia A. Warehime | ||||||
Patricia A. Warehime |
Signature Page to Standstill Agreement