EXHIBIT 10.8
BERINGER WINE ESTATES HOLDINGS, INC.
AMENDED AND RESTATED STOCKHOLDERS RIGHTS AGREEMENT
AND VOTING AGREEMENT
THIS AMENDED AND RESTATED STOCKHOLDERS RIGHTS AGREEMENT AND VOTING AGREEMENT (this "Agreement") is entered into as of June 7, 1996, by and among the Company and each of the other parties executing a counterpart signature page hereof.
RECITALS:
--------
WHEREAS, SPAC has issued shares of Preferred Stock and Common Stock to certain of the Stockholders pursuant to a Subscription Agreement, dated as of December 29, 1995, and amended as of January 16, 1996 (the "Subscription Agreement");
WHEREAS, TPG has sold shares of SPAC Common Stock and SPAC has issued shares of Preferred Stock to certain of the Stockholders pursuant to a Securities Purchase Agreement, dated as of January 16, 1996 (the "TPG Securities Purchase Agreement");
WHEREAS, WWE has issued Senior Subordinated Notes and SPAC has issued Warrants to certain of the Stockholders pursuant to a Securities Purchase Agreement, dated as of January 16, 1996, as amended (the "Note Purchase Agreement");
WHEREAS, SPAC has issued shares of Preferred Stock and Common Stock to certain of the Stockholders pursuant to Securities Purchase Agreements, dated as of January 16, 1996 (the "Management Securities Purchase Agreements");
WHEREAS, SPAC has issued shares of Class B Common Stock to certain of the Stockholders pursuant to a Securities Purchase Agreement, dated as of March 29, 1996 (the "March 1996 Securities Purchase Agreement");
WHEREAS, SPAC and certain of the Stockholders entered into a Shareholder Rights Agreement and Voting Agreement, dated as of January 1, 1996 (the "Original Agreement");
WHEREAS, SPAC and the Stockholders have entered into an Amended and Restated Shareholder Rights Agreement and Voting
Agreement, dated as of January 16, 1996 (the "Amended Agreement"); and
WHEREAS, SPAC is being reincorporated as a Delaware corporation and, in connection therewith, the Stockholders wish to amend and restate the Amended Agreement and to enter into this Agreement with the Company.
AGREEMENT:
---------
NOW, THEREFORE, in consideration of the mutual promises, representations, warranties, covenants, and conditions set forth in this Agreement and in the Subscription Agreement, the parties hereby mutually agree to amend and restate the Amended Agreement as follows:
1. Certain Definitions. As used in this Agreement, the following
------------------- terms shall have the following respective meanings:
"Affiliate" of a person shall mean any person, controlling, controlled
--------- by, or under the common control of such person.
"Certificate" shall mean the Certificate of Incorporation of the
----------- Company, as amended from time to time.
"Change of Control Transaction" shall mean a transaction, approved by
----------------------------- TPG, in which all of the business, stock or assets of the Company are sold to a party which is not an Affiliate of TPG or part of a group (as defined in Section 13(d)(3) of the Exchange Act) including TPG in an arm's-length transaction in which the form and amount of consideration per share, if any, payable to the holders of Preferred Stock or Common Stock is distributed pro rata based on ownership of the Common Stock, and in which the other significant terms of the transaction (including, but not limited to, indemnification or escrow arrangements) apply, in all material respects, equally to TPG Stockholders and to the other stockholders. The assumption of TPG of greater liability, in a Change of Control Transaction, shall be deemed to constitute equal treatment. If any holders of Common Stock are given an option as to the form and amount of consideration to be received, all holders must be given the same option. A Change of Control Transaction may take the form of a sale of all of the outstanding voting stock of the Company, a
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merger or consolidation in which the holders of the outstanding voting stock of the Company before the transaction do not own a majority of the outstanding voting stock of the combined entity, a sale of all or substantially all the assets of the Company or a reorganization in which a third party will acquire all the voting power of the Company. The approval by TPG of a proposed Change of Control Transaction shall be effective to trigger all rights and obligations arising out of a Change of Control Transaction.
"Class A Common Stock" shall mean the Company's Class A Common Stock,
-------------------- par value $.0001 per share, then outstanding.
"Class B Common Stock" shall mean the Company's Class B Common Stock,
-------------------- par value $.0001 per share, then outstanding.
"Commission" shall mean the Securities and Exchange Commission or any
---------- other federal agency at the time administering the Securities Act.
"Common Stock" shall mean, collectively, the Company's Class A Common
------------ Stock and Class B Common Stock then outstanding.
"Company" shall mean Beringer Wine Estates Holdings, Inc., a Delaware
------- corporation and its successors and assigns.
"Crescent" shall mean, collectively, Crescent/Mach I Partners, L.P., a
-------- Delaware limited partnership, TCW/Crescent Mezzanine Partners, L.P., a Delaware limited partnership, TCW/Crescent Mezzanine Trust, a Delaware Business Trust, and State Treasurer of Michigan, Custodian of the Michigan Public School Employees' Retirement System, State Employees' Retirement System, Michigan State Police Retirement System, and Michigan Judges Retirement System and such persons to whom Crescent may Transfer Securities in a manner permitted by this Agreement.
"Crescent Initiating Holders" shall mean, with respect to any
---------------------------- registration requested by Crescent, any Holder or Holders of a majority of the then outstanding Registrable Securities held by Crescent.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
------------ amended, or any similar federal statute, and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time.
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"March 1996 Securities Purchase Agreement" shall mean the Securities
---------------------------------------- Purchase Agreement, dated as of March 29, 1996, pursuant to which the Company has sold 472,500 shares of Class B Common Stock to Crescent, New York Life, the Principals, SEP, TPG, TPGI and Wine World Equity Partners, L.P.
"Holder" or "Holders" shall mean any person listed on Exhibit A hereto
------ ------- holding Securities or Registrable Securities and any person holding Securities or Registrable Securities to whom the registration rights under this Agreement have been transferred in accordance with Section 4.10.
"New York Life" shall mean New York Life Insurance Company and such
------------- persons to whom New York Life may Transfer Securities in a manner permitted by this Agreement.
"New York Life Initiating Holders" shall mean, with respect to any
--------------------------------- registration requested by New York Life, any Holder or Holders of a majority of the then outstanding Registrable Securities held by New York Life.
"Note Purchase Agreement" shall mean the Securities Purchase
----------------------- Agreement, dated as of January 16, 1996, entered into between WWE, SPAC, the Purchasers and the Guarantor as defined in such Agreement.
"Options" shall mean the options to purchase Common Stock granted to
------- the Principals and the management of the Company pursuant to Sections 6.4 and 6.6 of the Subscription Agreement.
"Preferred Stock" shall mean shares of the Company's Series A Non-
--------------- Voting Pay-in-Kind Preferred Stock.
"Principals" shall mean E. Michael Moone, C. Richard Lemon, David I.
---------- Freed and George A. Vare.
"Purchaser Registrable Securities" shall mean: (i) any of the shares
-------------------------------- of Common Stock sold by TPG to the Purchasers pursuant to the TPG Securities Purchase Agreement or sold by the Company to the Purchasers pursuant to the March 1996 Securities Purchase Agreement; (ii) any of the shares of Class B Common Stock issuable upon exercise of Warrants (as defined in the Note Purchase Agreement); and (iii) any securities issued or issuable with respect to such Common Stock of the Company referred to in clauses (i) and (ii) immediately above by way of stock dividends
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or stock splits or in connection with a combination of shares, recapitalization, merger, consolidation, or other reorganization or otherwise. As to any particular Purchaser Registrable Securities, such securities will cease to be Purchaser Registrable Securities when they have been distributed to the public pursuant to an offering registered under the Securities Act or sold to the public through a broker, dealer or market maker in compliance with Rule 144 under the Securities Act or any successor rule. The foregoing notwithstanding, a security will not cease to be a Purchaser Registrable Security until all stop transfer instructions and notations and restrictive legends with respect to such security have been lifted or removed. For purposes of this Agreement, a Person will be deemed to be a Holder whenever such Person has the right to acquire directly or indirectly such Purchaser Registrable Securities (upon conversion or exercise in connection with a transfer of securities or otherwise, but disregarding any restrictions or limitations upon the exercise of such right), whether or not such acquisition has actually been effected.
"Purchasers" shall mean New York Life and Crescent and shall include
---------- those persons to whom such persons may Transfer Securities in a manner permitted by this Agreement.
"Qualified IPO" shall mean a sale by the Company of Common Stock in an
------------- underwritten (firm commitment) public offering registered under the Securities Act of 1933, with gross proceeds to the Company of not less than $50 million, resulting in the listing of the Company's Common Stock on a nationally recognized stock exchange, including without limitation, the NASDAQ National Market System.
The terms "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 the effectiveness of such registration statement.
"Registrable Securities" shall mean (x) shares of Common Stock (i)
---------------------- issued or issuable upon conversion of the Class A Common Stock or exercise of the Options, (ii) issued or issuable to the Stockholders pursuant to the Subscription Agreement or the Securities Purchase Agreements, (iii) issued as a dividend or other distribution with respect to, or in exchange
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or in replacement of, such Common Stock, excluding in all cases, however (including exclusion from the calculation of the number of outstanding Registrable Securities), any Registrable Securities sold by a person in a transaction, including a transaction pursuant to a registration statement under this Agreement or a transaction pursuant to Rule 144, in which rights under this Agreement are not transferred in accordance with Section 4.10, and (y) to the extent not duplicative, the Purchaser Registrable Securities.
"Registration Expenses" shall mean all expenses incurred by the
--------------------- Company in complying with Sections 4.1, 4.2 and 4.3 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 Holders and Other Holders (as defined in Section 4.3(a)), blue sky fees and expenses, and accounting and auditing expenses including the expense of any special audits incident to or required by any such registration (but excluding the compensation of regular employees of the Company which shall be paid in any event by the Company and excluding Selling Expenses).
"registration statement" means a registration statement under the
---------------------- Securities Act of the Company that covers any Registrable Securities pursuant to the provisions of this Agreement, including the related prospectus, all amendments and supplements to such registration statement, including pre- effective and post-effective amendments, all exhibits thereto and material incorporated by reference or deemed to be incorporated by reference in such registration statement.
"Securities" shall mean shares of Preferred Stock, Class A Common
---------- Stock, Class B Common Stock, Warrants and Options and shall not include Senior Subordinated Debt, except as specifically otherwise provided.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
-------------- any similar federal statute, and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time.
"Securities Purchase Agreements" shall mean, collectively, the Note
------------------------------ Purchase Agreement, the Management
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Securities Purchase Agreements, the TPG Securities Purchase Agreement, the March 1996 Securities Purchase Agreement and the Securities Purchase Agreements by and between the Company and certain members of management, pursuant to which the Company intends to issue an additional $1,500,000 worth of Securities.
"Selling Expenses" shall mean all underwriting discounts and selling
---------------- commissions applicable to the sale.
"Senior Subordinated Debt" shall mean the 12-1/2% Senior Subordinated
------------------------ Notes issued by WWE pursuant to the Note Purchase Agreement and any securities issued in exchange therefor or in refinancing thereof.
"Silverado Initiating Holders" shall mean, with respect to any
---------------------------- registration requested by the Silverado Stockholders, any Holder or Holders of the lesser of (i) at least 75% of the Registrable Securities held by the Silverado Stockholders or (ii) $5,000,000 of Registrable Securities (determined by reference to the public or fair market value of those shares proposed to be registered.
"Silverado Securities" shall mean the Preferred Stock, Common Stock
-------------------- and Options owned by the Silverado Stockholders.
"Silverado Stockholders" shall mean the Principals and Silverado
---------------------- Equity Partners, L.P., a Delaware limited partnership ("SEP") and persons to whom the Principals or SEP may Transfer Securities subject to this Agreement.
"SPAC" shall mean Silverado Partners Acquisition Corp., a California
---- close corporation which is the predecessor of the Company.
"Stockholders" shall mean each person who has executed this Agreement
------------ and each person who is required to become a party to this Agreement in the future in accordance with the terms hereof.
"TPG Initiating Holders" shall mean, with respect to any registration
---------------------- requested by the TPG Stockholders, any Holder or Holders of not less than 25% of the then outstanding Registrable Securities held by the TPG Stockholders.
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"TPG Stockholders" shall mean TPG and its Affiliates (including Wine
---------------- World Equity Partners, L.P., a Delaware limited partnership) and those persons to whom they may Transfer Securities subject to this Agreement.
"TPG" shall mean TPG Partners, L.P., a Delaware limited partnership
--- and its Affiliates.
"TPGI" shall mean TPG Parallel I, L.P., a Delaware limited partnership
---- and its Affiliates.
"Transfer" means a sale, assignment, encumbrance, gift, pledge,
-------- hypothecation or other disposition of Securities or any interest therein.
"Warrants" shall mean those Warrants issued pursuant to the Note
-------- Purchase Agreement and the related Warrant Agreement.
"WWE" shall mean Wine World Estates Company, a Delaware corporation
--- and a wholly-owned subsidiary of the Company.
2. Transferability.
---------------
2.1 Restrictions on Transferability.
-------------------------------
(a) The Securities issuable pursuant to the Subscription Agreement, the Securities Purchase Agreements or upon exercise of the Options and Warrants, shall not be Transferred except upon compliance with the provisions of the Securities Act and this Agreement, and any attempted Transfer other than in accordance with the terms hereof is void ab initio and transfers
--------- no right, title or interest in or to such securities, whether now owned or hereafter acquired, to the purported transferee, buyer, donee, assignee or encumbrance holder.
(b) Each of the Principals agrees that he will not Transfer any Silverado Securities without TPG's prior approval until the earlier of January 16, 1999 or the closing of a Qualified IPO, except for Transfers permitted under Section 2.5. Any such permitted Transfer shall be done pursuant to the terms of this Agreement and each transferee shall become subject to the restrictions of this Section 2.1(b) as if he were a Principal. Each party to this Agreement will cause any proposed transferee (other than a transferee of securities sold pursuant
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to a registration statement or pursuant to Rule 144 under the Securities Act) of the Securities (or of the Common Stock which may be issued upon conversion of the Class A Common Stock or the exercise of the Options and Warrants) to agree in writing to take and hold such securities subject to the provisions and upon the conditions specified in this Agreement.
2.2 Right of First Offer. In the event any Stockholder desires to
-------------------- Transfer any Securities other than pursuant to Section 2.5 (after January 16, 1999 with respect to Transfers by a Silverado Stockholder), the other Stockholders shall have a right of first offer. Such right of first offer shall be implemented pursuant to the terms of Section 3.
2.3 Restrictive Legend. Each certificate representing the Securities
------------------ that is held by a party hereto shall be stamped or otherwise imprinted with a legend in the following form (in addition to any legend required under applicable state securities laws):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT"). THE SECURITIES MAY NOT BE
SOLD OR OFFERED FOR SALE OR OTHERWISE DISTRIBUTED EXCEPT IN CONJUNCTION
WITH AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE ACT,
OR IN COMPLIANCE WITH RULE 144 OR PURSUANT TO ANOTHER EXEMPTION THEREFROM.
THE SECURITIES ARE ALSO SUBJECT TO PROVISIONS OF THE CERTIFICATE OF
INCORPORATION AND A STOCKHOLDERS RIGHTS AGREEMENT AND VOTING AGREEMENT,
WHICH CONTAIN RESTRICTIONS ON TRANSFER, RIGHTS OF FIRST OFFER, CO-SALE AND
BRING-ALONG PROVISIONS AND A VOTING AGREEMENT. COPIES OF THE CERTIFICATE
AND THE AGREEMENT MAY BE OBTAINED FROM THE SECRETARY OF THE COMPANY."
2.4 Notice of Proposed Transfers; Securities Law Compliance. Prior
------------------------------------------------------- to any proposed Transfer of any Securities, unless there is in effect a registration statement under the Securities Act covering the proposed Transfer, the Holder thereof shall give written notice to the Company of such Holder's intention to effect such Transfer. Each such notice shall describe the manner and circumstances of the proposed Transfer in sufficient detail, and shall be accompanied, unless the Board of
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Directors of the Company otherwise approves, by either (i) a written opinion of legal counsel (which may be internal counsel) who shall be reasonably satisfactory to the Company addressed to the Company and reasonably satisfactory in form and substance to the Company's counsel, to the effect that the proposed Transfer may be effected without registration under the Securities Act, (ii) a "no action" letter from the staff of the Commission to the effect that the distribution of such securities without registration will not result in recommendation by the staff of the Commission that action be taken with respect thereto, or (iii) such other showing that may be reasonably satisfactory to legal counsel to the Company, whereupon the holder of such Securities shall be entitled to Transfer such securities in accordance with the terms of the notice delivered by the holder to the Company. Notwithstanding the foregoing, the requirements of clauses (i), (ii), or (iii) above need not be satisfied with respect to the following transactions: (A) Transfers by a Holder which is a partnership to a general partner, limited partner or employee of such partnership; and (B) Transfers by a Holder to an Affiliate of such Holder. In addition, Transfers made by a Stockholder that is a state sponsored employee benefit plan to a successor trust or fiduciary or pursuant to a statutory reconstitution shall be expressly permitted, and the requirements of clauses (i), (ii) or (iii) need not be satisfied.
2.5 Permitted Transfers. Subject to compliance with the applicable
------------------- provisions of the Securities Act and Sections 2.1(b) and 2.4, the following Transfers may be made without complying with Section 3 or Section 7, subject to the transferee agreeing in writing to be bound by the terms of this Agreement to the same extent as if such transferee were a party hereto and subject to any conditions set forth below: (i) Transfers described in clauses (A) and (B) or the last sentence of Section 2.4 hereof; (ii) Transfers upon death of an individual Stockholder to such Stockholder's heirs, executors, administrators, testamentary trustees, legatees or beneficiaries; (iii) Transfers by present or future management Stockholders to the Company upon termination of employment, pursuant to agreements permitting the Company to make such repurchases approved by the Board of Directors of the Company; (iv) Redemptions or repurchases of the Preferred Stock permitted, required, or contemplated by the Certificate or this Agreement, respectively; (v) Transfers contemplated by Sections 6 and 7
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hereof; (vi) subject to Section 2.1, Transfers (other than by TPG or its Affiliates) approved by a majority of the Board of Directors who are not Affiliates of the transferor or transferee; (vii) Transfers by an individual Stockholder by gift to his or her spouse or to the siblings, lineal descendants, or ancestors of such individual or his or her spouse or to a trustee of any trust of which such person or persons is/are beneficiaries, if, in the case of a Transfer to a trust, the Transferor retains voting rights with respect to the Securities being transferred; (viii) Transfers by the TPG Stockholders pursuant to the TPG Securities Purchase Agreement; (ix) pledges of the Securities held by Crescent/MACH I Partners, L.P. ("Mach I") to a trustee for the benefit of secured noteholders pursuant to documents relating to the financing of Mach I; or (x) Transfers pursuant to an effective registration statement under the Securities Act.
3. Rights of First Offer.
---------------------
3.1 First Offer Rights. A Stockholder (following January 16,
------------------ 1999 with respect to a Silverado Stockholder) may Transfer Preferred Stock, Common Stock or Warrants, except as permitted in Section 2.5 hereof, only for a cash purchase price (and/or a promissory note) and only in compliance with the provisions of this Section 3. A Stockholder desiring to Transfer Securities in compliance with this Section 3 (a "Selling Stockholder") shall first deliver written notice to the Company (hereinafter referred to as the "Notice of Offer") which Notice of Offer shall specify (i) the number of Securities owned by the Selling Stockholder which such Selling Stockholder wishes to sell (the "Offered Securities"); (ii) the proposed cash purchase price (including the terms of any promissory note) for the Offered Securities (the "Offer Price"); and (iii) all other terms and conditions of the offer. T ...
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