Exhibit 10.14
AMENDED AND RESTATED
STOCKHOLDER AGREEMENT
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AMENDED AND RESTATED STOCKHOLDER AGREEMENT (this "Agreement") dated
as of November 7, 2000 among AMCON Distributing Company, a Delaware
corporation ("AMCON"), Andrew Merger Sub, Inc., a Delaware corporation and a
wholly-owned subsidiary of AMCON ("Merger Sub"), and the stockholders of
Hawaiian Natural Water Company, Inc., a Hawaii corporation (the "Company" or
"HNWC"), named on Schedule I hereto (individually, a "Stockholder" and
collectively, the "Stockholders").
WHEREAS, AMCON and Merger Sub propose to enter into an Agreement and
Plan of Merger dated as of the date hereof (as amended from time to time, the
"Merger Agreement"; capitalized terms used but not defined herein shall have
the meanings set forth in the Merger Agreement) with the Company which
provides, among other things, that the Company will merge with and into
Merger Sub (the "Merger"); and
WHEREAS, as of the date hereof, each Stockholder owns of record or
beneficially the respective number of shares of the Company Common Stock set
opposite such Stockholder's name on Schedule I hereto; and
WHEREAS, as an essential condition to the willingness of AMCON and
Merger Sub to enter into the Merger Agreement, AMCON and Merger Sub have
requested that each Stockholder agree, and in order to induce AMCON and
Merger Sub to enter into the Merger Agreement, each Stockholder has agreed,
to enter into this Agreement with respect to (i) all the shares of the
Company Common Stock owned beneficially and of record by such Stockholder as
of the date hereof or of which such Stockholder may hereafter acquire record
or beneficial ownership (the "Shares") and (ii) any other securities owned of
record or beneficially by such Stockholder as of the date hereof or of which
such Stockholder may hereafter acquire ownership of record or beneficially
which may be voted by or at the direction or on behalf of the Stockholder at
any meeting of the Company stockholders or with respect to which action taken
without a meeting may be authorized by or at the direction or on behalf of
such Stockholder by written consent (the "Other Securities");
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein and intending to be legally bound
hereby, the parties hereto agree as follows:
ARTICLE I
VOTING AGREEMENT
Section 1.1 Voting Agreement. Each Stockholder hereby agrees that,
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with respect to the Company Stockholders Meeting and any other meeting of the
Company stockholders or any action to be taken by written consent the
Stockholder shall:
(a) appear in person or by proxy (or use its reasonable
best efforts to cause the holder of record on any applicable record
date to appear in person or by proxy) for the
purpose of obtaining a quorum at the Company Stockholders Meeting
and at any adjournment or postponement thereof;
(b) vote (or cause to be voted) the Shares and the Other
Securities (or, as applicable, shall execute or cause to be executed
written consents in respect of the Shares and the Other Securities)
in favor of the approval and adoption of the Merger Agreement, the
Merger and, any other transactions or matters contemplated by the
Merger Agreement, and any actions required in furtherance thereof
and hereof; and
(c) not encourage any holder of securities of the Company
to vote against the approval and adoption of the Merger Agreement,
the Merger or any other transactions or matters contemplated by the
Merger Agreement, and not take any action, or permit any action to
be taken, that would reasonably be expected to impede, interfere, or
be inconsistent with, delay, postpone, discourage, disparage or
otherwise adversely affect, the Merger Agreement, the Merger, this
Agreement and any other transactions or matters contemplated by the
Merger Agreement, or a Stockholder's obligations hereunder,
including, but not limited to, the obligations of each Stockholder
to vote for the approval and adoption of the Merger Agreement, the
Merger and any other transactions or matters contemplated by the
Merger Agreement, and to use its reasonable best efforts to
consummate and make effective the transactions contemplated by this
Agreement, provided that nothing in this Section 1.1 shall limit any
individual Stockholder who is a director of the Company from
exercising or performing any of such Stockholder's rights or duties
solely in such Stockholder's capacity as a director of the Company.
Section 1.2 Irrevocable Proxy. In order to ensure that the voting
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agreement set forth in Section 1.1 and the other obligations of each
Stockholder hereunder will be carried out, each Stockholder hereby grants an
irrevocable proxy, coupled with an interest, in the form attached hereto as
Exhibit A (the "Irrevocable Proxy") to, and hereby constitutes and appoints
AMCON and each of its officers as such Stockholder's sole and exclusive
attorney and proxy pursuant to the provisions of Section 414-33(c) of the
Hawaii Business Corporations Act, with full power of substitution, (a) to
vote and otherwise act (by written consent or otherwise) with respect to the
Shares and the Other Securities which such Stockholder is entitled to vote at
the Company Stockholders Meeting and any other meeting of the Company
Stockholders, or pursuant to any written consent in lieu of a meeting of the
Company Stockholders, and at any adjournment or postponement thereof on the
matters and in the manner specified in Section 1.1 and (b) to execute and
deliver any and all further consents, instruments or other agreements or
documents and take any and all such reasonable actions in connection with or
in furtherance of the obligations of such Stockholder set forth in this
Agreement and in furtherance of each of the transactions. THIS PROXY AND
POWER OF ATTORNEY IS IRREVOCABLE AND COUPLED WITH AN INTEREST. Such
Stockholder hereby revokes all other proxies and powers of attorney with
respect to the Shares and the Other Securities that such Stockholder may have
heretofore appointed or granted that would prevent such Stockholder from
performing its obligations hereunder, and no subsequent proxy or power of
attorney shall be given or written consent executed (and if given or
executed, shall not be effective) by such Stockholder with respect thereto.
All authority herein conferred or agreed to be conferred shall survive the
death or incapacity of any Stockholder and any obligation of such Stockholder
under this Agreement
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shall be binding upon the heirs, personal representatives, successors and
permitted assigns of such Stockholder.
Section 1.3 Evaluation of Investment. Each Stockholder, by reason
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of such Stockholder's knowledge and experience in financial and business
matters, is capable of evaluating the merits and risks of the investment in
AMCON Common Stock to be received pursuant to the Merger, contemplated by the
Merger Agreement.
Section 1.4 Documents Delivered. The Stockholder acknowledges
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receipt of copies of the following documents:
(a) the Merger Agreement and all schedules and exhibits
thereto;
(b) AMCON's Annual report on Form 10-K for the fiscal year
ended September 30, 1999;
(c) AMCON's Proxy Statement dated January 24, 2000;
(d) each report filed with the Securities and Exchange
Commission by AMCON on Forms 8-K and 10-Q since September 30, 1999;
and
(e) any other information reasonably requested by any
Stockholder concerning an evaluation of an investment in AMCON
Common Stock.
Each Stockholder also acknowledges that it possesses the information relating
to the Company which such Stockholder deems relevant to its investment in
AMCON Common Stock should the Merger be consummated.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of Each Stockholder.
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Except as set forth on the disclosure letter attached hereto, each
Stockholder represents and warrants to AMCON and Merger Sub as follows:
(a) Each Stockholder (if it is a corporation, general or
limited partnership, limited liability company or other legal
entity) is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or
organization. Such Stockholder has the requisite power and authority
(and if a natural person, the legal capacity) to execute and deliver
this Agreement and to perform its obligations hereunder. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by such
Stockholder and no other proceedings on the part of such Stockholder
are necessary to authorize this Agreement and the consummation of
the transactions contemplated hereby. This Agreement has been duly
executed and delivered by such Stockholder and, assuming that this
Agreement constitutes a valid and binding agreement of AMCON, is a
legal, valid and binding obligation of such Stockholder, enforceable
against such Stockholder in accordance with
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its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and similar laws,
now or hereafter in effect, relating to or affecting the rights and
remedies of creditors generally, and to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or a law) and to general principles governing
the duties of fiduciaries.
(b) The execution and delivery of this Agreement by such
Stockholder does not, and the performance of this Agreement by such
Stockholder will not, conflict with, result in any breach of or
constitute a default (or an event that with notice or lapse of time
or both would become a default) under, or give to others any rights
of termination, amendment, acceleration or cancellation of, or
require payment under, or result in the creation of any Encumbrances
(as defined in Section 5.1 below) on any of the assets of such
Stockholder pursuant to any contract or other instrument to which
such Stockholder is a party or by which such Stockholder or any of
such Stockholder's assets are bound, except for any thereof that
would not reasonably be expected to materially impair the ability of
such Stockholder to perform such Stockholder's obligations hereunder
or to consummate the transactions contemplated hereby.
(c) There is no suit, action, investigation or proceeding
pending or, to the knowledge of such Stockholder, threatened against
such Stockholder at law or in equity before or by any Governmental
Entity that would reasonably be expected to materially impair the
ability of such Stockholder to perform such Stockholder's
obligations hereunder or to consummate the transactions contemplated
hereby.
(d) Such Stockholder owns beneficially and of record the
shares of Company Common Stock set forth opposite such Stockholder's
name on Schedule I hereto (the "Existing Shares"). The Existing
Shares constitute all the shares of the Company Common Stock owned
of record or beneficially by such Stockholder. Such Stockholder has
sole voting power, sole power of disposition and all other
stockholder rights with respect to all the Existing Shares, with no
restrictions, other than pursuant to applicable securities laws, on
such Stockholder's rights of disposition pertaining thereto. Such
Stockholder owns options or warrants to purchase or other securities
convertible or exchangeable into or exercisable for the number of
shares of such Common Stock set forth opposite such Stockholder's
name on Schedule I hereto (collectively, the "Derivative
Securities"). None of the Existing Shares or Derivative Securities
is subject to (i) any right of first refusal or first offer, (ii)
right to purchase, acquire or vote, or (iii) proxy or power of
attorney, except in the case of clause (ii) or (iii) any rights
created by this Agreement. Such Stockholder has good and valid title
to all the Existing Shares, free and clear of all Encumbrances
(other than any Encumbrance created by this Agreement).
ARTICLE III
COVENANTS OF THE STOCKHOLDER
Section 3.1 No Solicitation. Each Stockholder and its
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Representatives shall immediately cease and cause to be terminated all
existing discussions or negotiations to which the Stockholder or its
officers, directors, employees, agents, accountants, counsel, advisors or
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consultants (collectively, "Representatives") are a part relating to an
Acquisition Proposal for the Company or any transaction referred to in
Section 3.1 or 3.2 with any parties conducted heretofore. From the date
hereof until the Effective Time or, if earlier, the termination of the Merger
Agreement pursuant to Article X thereof, each Stockholder shall not, whether
directly or indirectly through Representatives or other intermediaries, and
will instruct such Stockholder's Representatives not to, whether directly or
indirectly through Representatives or other intermediaries, initiate, solicit
or encourage (including by way of furnishing information or assistance), or
take any other action to facilitate, any inquiries or the making of any
proposal regarding a potential Acquisition Proposal for HNWC or any
transaction referred to in Section 3.1 or 3.2, or enter into or maintain
discussions or negotiate with any person regarding, in furtherance of or
relating to such inquiries or the making of a proposal regarding or
consummation of an Acquisition Proposal for HNWC or any transaction referred
to in Section 3.1 or 3.2, or agree to or endorse any Acquisition Proposal for
HNWC or any transaction referred to in Section 3.1 or 3.2, or disclose any
non-public information relating to the Company to any person that has made or
may reasonably be expected to make a proposal regarding an Acquisition
Proposal for HNWC or any transaction referred to in Section 3.1 or 3.2 or
that has advised the Company that it is or may be interested in making a
proposal regarding an Acquisition Proposal for HNWC or any transaction
referred to in Section 3.1 or 3.2, or authorize or permit any of such
Stockholder's Representatives to take any such action, and each Stockholder
shall use such Stockholder's reasonable best efforts to cause such
Stockholder's Representatives not to take any such action, and each
Stockholder shall promptly notify AMCON if any such inquiries or proposals
are made regarding a potential Acquisition Proposal for HNWC or any
transaction referred to in Section 3.1 or 3.2, and each Stockholder shall
promptly inform AMCON as to the terms and details of any such inquiry or
proposal (including the identity of the true party in interest making such
inquiry or proposal) and, if in writing, promptly deliver or cause to be
delivered to AMCON a copy of such inquiry or proposal, and each Stockholder
shall keep AMCON informed, on a current basis, of the status, terms and
details of any such inquiries or such proposals. Anything in this Section 3.1
to the contrary notwithstanding, nothing in this Section 3.1 shall limit any
individual Stockholder who is also a director of the Company, from exercising
or performing any of such Stockholder's rights or duties solely in such
Stockholder's capacity as a director of the Company.
Section 3.2 No Disposition of Shares Prior to Termination.
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(a) Each Stockholder hereby agrees that, until the Merger
Agreement is terminated in accordance with Article IX thereof, and
except pursuant to the Merger and any transactions contemplated by
the Merger Agreement, the Stockholder shall not (i) sell, transfer,
tender, assign, contribute to the capital of any Person, grant a
participation in or otherwise dispose of, or create, become a party
to, be bound by or permit to exist, any Encumbrance (other than any
Encumbrance created by this Agreement) of any nature with respect
to, any of the Shares or Other Securities or any interest therein
(or agree or consent to, or offer to do, any of the foregoing), (ii)
take any action that would reasonably be expected to make any
representation or warranty of such Stockholder herein materially
untrue or materially incorrect or have the effect of preventing or
disabling such Stockholder from performing such Stockholder's
obligations hereunder, or (iii) directly or indirectly, initiate,
solicit or encourage any Person to take actions that would
reasonably be expected to lead to the occurrence of any of the
foregoing.
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(b) Each Stockholder agrees that, so long as this Section
3.2 shall remain in effect, such Stockholder shall not request the
Company to register the transfer (book-entry or otherwise) of any
certificate or uncertificated interest evidencing any Shares or
Other Securities, unless such transfer is made pursuant to the
Merger or the transactions contemplated by the Merger Agreement. In
the event of a stock dividend or distribution, or any change in the
Company Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, for
all purposes of this Agreement, the term "Shares" or "Other
Securities," as the case may be, shall be deemed to refer to and
include the Shares or Other Securities, as the case may be, as well
as all such stock dividends and distributions and any shares into
which or for which any or all of such Shares or Other Securities may
be changed or exchanged.
(c) Each Stockholder hereby agrees and consents to the
entry of stop transfer instructions by the Company against transfer
of any Shares or Other Securities except pursuant to the
transactions or the proviso set forth in Section 3.2(a) above.
Section 3.3 Further Assurances. Each Stockholder agrees to use
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such Stockholder's reasonable best efforts to take, or cause to be taken, all
appropriate action, and to do, or cause to be done, all things necessary,
proper or advisable under applicable laws and regulations to consummate and
make effective the transactions contemplated by this Agreement, including,
but not limited to, the Merger or the transactions contemplated by the Merger
Agreement. If any further action is necessary or desirable to carry out the
purposes of this Agreement, such Stockholder shall use such Stockholder's
reasonable best efforts to take all such action as promptly as practicable.
Section 3.4 Legend. Each Stockholder will request the Company to
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have the certificates evidencing those shares which are owned of record or
beneficially by such Stockholder to bear substantially the following legend
and to request the Company to instruct its transfer agent to stop the
transfer of any certificates bearing such legend that is not made in
accordance with this Agreement:
THE TRANSFER OF AND VOTING OF THE SHARES REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO THE PRIOR RIGHTS AND LIMITATIONS IMPOSED
BY THE AMENDED AND RESTATED STOCKHOLDER AGREEMENT DATED AS OF
NOVEMBER 7, 2000 AMONG AMCON DISTRIBUTING COMPANY, A DELAWARE
CORPORATION, ANDREW MERGER SUB, INC., A DELAWARE CORPORATION, AND
CERTAIN STOCKHOLDERS WHO ARE SIGNATORIES THERETO. A COPY OF SUCH
AGREEMENT WILL BE FURNISHED BY THE COMPANY'S SECRETARY UPON WRITTEN
REQUEST AND WITHOUT CHARGE.
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ARTICLE IV
TERMINATION
Section 4.1 Termination. This Agreement shall terminate upon any
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termination of the Merger Agreement in accordance with Article IX thereof.
Section 4.2 Effect of Termination. In the event that this
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Agreement shall terminate pursuant to this Article IV, this Agreement shall
thereafter be void and the parties hereto shall have no further rights or
obligations with respect thereto, except as a result of any prior breach
thereof.
ARTICLE V
DEFINITIONS
Section 5.1 Definitions. For purposes of this Agreement:
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(a) "beneficially own" or "beneficial ownership" with
respect to any securities shall mean having "beneficial ownership"
of such securities (as determined pursuant to Rule 13d-3 under the
Securities Exchange Act of 1934, as amended), including pursuant to
any agreement, arrangement or understanding, whether or not in
writing. Securities beneficially owned by one Person shall include
securities beneficially owned by all other Persons with whom such
Person would constitute a "group" within the meaning of Section
13(d)(3) of the Exchange Act.
(b) "Person" shall mean an individual, corporation,
partnership, joint venture, association, trust, unincorporated
organization or other entity.
(c) "Encumbrance" means any pledge, security interest,
lien, claim, encumbrance, mortgage, charge, hypothecation, option,
right of first refusal or offer, community property right, other
marital right, preemptive right, voting agreement, voting trust,
proxy, power of attorney, escrow, option, forfeiture, penalty,
action at law or in equity, security agreement, shareholder
agreement or other agreement, arrangement, contract, commitment,
understanding or obligation, or any other restriction, qualification
or limitation on the use, transfer, right to vote, right to dissent,
and seek appraisal, receipt of income or other exercise of any
attribute of ownership, except for those which do not or could not
reasonably be expected to, individually or in the aggregate, impair
the ability of such Stockholder to perform such Stockholder's
obligations hereunder or to consummate the transactions contemplated
hereby.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Severability. If any term or other provision of this
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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
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economic or legal substance of this Agreement is not affected in any manner
materially 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 a
mutually acceptable manner in order that the terms of this Agreement remain
as originally contemplated to the fullest extent possible.
Section 6.2 Entire Agreement. This Agreement constitutes the
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entire agreement between Parent and each Stockholder with respect to the
subject matter hereof and supersedes all prior agreements and understandings,
both written and oral, between AMCON and such Stockholder with respect to the
subject matter hereof.
Section 6.3 Counterparts. This Agreement may be executed and
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delivered (including by facsimile transmission) in one or more counterparts,
and by the different parties hereto in separate counterparts, each of which
when executed and delivered shall be deemed to be an original but all of
which taken together shall constitute one and the same instrument.
Section 6.4 Assignment. Neither this Agreement nor any rights or
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interests hereunder shall be assigned by any Stockholder (whether by
operation of law or otherwise) without the prior written consent of AMCON.
AMCON may assign, in its sole discretion, its rights hereunder to any direct
or indirect wholly owned subsidiary or affiliate of AMCON, but no such
assignment shall relieve AMCON of its obligations hereunder if such assignee
does not perform such obligations.
Section 6.5 Amendments. This Agreement may not be amended,
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supplemented, waived or otherwise modified or terminated, except upon the
execution and delivery of a written agreement executed by the parties hereto.
Section 6.6 Notices. All notices, requests, claims, demands and
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other communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly received if so given) by hand delivery,
facsimile transmission, mail (registered or certified mail, postage prepaid,
return receipt requested), or courier service providing proof of delivery.
All communications hereunder shall be delivered to the respective parties at
the following addresses:
If to Stockholder, in accordance with the information set
forth on Schedule I hereto.
If to AMCON:
AMCON Distributing Company
10228 L Street
Omaha, Nebraska 68127
Attention: President
Telephone: (402) 331-3727
Fax:
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copies to:
Stinson, Mag & Fizzell, P.C.
1201 Walnut, Suite 2800
Kansas City, MO 64106
Attention: John A. Granda, Esq.
Telephone (816) 691-3188
Fax: (816) 691-3495
or to such other address as the person to whom notice is given may have
previously furnished the others in writing in the manner set forth above.
Section 6.7 No Third Party Beneficiaries. This Agreement is not
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intended to be for the benefit of, and shall not be enforceable by, any
person or entity not a party hereto.
Section 6.8 Specific Performance. Each of the parties hereto
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acknowledges that a breach by it of any agreement contained in this Agreement
may cause the other party to sustain damage for which it may not have an
adequate remedy at law for money damages, and therefore each of the parties
hereto agrees that in the event of any such breach the aggrieved party may be
entitled to the remedy of specific performance of such agreement and
injunctive and other equitable relief in addition to any other remedy to
which it may be entitled, at law or in equity.
Section 6.9 Remedies Cumulative. All rights, powers and remedies
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provided under this Agreement or otherwise available in respect hereof at law
or in equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
Section 6.10 No Waiver. The failure of any party hereto to exercise
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any right, power or remedy provided under this Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon strict
compliance by any other party hereto with its obligations hereunder, and any
custom or practice of the parties at variance with the terms hereof, shall
not constitute a waiver by such party of its right to exercise any such or
other right, power or remedy or to demand such compliance.
Section 6.11 Governing Law.
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(a) This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware, without
giving effect to the principles of conflicts of law thereof.
(b) Each party hereby irrevocably submits to the
exclusive jurisdiction of the Court of Chancery in the State of
Delaware in any action, suit or proceeding arising in connection
with this Agreement, and agrees that any such action, suit or
proceeding shall be brought only in such court (and waives any
objection based on forum non conveniens or any other objection to
venue therein); provided, however, that such consent to jurisdiction
is solely for the purpose referred to in this subsection (b) and
shall not be deemed to be a general submission to the jurisdiction
of such court or in the State of Delaware other than for such
purposes.
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Section 6.12 Waiver of Jury Trial. EACH OF AMCON, MERGER SUB AND
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EACH STOCKHOLDER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF
PARENT OR SUCH STOCKHOLDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE
AND ENFORCEMENT THEREOF.
Section 6.13 Descriptive Headings. The descriptive headings used
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herein are inserted for convenience of reference only and are not intended to
be part of or to affect the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
AMCON DISTRIBUTING COMPANY
By: /s/ William F. Wright
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Name: William F. Wright
Title: Chairman of the Board
HAWAIIAN NATURAL WATER
COMPANY, INC.
By: /s/ Marcus Bender
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Name: Marcus Bender
Title: President
STOCKHOLDERS:
HSC, Inc.
By: /s/ Michael Chagani
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Title: Treasurer
Hawaii Brewery Development Company, Inc.
By: /s/ Marcus Bender
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Title: President
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/s/ Marcus Bender
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Marcus Bender
/s/ Dennis Harris
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Dennis Harris
/s/ Wilhelm Kuhlmann
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Wilhelm Kuhlmann
/s/ Keijiro Sorimachi
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Keijiro Sorimachi
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SCHEDULE I
Shares Owned and Derivative
Name of Stockholder Certificate Number(s) Securities Owned Address for Notices
------------------- --------------------- ---------------- -------------------
HSC, Inc. 424,056
Hawaii Brewery 729,264
Development
Company, Inc.
Marcus Bender 647,965 483,333
Dennis Harris 263,040
Wilhelm Kuhlmann 1,243,600 1,188,932
Keijiro Sorimachi 119,090
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