EXHIBIT 10.2
INVESTOR'S AGREEMENT
This Investor's Agreement (the "Agreement"), dated as of September 24,
1999, among The Hain Food Group, Inc., a Delaware corporation (the "Company"),
Earth's Best, Inc., an Idaho corporation (the "Purchaser") and Irwin D. Simon
(solely for purposes of Section 3.05).
W I T N E S S E T H :
WHEREAS, upon the terms and subject to the conditions of a Securities
Purchase Agreement between the parties hereto dated September 24, 1999 (the
"Purchase Agreement"), the Company has agreed to issue and sell to the Purchaser
2,837,343 shares (the "Investment Shares") of Common Stock, par value $0.01 per
share, of the Company ("Common Stock");
WHEREAS, upon the terms and subject to the conditions of an Asset Purchase
and Sale Agreement by and among the parties hereto and H.J. Heinz Company dated
September 24, 1999 (the "Acquisition Agreement"), the Company has agreed to
issue to the Purchaser 670,234 shares of Common Stock (the "Acquisition
Shares"); and
WHEREAS, the Purchaser and the Company each desire to enter into this
Agreement for the purpose of regulating certain aspects of their relationship
with regard to the Company.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Purchaser
hereby agree as follows:
ARTICLE I
DEFINITIONS
(a) As used herein, the following terms shall have the following meanings:
"Affiliate" shall mean, with respect to any Person, (i) any Person or
entity directly or indirectly controlling or controlled by or under direct or
indirect common con-
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trol with such Person, (ii) any spouse or non-adult child (including by
adoption), (iii) any relative other than a spouse or non-adult child (including
by adoption) who has the same principal residence of any natural person
described in clause (i) above, (iv) any trust in which any such Persons
described in clause (i), (ii) or (iii) above has a beneficial interest and (v)
any corporation, partnership, limited liability company or other organization of
which any such Persons described in clause (i), (ii) or (iii) above collectively
own more than fifty percent (50%) of the equity of such entity.
"Lock-up Period" means the period commencing on the Closing Date (as
defined in the Purchase Agreement) and ending the earlier of (I) eighteen months
thereafter and (II) the occurrence of a Significant Corporate Event.
"New Securities" has the meaning set forth in Section 5.01.
"Person" shall mean an individual, partnership, limited liability company,
joint venture, corporation, trust or unincorporated organization or any other
similar entity.
"Registration Rights Agreement" means the Registration Rights Agreement
between the parties hereto dated the date hereof.
"Related Party" shall mean with respect to any Person: (i) any parent,
controlling shareholder, fifty percent (50%) or greater owned subsidiary, or
spouse or ex-spouse or immediate family member (in the case of an individual) of
such Person; or (ii) a trust, corporation, partnership, limited liability
company or other entity, the beneficiaries, shareholders, partners, owners or
persons holding a fifty percent (50%) or greater controlling interest of which
consist of such Person and/or such other persons or entities referred to in the
immediately preceding clause (i).
A "Significant Corporate Event" means any of the following: (i) the launch
of a bona fide tender offer for the capital stock of the Company by a third
party other than the Purchaser or its Affiliate, (ii) the issuance and sale by
the Company in a private transaction or series of private transactions to a
third party other than the Purchaser or its Affiliate of capital stock of the
Company resulting in a greater ownership interest in the Company by such third
party than the Purchaser's maximum allowable ownership interest at the time of
such transaction(s), (iii) the acquisition by a third party other than the
Purchaser or its Affiliates of shares of Common Stock constituting in the
aggregate 15% (fifteen percent) or greater of the outstanding Common Stock in a
transaction or series of transactions approved prior to consummation thereof by
the Company's Board of Directors, (iv) the acquisition by the Company of a
business such that, following such acquisition, greater than twenty-five percent
(25%) of the Company's sales, on a pro forma basis, are derived from the sale of
products other than food, beverage or natural health and beauty products
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(excluding dietary supplements) sold through the Company's existing distribution
channels; provided, the Company does not divest that portion of the acquired
business necessary to fall below the twenty-five percent (25%) threshold within
a reasonable period of time following such acquisition, (v) the sale by the
Company of all or substantially all of its assets or (vi) the loss by the
Company of the services of Irwin D. Simon as its President and Chief Executive
Officer.
"Shares" shall mean, without duplication, (i) the Investment Shares, if and
when issued in connection with the Purchase Agreement, (ii) the Acquisition
Shares, if and when issued in accordance with the Acquisition Agreement, (iii)
any New Securities purchased by the Purchaser in accordance with Article V
hereof and (iv) any other shares of Common Stock hereafter acquired by the
Purchaser.
(b) Capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Purchase Agreement.
ARTICLE II
CORPORATE GOVERNANCE
SECTION 2.01. Board of Directors. Upon the execution of this Agreement, and
until such time as the Purchaser and its Affiliates no longer collectively
beneficially own Common Stock representing at least fifty percent (50%) of the
Shares issued to the Purchaser on the Closing Date (as defined in the Purchase
Agreement), the Company agrees as follows:
(a) Purchaser's Designee. The Company agrees to take all action
necessary such that from and after the date hereof until the next regularly
scheduled meeting of the Company's stockholders, the Board of Directors of
the Company (the "Board") shall include one director designated by the
Purchaser (the "Purchaser's Designee") and thereafter to use its best
efforts to cause a nominee designated by the Purchaser to be included in
each slate of proposed directors put forth by the Company to its
stockholders and recommended for election in any proxy solicitation
materials disseminated by the Company; provided, however, that the identity
of any Purchaser's Designee other than Joseph Jimenez shall be reasonably
acceptable to the Company. Upon the death, resignation or removal of a
Purchaser's Designee, the Company will use its best efforts to have the
vacancy filled by a subsequent Purchaser's Designee. The Purchaser's
Designee shall be fully covered by any directors' and officers' liability
insurance maintained from time to time on the same
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terms as the other members, shall be entitled to the benefit of any
indemnification arrangements applicable to the other members and shall have
the right to receive all fees paid and options and other awards granted and
expenses reimbursed to non-employee directors generally.
(b) Joint Designee. The Company agrees to take all action necessary
such that from and after the date hereof until the next regularly scheduled
meeting of the Company's stockholders, the Board shall include one director
designated jointly by the Purchaser and the Company (the "Joint Designee"),
and thereafter to use its best efforts to cause a nominee jointly
designated by the Purchaser and the Company to be included in each slate of
proposed directors put forth by the Company to its stockholders and
recommended for election in any proxy solicitation materials disseminated
by the Company. The initial Joint Designee shall be A.G. Malcolm Ritchie.
In the event the Company and the Purchaser fail to agree on a successor
Joint Designee, each of the Company and the Purchaser shall submit one name
to a committee comprised of three independent members (other than the
Purchaser's Designee) of the Board, and such committee shall determine,
from the two names submitted, the proposed nominee for Joint Designee,
which determination shall be final. Upon the death, resignation or removal
of a Joint Designee, the Company will use its best efforts to have the
vacancy filled by a subsequent Joint Designee. The Joint Designee shall be
fully covered by any directors' and officers' liability insurance
maintained from time to time on the same terms as the other members, shall
be entitled to the benefit of any indemnification arrangements applicable
to the other members and shall have the right to receive all fees paid and
options and other awards granted and expenses reimbursed to non-employee
directors generally.
ARTICLE III
RESTRiCTIONS ON TRANSFER; RIGHT OF FIRST OFFER
SECTION 3.01. Lock-up Period. Without the prior written consent of the
Board, the Purchaser agrees and covenants that, during the Lock-up Period, it
will not sell, assign, pledge or otherwise transfer any Shares.
SECTION 3.02. Company's Right of First Offer. If, following the Lock-up
Period, the Purchaser has received a bona fide offer (a "Transfer Offer") which
the Purchaser proposes to accept to sell or otherwise transfer any or all of the
Shares (the "Transfer Stock") then owned by the Purchaser to any Person (a "Bona
Fide Purchaser"), then before the Purchaser may sell the Transfer Stock, the
Purchaser shall provide the
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Company a written notice detailing the terms of such Transfer Offer that the
Purchaser has received with respect to such Transfer Stock (a "Transfer
Notice"). Such Transfer Notice shall identify the number of shares of the
Transfer Stock, the price of the Transfer Stock, the identity of the Bona Fide
Purchaser and all the other material terms and conditions of such Transfer
Offer. The Transfer Notice shall contain an irrevocable offer to sell to the
Company the Shares constituting Transfer Stock at a price equal to the price and
upon substantially the same terms as the terms contained in such Transfer Offer.
If the Company does not notify the Purchaser of its intent to purchase the
Transfer Stock within 20 days of delivery of the Transfer Notice, the Company's
right of first offer with respect to the Transfer Stock shall terminate. If the
Company notifies the Purchaser that it has decided not to purchase the Transfer
Stock, the Purchaser shall have 120 days from the date of such notice to
transfer to the Bona Fide Purchaser any or all of the Transfer Stock at a price
not less than and on terms no more favorable than were contained in the Transfer
Notice. No sale may be made to any third party unless such third party agrees,
in writing, to be bound by the provisions of this Agreement. Promptly after any
sale pursuant to this Section 3.02, the Purchaser shall notify the Company of
the consummation thereof and shall furnish such evidence of the completion
(including time of completion) of such sale and of the terms thereof as the
Company may reasonably request. If, at the termination of the 120-day sale
period specified above, the Purchaser has not completed the sale of all of the
Transfer Stock, the Purchaser shall no longer be permitted to transfer such
Transfer Stock pursuant to this Section 3.02 without again fully complying with
the provisions of this Section 3.02 and all the restrictions on transfer
contained in this Agreement shall again be in effect with respect to all the
Purchaser's Shares.
SECTION 3.03. Restrictions on Transfer to Certain Parties. In addition to
the restrictions on transfer set forth in Sections 3.01 and 3.02, the Purchaser
agrees that the Purchaser will not sell, assign, pledge, or otherwise transfer
any of the Company's Common Stock or other securities exercisable for, or
convertible or exchangeable into Common Stock, including, but not limited to,
the Shares (collectively, "Company Securities"), or any right or interest
therein, whether voluntarily or by operation of law, or otherwise, (i) to an
Adverse Person (as defined below), (ii) to any transferee who holds, prior to
such transfer, ten percent (10%) or greater of the outstanding voting capital
stock of the Company registered in its name or beneficially owned by it or its
Affiliates as of the date thereof or (iii) without the consent of the Company,
that would result in such transferee holding ten percent (10%) or greater of
outstanding voting capital stock of the Company registered in its name or
beneficially owned by it or any of its Affiliates upon the consummation of such
transfer. The term "Adverse Person" as used in this Section 3.03 shall mean any
corporation or entity which at such time is a competitor of the Company or any
Affiliate of such corporation or entity.
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SECTION 3.04. Public Offering Lock-Up. (a) The Purchaser agrees and
covenants that in connection with an underwritten public offering of Company
Securities by the Company, it will agree if requested by the underwriter(s) not
to offer, sell or otherwise dispose of any Shares for a period not to exceed 90
days after the date of the underwriting agreement, without the prior consent of
the underwriter(s).
(b) The Company agrees and covenants that in connection with an
underwritten public offering of Company Securities in connection with a Demand
Registration (as defined in the Registration Rights Agreement), the Company will
agree if requested by the underwriter(s) not to offer, sell or otherwise dispose
of any Company Securities for a period not to exceed 45 days after the date of
the underwriting agreement, without the prior consent of the underwriter(s).
SECTION 3.05. Restrictions on Transfer by Irwin D. Simon. Without the prior
written approval of the Purchaser, during the Lock-up Period, Irwin D. Simon,
the Company's President and Chief Executive Officer, will not sell in excess of
500,000 (five hundred thousand) shares of Common Stock (including shares of
Common Stock issued or issuable upon the exercise of options). In addition to
the foregoing, in the event Mr. Simon proposes to sell, during the Lock-up
Period, 50,000 or greater shares of Common Stock in any single transaction, Mr.
Simon will use commercially reasonable efforts to sell such shares, subject to
requisite approval of the Board, to Heinz or its Affiliates in a transaction
substantially consistent with Section 3.02 (with respect to notice requirements
and time periods).
ARTICLE IV
STANDSTILL AGREEMENT
SECTION 4.01. Standstill Agreement. The Purchaser agrees and covenants
that, without the prior written consent of the Board, during the Lock-up Period,
the Purchaser will not, and will cause each of its Affiliates not to, singly or
as part of a "partnership, limited partnership, syndicate or other group" (as
those terms are used within the meaning of Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), which meanings shall
apply for all purposes of this Agreement), directly or indirectly, through one
or more intermediaries or otherwise:
(a) acquire, offer or propose to acquire, or agree to acquire,
directly or indirectly, by purchase or otherwise (other than as may be
otherwise permitted in this Section 4.01), any Company Securities, except
(i) in accordance with Article V
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of this Agreement or (ii) by way of stock dividends, stock splits,
reorganization, recapitalization, merger, consolidation or like
distributions made available to holders of the Common Stock generally;
(b) make, or in any way participate, directly or indirectly, in, any
"solicitation" of "proxies" (as such terms are defined or used in
Regulation 14A of the Exchange Act) by Persons other than the Company with
respect to Company Securities (including by the execution of actions by
written consent), become a "participant" in any "election contest" (as such
terms are defined or used in Rule 14a-11 of the Exchange Act) with respect
to the Company other than in concurrence with actions initiated or
supported by the Board;
(c) initiate, propose or otherwise solicit, or participate in the
solicitation of, stockholders for the approval of one or more stockholder
proposals with respect to the Company as described in Rule 14a-8 under the
Exchange Act or induce any other individual or entity to initiate any
stockholder proposal relating to the Company;
(d) directly or indirectly participate in or encourage the formation
of any group that seeks control of the Company (other than as may be
otherwise permitted in this Section 4.01) or for the purpose of
circumventing any provision of this Agreement;
(e) other than in connection with a competing proposal in respect of
any such action taken by a third party without the direct or indirect
assistance of the Purchaser or its Affiliates, solicit, seek or offer to
effect with any third party, or make any statement or proposal, whether
written or oral, either alone or in concert with others, with respect to
any form of business combination or transaction involving the Company or
any subsidiary thereof, including, without limitation, a merger, exchange
offer or liquidation of the Company's assets, or instigate or encourage any
third party to do any of the foregoing;
(f) deposit any Company Securities into a trust or subject any Company
Securities to any arrangement or agreement with respect to the voting
thereof or take any action by written consent in lieu of a meeting, in any
such case that seeks control of the Company (except as may be otherwise
permitted in this Section 4.01) or for the purpose of circumventing any
provision of this Agreement; or
(g) other than in connection with a competing proposal in respect of
any such action taken by a third party without the direct or indirect
assistance of the Purchaser or its Affiliates, otherwise act, directly or
indirectly, alone or in concert
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with others (including by providing financing for another party) to seek or
offer to acquire control of the Company.
SECTION 4.02. Additional Standstill Agreement on Transactions with 10% or
Greater Stockholders. Notwithstanding the foregoing, during the term of this
Agreement, the Purchaser shall not enter any arrangement, written or otherwise,
with any holder of ten percent (10%) or greater of the outstanding voting
capital stock of the Company registered in its name or beneficially owned by it
or its Affiliates, for the purpose of effecting any acquisition, offer,
proposal, solicitation or participation specified in clauses (a) through (g) of
Section 4.01.
SECTION 4.03. Voting Rights. The Purchaser agrees that, for the duration of
this Agreement, so long as the Purchaser and its Affiliates own any voting
capital stock of the Company registered in their respective names or
beneficially owned by them, it will use reasonable best efforts to, and to cause
each of its Affiliates to, be present, in person or represented by proxy, at all
stockholder meetings of the Company so that all of the Common Stock beneficially
owned by the Purchaser and its Affiliates may be counted for the purpose of
determining the presence of a quorum at such meetings and to vote in favor of
(i) the slate of directors put forth by the Company to its stockholders at any
such meetings and recommended for election in proxy solicitation materials
disseminated by the Company and (ii) at the Company's annual meeting of
stockholders to be held on or about December 7, 1999, amendments to the
Company's certificate of incorporation and by-laws providing for the
classification of our board of directors into three classes and amendments to
the Company's stock option plans providing for increases in the number of shares
eligible for grant thereunder.
ARTICLE V
PREEMPTIVE RIGHTS; ETC.
SECTION 5.01. Private Transactions. If the Company proposes to issue or
sell any additional Company Securities ("New Securities"), other than (i) in an
underwritten public offering registered under the Securities Act, (ii) pursuant
to any Company stock option plan or in connection with the exercise of currently
outstanding warrants or currently outstanding options or options received
pursuant to any Company stock option plan or the conversion of outstanding
convertible notes or (iii) pursuant to a stock split, dividend or other
recapitalization, then the Company shall deliver written notice thereof (the
"Preemptive Notice") to the Purchaser setting forth the number, terms and
purchase consideration (or if such purchase consideration is not expressed in
cash, the fair market
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value cash equivalent thereof determined in good faith by the Board) of the New
Securities which the Company proposes to issue. The Purchaser shall thereupon
have the right, unless otherwise agreed in writing by the Purchaser in advance,
to elect to purchase on the same terms and conditions (including consideration
or the cash equivalent thereof) as those offered to any third party that number
of New Securities proposed to be issued as would maintain the Purchaser's
relative proportional equity interest in the Company as of the date of such
Preemptive Notice. The Purchaser may make such election by written notice to the
Company within 20 days of receipt of notice of any proposed issuance of New
Securities. If the Purchaser does not elect to purchase its pro rata portion of
New Securities within 20 days of the date of the Preemptive Notice (the
"Preemptive Notice Period"), this pro rata purchase right shall terminate with
respect to the New Securities described in the written notice delivered to that
party (but not with respect to any future proposed sales of New Securities by
the Company), and the Company may, in its sole discretion, sell to third parties
within 120 days after the Purchaser's receipt of the Preemptive Notice any or
all of the New Securities described in such written notice to the Purchaser.
Subject to the Company's rights under the preceding sentence, any purchases by
the Purchaser of New Securities in accordance with this Section 5.01 shall be
made at the closing and upon terms of the sale of New Securities to the third
party permitted by the preceding sentence. At such closing, the Purchaser shall
deliver a certified check or checks or a wire transfer of immediately available
funds in the appropriate amount to the Company against delivery of certificates
representing the New Securities so purchased.
SECTION 5.02. Underwritten Offerings. If, during the Lock-up Period, the
Company issues and sells any New Securities in an underwritten public offering
pursuant to an effective Registration Statement under the Securities Act (an
"Underwritten Offering"), then the Company shall arrange for the Purchaser to be
allocated securities in the Underwritten Offering on the same terms and
conditions as those offered in such offering such that the number of New
Securities issued to the Purchaser would maintain the Purchaser's relative
proportional equity interest in the Company as of the date of consummation of
such Underwritten Offering; provided, the Company may, in the alternative, and
with the consent of the Purchasers, issue and sell to the Purchaser in a private
offering to be consummated simultaneously with the closing of the Underwritten
Offering that the number of New Securities that would maintain the Purchaser's
relative proportional equity interest in the Company as of the date of
consummation of the Underwritten Offering.
SECTION 5.03. Option and Warrant Exercises. The Purchaser shall have the
right, as of each November 15, February 15, May 15 and August 15 during the
Lock-up Period, to acquire in open market transactions or private transactions
with third parties (other than in violation of Section 4.02) the number of
shares of Common Stock, which shall be deemed to constitute "New Securities" for
purposes of this Agreement, such that
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the Purchaser can maintain the relative proportional equity interest in the
Company it would have held if the Company had issued no shares of Common Stock
upon the exercise of options or warrants or the conversion of convertible notes
outstanding on the date hereof during the three-month period immediately prior
to such date; provided, the above mentioned period ending November 15, 1999
shall commence as of the date of the Purchase Agreement.
SECTION 5.04. Recapitalizations, etc. Notwithstanding the foregoing, the
provisions of this Agreement (including any calculation of share ownership)
shall apply, except to the extent specifically set forth herein with respect to
the Shares, to any and all shares of capital stock of the Company or any capital
stock or any other security evidencing ownership interests in any successor or
assign of the Company (whether by merger, consolidation, sale of assets or
otherwise) that may be issued in respect of, in exchange for, or in substitution
of the Common Stock by reason of any stock dividend, split, reverse split,
combination, recapitalization, liquidation, reclassification, merger,
consolidation or otherwise.
SECTION 5.05. Stockholders Rights Plan. In the event the Company adopts a
stockholders rights plan, the Company agrees that no provision of such plan
shall have the effect of diluting the economic or voting power of the Shares,
notwithstanding the occurrence of any event or contingency, including without
limitation the ownership or acquisition by the H.J. Heinz Company or any of its
Affiliates of any amount of Common Stock.
ARTICLE VI
CONFIDENTIALITY
SECTION 6.01. Confidentiality. (a) As used herein, "Confidential Material"
means, with respect to either party hereto (the "Providing Party"), all
information, whether oral, written, or otherwise, furnished to the other party
hereto (the "Receiving Party") or such Receiving Party's directors, officers,
partners, Affiliates, employees, agents or representatives (collectively,
"Representatives"), and all reports, analyses, compilations, studies and other
materials prepared by the Receiving Party or its Representatives (in whatever
form maintained, whether documentary, computer storage or otherwise) containing,
reflecting or based upon, in whole or in part, any such information. The term
"Confidential Material" does not include information which (i) is or becomes
generally available to the public other than as a result of a disclosure by the
Receiving Party, its Representatives or anyone to whom the Receiving Party or
any of its
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Representatives transmits any Confidential Material in violation of this
Agreement, or (ii) is or becomes known or available to the Receiving Party on a
non-confidential basis from a source (other than the Providing Party or one of
its Representatives) who is not, to the knowledge of the Receiving Party after
reasonable inquiries, prohibited from transmitting the information to the
Receiving Party or its Representatives by contractual legal, fiduciary or other
obligations.
(b) Subject to paragraph (c) below or except as required by law, the
Confidential Material will be kept confidential and will not, without prior
written consent of the Providing Party, be disclosed by the Receiving Party or
its Representatives, in whole or in part, and will not be used by the Receiving
Party or its Representatives, directly or indirectly, for any purpose other than
in connection with the Purchase Agreement, this Agreement or with respect to the
matters contemplated therein. Moreover, each Receiving Party agrees to transmit
Confidential Material to its Representatives only if and to the extent that such
Representatives need to know the Confidential Material for purposes of such
transaction and are informed by such Receiving Party of the confidential nature
of the Confidential Material and of the terms of this Section 6.01. In any
event, each Receiving Party will be responsible for any actions by its
Representatives which are not in accordance with the provisions hereof.
(c) In the event that the Receiving Party, its Representatives or anyone to
whom such Receiving Party or its Representatives supply Confidential Material is
requested or required (by oral questionnaires, interrogatories, requests for
information or documents, subpoena, civil investigative demand, any informal or
formal investigation by any government or governmental agency authority or
otherwise in connection with legal processes) to disclose any Confidential
Material, such Receiving Party agrees (i) to immediately notify the Providing
Party of the existence, terms and circumstances surrounding such request, (ii)
to consult with the Providing Party on the advisability of taking legally
available steps to resist or narrow such request and (iii) if disclosure of such
information is required, to furnish only that portion of the Confidential
Material which, in the opinion of such Receiving Party's counsel, such Receiving
Party is legally compelled to disclose and to cooperate with any action by the
Providing Party to obtain an appropriate protective order or other reliable
assurance that confidential treatment will be accorded the Confidential Material
(it being agreed that the Providing Party shall reimburse the Receiving Party
for all reasonable out-of-pocket expenses incurred by the Receiving Party in
connection with such cooperation.)
(d) In the event of the termination of this Agreement in accordance with
its terms, promptly upon request from either Providing Party, the Receiving
Party shall, except to the extent prevented by law, redeliver to the Providing
Party or destroy all tangible Confidential Material and will not retain any
copies, extracts or other reproductions
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thereof in whole or in part. Any such destruction shall be certified in writing
to the Providing Party by an authorized officer of the Receiving Party
supervising the same. Notwithstanding the foregoing, each Receiving Party and
one Representative designated by each Receiving Party shall be permitted to
retain one permanent file copy of each document constituting Confidential
Material.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Successors, Assigns and Transferees. This Agreement shall not
be assignable or otherwise transferable by a party without the prior consent of
the other parties, and any attempt to so assign or otherwise transfer this
Agreement without such consent shall be void and of no effect. This Agreement
shall be binding upon the respective successors and assigns of the parties
hereto. Nothing in this Agreement shall be construed as giving any Person, other
than the parties hereto and their successors and permitted assigns, any right,
remedy or claim under or in respect of this Agreement or any provision hereof.
SECTION 7.02. Amendment and Waiver. Neither this Agreement nor any term
hereof may be amended, waived, discharged or terminated other than by an
instrument in writing, signed by the party against which enforcement of such
amendment, discharge, waiver or termination is sought.
SECTION 7.03. No Failure or Delay. No failure or delay by any party in
exercising any right, power or privilege under this Agreement shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies provided herein shall be cumulative and not
exclusive of any rights or remedies provided by law.
SECTION 7.04. Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be delivered in person,
sent by facsimile or mailed by certified or registered mail; return receipt
requested, addressed as follows:
If to the Purchaser, to: Earth's Best, Inc.
c/o H.J. Heinz Company
1062 Progress Street
Pittsburgh, PA 15230
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Telecopier No.: (412) 237-3523
Attention: Francis W. Daily
with a copy to: H.J. Heinz Company
600 Grant Street
Pittsburgh, PA 15219
Telecopier No.: (412) 4566102
Attention: Vice President - Legal Affairs
If to the Company or
Irwin D. Simon, to: The Hain Food Group, Inc.
50 Charles Lindbergh Boulevard
Uniondale, NY 11553
Telecopier No.: (516) 237-6240
Attention: President
with a copy to: Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
Telecopier No.: (212) 269-5420
Attention: Roger Meltzer, Esq.
or, in any such case, at such other address or addresses as shall have been
furnished in writing by such party to the others. All notices, requests,
consents and other communications hereunder shall be deemed to have been duly
given or served on the date on which personally delivered or on the date
actually received, with receipt acknowledged.
SECTION 7.05. Choice of Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
SECTION 7.06. Entire Agreement. This Agreement, the Purchase Agreement,
Acquisition Agreement and the Registration Rights Agreement constitute the sole
and entire agreement of the parties with respect to the subject matter hereof
and supersede any and all prior or contemporaneous agreements, discussions,
representations, warranties or other communications.
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SECTION 7.07. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
SECTION 7.08. Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms to the fullest extent permitted by law.
SECTION 7.09. Termination. Unless earlier terminated by an instrument in
writing amending this Agreement pursuant to Section 7.02, this Agreement shall
terminate upon the earlier of (a) the tenth anniversary of the effective date of
this Agreement or (b) the first date on which the Purchaser and its Affiliates
no longer own any Shares.
SECTION 7.10. Headings. The titles and subtitles used in this Agreement are
for convenience only and are not to be considered in construing or interpreting
any term or provisions of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Investor's
Agreement to be duly executed as of the date first above written.
THE HAIN FOOD GROUP, INC.
By: /s/ Irwin D. Simon
--------------------------
Name: Irwin D. Simon
Title: President
EARTH'S BEST, INC.
By: /s/ Robert Yoshida
--------------------------
Name: Robert Yoshida
Title: President
IRWIN D. SIMON
(solely for purposes of
Section 3.05)
/s/ Irwin D. Simon
-------------------------------