-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, FLGX7IM1pt/wE2IKix694q1zIf9ITH0VwFS8U5msL/6Rk2XBFuoytgyyzz+HPV67 8D4+GxNvlmDojUPlN2rEuw== 0000950149-00-001082.txt : 20000515 0000950149-00-001082.hdr.sgml : 20000515 ACCESSION NUMBER: 0000950149-00-001082 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 10 CONFORMED PERIOD OF REPORT: 20000502 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 20000512 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ODWALLA INC CENTRAL INDEX KEY: 0000892058 STANDARD INDUSTRIAL CLASSIFICATION: CANNED, FRUITS, VEG & PRESERVES, JAMS & JELLIES [2033] IRS NUMBER: 770096788 STATE OF INCORPORATION: CA FISCAL YEAR END: 0831 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 000-23036 FILM NUMBER: 627166 BUSINESS ADDRESS: STREET 1: 120 STONE PINE ROAD STREET 2: DRAWER O CITY: HALF MOON BAY STATE: CA ZIP: 94019 BUSINESS PHONE: 4157261888 8-K 1 CURRENT REPORT DATED MAY 2, 2000 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------- FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported) May 2, 2000 --------------- ODWALLA, INC. -------------------------------------------------- (Exact name of registrant as specified in charter) CALIFORNIA 0-23036 77-0096788 (State or other jurisdiction (Commission File Number) (IRS Employer of incorporation) Identification No.)
120 STONE PINE ROAD, HALF MOON BAY, CA 94019 --------------------------------------------------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (650) 726-1888 ------------------ NONE ------------------ (Former name or former address, if changed since last report.) 2 ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS. On May 2, 2000, Odwalla, Inc. ("Registrant") completed its acquisition of Fresh Samantha, Inc. ("Fresh Samantha"), a privately-held company, in accordance with the previously announced Agreement and Plan of Merger ("Merger Agreement") dated February 2, 2000. In the merger, a wholly owned subsidiary of Registrant was merged with and into Fresh Samantha with Fresh Samantha surviving as a wholly owned subsidiary of Registrant. Registrant issued 3,612,122 shares of Registrant's common stock in exchange for all outstanding stock of Fresh Samantha. The acquisition was accounted for as a purchase. The price of Registrant's common stock at the close of trading on May 2, 2000 was $6.375, making the market value of the Registrant's common stock issued in consideration for the outstanding stock of Fresh Samantha equal to approximately $23 million as of such date. Concurrently with the consummation of the merger, Registrant also issued shares of Registrant's common stock to three funds managed by Wasserstein Perella Group, Inc. (the "Wasserstein Perella Funds") and to Catterton-Simon Partners III, L.P. (the "Catterton-Simon Partners"). Pursuant to a Stock Purchase Agreement (the "Purchase Agreement"), dated as of February 11, 2000, and amended as of April 25, 2000, among Registrant, U.S. Equity Partners, L.P., and the Catterton-Simon Partners, Registrant issued 800,641 shares of the Registrant's common stock to the Wasserstein Perella Funds for an aggregate purchase price of approximately $5 million. Registrant also agreed, pursuant to the Purchase Agreement, to issue on or about May 25, 2000, an additional 160,128 shares of Registrant's common stock to Catterton-Simon Partners for an aggregate purchase price of approximately $1 million. In addition, under a Preferred Stock Conversion Agreement, dated as of February 11, 2000, between Registrant and Catterton-Simon Partners, Registrant issued 1,333,333 shares of Registrant's common stock to Catterton-Simon Partners in exchange for 1,074,666 shares of Registrant's Series A Preferred Stock, representing all of the outstanding shares of such stock, held by Catterton-simon Partners and cancellation of a warrant to purchase 75,000 shares of Registrant's common stock, held by Catterton-Simon Partners. After completion of these transactions, including the anticipated issuance of common stock to Catterton-Simon Partners later this month, Registrant has 11,031,985 shares of common stock outstanding. The stock ownership by the former Fresh Samantha shareholders, Catterton-Simon Partners and Wasserstein Perella Funds is approximately 32.7%, 13.5% and 7.3%, respectively. The completion of the acquisition and the issuance of common stock, including the reacquisition of the Series A Preferred Stock, followed approval by Registrant's shareholders of the proposals to effect the merger and the related transactions at the Annual Shareholders Meeting on April 25, 2000. The following matters were voted upon at the annual meeting: 1. Approve the merger and the issuance of shares of Registrant common stock pursuant to the Agreement and Plan of Merger, dated as of February 2, 2000, by and among Registrant, Orange Acquisition Sub, Inc., and Fresh Samantha, Inc. The results of the voting were as follows: Number of shares voted FOR 3,595,913 Number of shares voted AGAINST 25,029 Number of shares voted ABSTAINING 19,523 3 2. Approve the amendment to the Certificate of Designation of the Series A Preferred stock to permit the conversion of the shares of Series A Preferred Stock held by Catterton-Simon Partners into shares of Registrant's common stock based on a conversion ratio of 1.2407-to-1, rather than on the conversion ratio of 1-to-1 set forth in the existing Certificate of Designation. The results of the voting were as follows: Number of shares voted FOR 3,290,089 Number of shares voted AGAINST 196,624 Number of shares voted ABSTAINING 163,752 3. Approve the adoption of an amendment to Registrant's 1997 Stock Option/Stock Issuance Plan to increase the number of shares of Registrant's common stock authorized for issuance thereunder from 1,648,475 shares to 2,148,475 shares. The results of the voting were as follows: Number of shares voted FOR 3,280,074 Number of shares voted AGAINST 201,591 Number of shares voted ABSTAINING 158,200 4. Elect six directors of Registrant to serve until the 2001 annual meeting of shareholders or until their successors are elected and qualified. The results of the voting were as follows: For Withheld --------- -------- D. Stephen C. Williamson 5,444,934 514,583 Richard Grubman 5,174,611 784,906 Ranzell Nickelson, II 5,167,625 791,892 Martin S. Gans 5,174,661 784,856 Craig H. Sakin 5,770,923 188,594 Greg A. Steltenpohl 5,792,283 167,234 5. Ratify the appointment of PricewaterhouseCoopers LLP as independent accountants of Registrant for the fiscal year ending September 2, 2000. The results of the voting were as follows: Number of shares voted FOR 5,930,488 Number of shares voted AGAINST 10,566 Number of shares voted ABSTAINING 18,463 4 On May 2, 2000, as provided in the Merger Agreement, the Shareholders' Rights Agreement, dated May 2, 2000, among the Registrant, Samantha Investors, LLC, and the shareholders of Registrant and other persons named therein, and the Letter Agreement, dated May 1, 2000, from Bain Capital Fund VI, L.P. to Registrant and Catterton-Simon Partners III, L.P., at the effective time of the merger, Registrant's board of directors was increased to seven members, directors Martin S. Gans, Ranzell Nickelson and Greg A. Steltenpohl resigned and Andrew E. Balson, and Mark E. Nunnelly, as nominees of Bain Capital Inc. ("Bain"), and Ellis B. Jones, as nominee for Wasserstein Perella Funds, were elected to Registrant's board of directors on May 2, 2000. The parties to the Shareholders' Rights Agreement agreed to elect a nominee of Bain as the seventh member of the board of directors. On April 28, 2000, in anticipation of the May 2, 2000 closing of the merger, Registrant completed an amendment to its existing credit agreement with Imperial Bank. The amendment increased Registrant's line of credit from $5.0 million to $10.0 million under terms generally similar to the current credit agreement. A copy of the press release issued on May 3, 2000 in connection with the above transaction is incorporated herein by reference and is attached hereto as Exhibit 99. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS. The financial statements and pro forma financial information required to be filed pursuant to Items 7(a) and 7(b) will be filed by amendment prior to July 15, 2000. (c) Exhibits.
Exhibit Number Description ------ ----------- 2.1 Amended By-Laws of Odwalla, Inc. dated May 2, 2000 10.1 Employment Agreement dated May 2, 2000 between Registrant and Douglas L. Levin 10.2 Amendment Agreement dated April 28, 2000 between Registrant and Imperial Bank 10.3 Stock Purchase Agreement dated February 11, 2000 between Registrant, U.S. Equity Partners, L.P. and Catterton-Simon Partners III, L.P. 10.4 Amendment No. 1 to the Stock Purchase Agreement dated April 25, 2000 between Registrant, U.S. Equity Partners, L.P., U.S. Equity Partners (Offshore), L.P., Catterton-Simon Partners III, L.P., and BancBoston Investments, Inc. 10.5 Shareholders Rights Agreement dated May 2, 2000 among Registrant, Samantha Investors, LLC, and the shareholders of Registrant and other persons named therein. 10.6 Preferred Stock Conversion Agreement dated as of April 24, 2000, between Registrant and Catterton-Simon Partners III, L.P. 10.7 Letter Agreement, dated May 1, 2000, from Bain Capital Fund VI, L.P., to Registrant and Catterton-Simon Partners III, L.P. 10.8* Agreement and Plan of Merger dated February 2, 2000 between Registrant, Fresh Samantha, Inc., and Orange Acquisition Sub, Inc. 99 Press Release dated May 3, 2000.
* Incorporated by reference to the Registrant's definitive Proxy Statement dated March 16, 2000 5 SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. ODWALLA, INC. DATE: May 10, 2000 By: /s/ James R. Steichen ------------------------- Name: James R. Steichen Title: Senior Vice President - Finance, and Chief Financial Officer EX-2.1 2 AMENDED AND RESTATED BYLAWS OF ODWALLA, INC. 1 EXHIBIT 2.1 AMENDED AND RESTATED BYLAWS OF ODWALLA, INC. (ADOPTED ON DECEMBER 15, 1993) (AS AMENDED THROUGH MAY 2, 2000) 2 TABLE OF CONTENTS
Page ---- Article I. Offices............................................................................................. 1 Section 1. Principal Office................................................................ 1 Section 2. Other Offices................................................................... 1 Article II. Corporate Seal..................................................................................... 1 Section 3. Corporate Seal.................................................................. 1 Article III. Shareholders' Meetings and Voting Rights.......................................................... 1 Section 4. Place of Meetings............................................................... 1 Section 5. Annual Meetings................................................................. 1 Section 6. Postponement of Annual Meeting.................................................. 2 Section 7. Special Meetings................................................................ 2 Section 8. Notice of Meetings.............................................................. 2 Section 9. Manner of Giving Notice......................................................... 3 Section 10. Quorum and Transaction of Business.............................................. 4 Section 11. Adjournment and Notice of Adjourned Meetings.................................... 4 Section 12. Waiver of Notice, Consent to Meeting or Approval of Minutes..................... 4 Section 13. Action by Written Consent Without a Meeting..................................... 5 Section 14. Voting.......................................................................... 6 Section 15. Persons Entitled to Vote or Consent............................................. 6 Section 16. Proxies......................................................................... 7 Section 17. Inspectors of Election.......................................................... 7 Article IV. Board of Directors ................................................................................ 8 Section 18. Powers.......................................................................... 8 Section 19. Number of Directors............................................................. 8 Section 20. Election of Directors, Term, Qualifications..................................... 9 Section 21. Resignations.................................................................... 9 Section 22. Removal......................................................................... 9 Section 23. Vacancies....................................................................... 9 Section 24. Regular Meetings................................................................ 9 Section 25. Participation by Telephone...................................................... 10 Section 26. Special Meetings................................................................ 10 Section 27. Notice of Meetings.............................................................. 10 Section 28. Place of Meetings............................................................... 10 Section 29. Action by Written Consent Without a Meeting..................................... 10 Section 30. Quorum and Transaction of Business.............................................. 10 Section 31. Adjournment..................................................................... 11 Section 32. Organization.................................................................... 11 Section 33. Compensation.................................................................... 11 Section 34. Committees...................................................................... 11
3 Article V. Officers............................................................................................ 12 Section 35. Officers.......................................................................... 12 Section 36. Appointment....................................................................... 12 Section 37. Inability to Act.................................................................. 12 Section 38. Resignations...................................................................... 12 Section 39. Removal........................................................................... 12 Section 40. Vacancies......................................................................... 13 Section 41. Chairman of the Board............................................................. 13 Section 42. Chief Executive Officer........................................................... 13 Section 43. President......................................................................... 13 Section 44. Vice Presidents............. ..................................................... 13 Section 45. Secretary......................................................................... 14 Section 46. Chief Financial Officer........................................................... 14 Section 47. Compensation...................................................................... 15 Article VI. Contracts, Loans, Bank Accounts, Checks and Drafts................................................. 15 Section 48. Execution of Contracts and Other Instruments..................................... 15 Section 49. Loans............................................................................ 15 Section 50. Bank Accounts.................................................................... 16 Section 51. Checks, Drafts, Etc.............................................................. 16 Article VII. Certificates For Shares and Their Transfer........................................................ 16 Section 52. Certificate for Shares........................................................... 16 Section 53. Transfer on the Books............................................................ 16 Section 54. Lost, Destroyed and Stolen Certificates.......................................... 17 Section 55. Issuance, Transfer and Registration of Shares.................................... 17 Article VIII. Inspection Of Corporate Records.................................................................. 17 Section 56. Inspection by Directors.......................................................... 17 Section 57. Inspection by Shareholders....................................................... 17 Section 58. Written Form..................................................................... 18 Article IX. Miscellaneous...................................................................................... 19 Section 59. Fiscal Year...................................................................... 19 Section 60. Annual Report.................................................................... 19 Section 61. Record Date...................................................................... 19 Section 62. Bylaw Amendments................................................................. 20 Section 63. Construction and Definition...................................................... 20 Article X. Indemnification..................................................................................... 20 Section 64. Indemnification of Directors, Officers, Employees And Other Agents................................................................... 20 Article XI. Loans of Officers and Others....................................................................... 24 Section 65. Certain Corporate Loans and Guarantees.......................................... 24
4 BYLAWS OF ODWALLA, INC. (ADOPTED ON DECEMBER 15, 1993) (AS AMENDED THROUGH MAY 2, 2000) ARTICLE I OFFICES SECTION 1. PRINCIPAL OFFICE. The principal executive office of the corporation shall be located at such place as the Board of Directors may from time to time authorize. If the principal executive office is located outside this state, and the corporation has one or more business offices in this state, the Board of Directors shall fix and designate a principal business office in the State of California. SECTION 2. OTHER OFFICES. Additional offices of the corporation shall be located at such place or places, within or outside the State of California, as the Board of Directors may from time to time authorize. ARTICLE II CORPORATE SEAL SECTION 3. CORPORATE SEAL. If the Board of Directors adopts a corporate seal such seal shall have inscribed thereon the name of the corporation and the state and date of its incorporation. If and when a seal is adopted by the Board of Directors, such seal may be engraved, lithographed, printed, stamped, impressed upon, or affixed to any contract, conveyance, certificate for shares or other instrument executed by the corporation. ARTICLE III SHAREHOLDERS' MEETINGS AND VOTING RIGHTS SECTION 4. PLACE OF MEETINGS. Meetings of shareholders shall be held at the principal executive office of the corporation, or at any other place, within or outside the State of California, which may be fixed either by the Board of Directors or by the written consent of all persons entitled to vote at such meeting, given either before or after the meeting and filed with the Secretary of the corporation. SECTION 5. ANNUAL MEETINGS. The annual meeting of the shareholders of the corporation shall be held at the hour of nine o'clock a.m. local time, on the second Friday in December in each year if such date is not a legal holiday observed by the corporation at its principal executive office, and if it is such a legal holiday, then on the next succeeding full business day at the same time. At such annual meeting directors shall be elected and any other business may be transacted which may properly come before the meeting. 1 5 SECTION 6. POSTPONEMENT OF ANNUAL MEETING. The Board of Directors and the President shall each have authority to hold at an earlier date and/or time, or to postpone to a later date and/or time, the annual meeting of shareholders. SECTION 7. SPECIAL MEETINGS. (a) Special meetings of the shareholders, for any purpose or purposes, may be called by the Board of Directors, the Chairman of the Board of Directors, the President, or the holders of shares entitled to cast not less than ten percent (10%) of the votes at the meeting. (b) Upon written request to the Chairman of the Board of Directors, the President, any vice president or the Secretary of the corporation by any person or persons (other than the Board of Directors) entitled to call a special meeting of the shareholders, such officer forthwith shall cause notice to be given to the shareholders entitled to vote, that a meeting will be held at a time requested by the person or persons calling the meeting, such time to be not less than thirty-five (35) nor more than sixty (60) days after receipt of such request. If such notice is not given within twenty (20) days after receipt of such request, the person or persons calling the meeting may give notice thereof in the manner provided by law or in these bylaws. Nothing contained in this Section 7 shall be construed as limiting, fixing or affecting the time or date when a meeting of shareholders called by action of the Board of Directors may be held. SECTION 8. NOTICE OF MEETINGS. Except as otherwise may be required by law and subject to subsection 7(b) above, written notice of each meeting of shareholders shall be given to each shareholder entitled to vote at that meeting (see Section 15 below), by the Secretary, assistant secretary or other person charged with that duty, not less than ten (10) (or, if sent by third class mail, thirty (30)) nor more than sixty (60) days before such meeting. Notice of any meeting of shareholders shall state the date, place and hour of the meeting and, (a) in the case of a special meeting, the general nature of the business to be transacted, and no other business may be transacted at such meeting; (b) in the case of an annual meeting, the general nature of matters which the Board of Directors, at the time the notice is given, intends to present for action by the shareholders; (c) in the case of any meeting at which directors are to be elected, the names of the nominees intended at the time of the notice to be presented by management for election; and (d) in the case of any meeting, if action is to be taken on any of the following proposals, the general nature of such proposal: (1) a proposal to approve a transaction within the provisions of California Corporations Code, Section 310 (relating to certain transactions in which a director has a direct or indirect financial interest); 2 6 (2) a proposal to approve a transaction within the provisions of California Corporations Code, Section 902 (relating to amending the Articles of Incorporation of the corporation); (3) a proposal to approve a transaction within the provisions of California Corporations Code, Sections 181 and 1201 (relating to reorganization); (4) a proposal to approve a transaction within the provisions of California Corporations Code, Section 1900 (winding up and dissolution); (5) a proposal to approve a plan of distribution within the provisions of California Corporations Code, Section 2007 (relating to certain plans providing for distribution not in accordance with the liquidation rights of preferred shares, if any). At a special meeting, notice of which has been given in accordance with this Section 8, action may not be taken with respect to business, the general nature of which has not been stated in such notice. At an annual meeting, action may be taken with respect to business stated in the notice of such meeting, given in accordance with this Section 8, and, subject to subsection 8(d) above, with respect to any other business as may properly come before the meeting. SECTION 9. MANNER OF GIVING NOTICE. Notice of any meeting of shareholders shall be given either personally or by first-class mail, or, if the corporation has outstanding shares held of record by 500 or more persons (determined as provided in California Corporations Code Section 605) on the record date for such meeting, third-class mail, or telegraphic or other written communication, addressed to the shareholder at the address of that shareholder appearing on the books of the corporation or given by the shareholder to the corporation for the purpose of notice. If no such address appears on the corporation's books or is given, notice shall be deemed to have been given if sent to that shareholder by first-class mail or telegraphic or other written communication to the corporation's principal executive office, or if published at least once in a newspaper of general circulation in the county where that office is located. Notice shall be deemed to have been given at the time when delivered personally or deposited in the mail or sent by telegram or other means of written communication. If any notice addressed to a shareholder at the address of that shareholder appearing on the books of the corporation is returned to the corporation by the United States Postal Service marked to indicate that the United States Postal Service is unable to deliver the notice to the shareholder at that address, all future notices shall be deemed to have been duly given without further mailing if these shall be available to the shareholder on written demand by the shareholder at the principal executive office of the corporation for a period of one year from the date of the giving of the notice. An affidavit of mailing of any notice or report in accordance with the provisions of this Section 9, executed by the Secretary, Assistant Secretary or any transfer agent, shall be prima facie evidence of the giving of the notice. 3 7 SECTION 10. QUORUM AND TRANSACTION OF BUSINESS. (a) At any meeting of the shareholders, a majority of the shares entitled to vote, represented in person or by proxy, shall constitute a quorum. If a quorum is present, the affirmative vote of the majority of shares represented at the meeting and entitled to vote on any matter shall be the act of the shareholders, unless the vote of a greater number or voting by classes is required by law or by the Articles of Incorporation, and except as provided in subsection (b) below. (b) The shareholders present at a duly called or held meeting of the shareholders at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum, provided that any action taken (other than adjournment) is approved by at least a majority of the shares required to constitute a quorum. (c) In the absence of a quorum, no business other than adjournment may be transacted, except as described in subsection (b) above. SECTION 11. ADJOURNMENT AND NOTICE OF ADJOURNED MEETINGS. Any meeting of shareholders may be adjourned from time to time, whether or not a quorum is present, by the affirmative vote of a majority of shares represented at such meeting either in person or by proxy and entitled to vote at such meeting. In the event any meeting is adjourned, it shall not be necessary to give notice of the time and place of such adjourned meeting pursuant to Sections 8 and 9 of these bylaws; provided that if any of the following three events occur, such notice must be given: (a) announcement of the adjourned meeting's time and place is not made at the original meeting which it continues or (b) such meeting is adjourned for more than forty-five (45) days from the date set for the original meeting or (c) a new record date is fixed for the adjourned meeting. At the adjourned meeting, the corporation may transact any business that might have been transacted at the original meeting. SECTION 12. WAIVER OF NOTICE, CONSENT TO MEETING OR APPROVAL OF MINUTES. (a) Subject to subsection (b) of this Section, the transactions of any meeting of shareholders, however called and noticed, and wherever held, shall be as valid as though made at a meeting duly held after regular call and notice, if a quorum is present either in person or by proxy, and if, either before or after the meeting, each of the persons entitled to vote but not present in person or by proxy signs a written waiver of notice or a consent to holding of the meeting or an approval of the minutes thereof. 4 8 (b) A waiver of notice, consent to the holding of a meeting or approval of the minutes thereof need not specify the business to be transacted or transacted at nor the purpose of the meeting; provided that in the case of proposals described in subsection (d) of Section 8 of these bylaws, the general nature of such proposals must be described in any such waiver of notice and such proposals can only be approved by waiver of notice, not by consent to holding of the meeting or approval of the minutes. (c) All waivers, consents and approvals shall be filed with the corporate records or made a part of the minutes of the meeting. (d) A person's attendance at a meeting shall constitute waiver of notice of and presence at such meeting, except when such person objects at the beginning of the meeting to transaction of any business because the meeting is not lawfully called or convened and except that attendance at a meeting is not a waiver of any right to object to the consideration of matters that are required by law or these bylaws to be in such notice (including those matters described in subsection (d) of Section 8 of these bylaws), but are not so included if such person expressly objects to consideration of such matter or matters at any time during the meeting. SECTION 13. ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Any action that may be taken at any meeting of shareholders may be taken without a meeting and without prior notice if written consents setting forth the action so taken are signed by the holders of the outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Directors may not be elected by written consent except by unanimous written consent of all shares entitled to vote for the election of directors; provided that any vacancy on the Board of Directors (other than a vacancy created by removal) which has not been filled by the board of directors may be filled by the written consent of a majority of outstanding shares entitled to vote for the election of directors. Any written consent may be revoked pursuant to California Corporations Code Section 603(c) prior to the time that written consents of the number of shares required to authorize the proposed action have been filed with the Secretary. Such revocation must be in writing and will be effective upon its receipt by the Secretary. If the consents of all shareholders entitled to vote have not been solicited in writing, and if the unanimous written consent of all such shareholders shall not have been received, the Secretary shall give prompt notice of any corporate action approved by the shareholders without a meeting to those shareholders entitled to vote on such matters who have not consented thereto in writing. This notice shall be given in the manner specified in Section 9 of these bylaws. In the case of approval of (i) a transaction within the provisions of California Corporations Code, Section 310 (relating to certain transactions in which a director has an interest), (ii) a transaction within the provisions of California Corporations Code, Section 317 (relating to indemnification of agents of the corporation), (iii) a transaction within the provisions of California Corporations Code, Sections 181 and 1201 (relating to reorganization), and (iv) a plan of distribution within the provisions of California Corporations Code, Section 2007 (relating to certain plans providing for distribution not in accordance with the liquidation rights of preferred shares, if any), the notice shall be given at least ten (10) days before the consummation of any action authorized by that approval. 5 9 SECTION 14. VOTING. The shareholders entitled to vote at any meeting of shareholders shall be determined in accordance with the provisions of Section 15 of these bylaws, subject to the provisions of Sections 702 through 704 of the California Corporations Code (relating to voting shares held by a fiduciary, in the name of a corporation, or in joint ownership). Voting at any meeting of shareholders need not be by ballot; provided, however, that elections for directors must be by ballot if balloting is demanded by a shareholder at the meeting and before the voting begins. Until such time as this corporation becomes a listed corporation within the meaning of Section 301.5 of the California Corporations Code, every person entitled to vote at an election for directors may cumulate the votes to which such person is entitled, i.e., such person may cast a total number of votes equal to the number of directors to be elected multiplied by the number of votes to which such person's shares are entitled, and may cast said total number of votes for one or more candidates in such proportions as such person thinks fit; provided, however, no shareholder shall be entitled to so cumulate such shareholder's votes unless the candidates for which such shareholder is voting have been placed in nomination prior to the voting and a shareholder has given notice at the meeting, prior to the vote, of an intention to cumulate votes. In any election of directors, the candidates receiving the highest number of votes, up to the number of directors to be elected, are elected. Except as may be otherwise provided in the Articles of Incorporation or by law, and subject to the foregoing provisions regarding the accumulation of votes, each shareholder shall be entitled to one vote for each share held; provided, however, that the right to cumulative voting provided for above shall be eliminated at such time as this corporation becomes a listed corporation within the meaning of Section 301.5 of the California Corporations Code. Any shareholder may vote part of such shareholder's shares in favor of a proposal and refrain from voting the remaining shares or vote them against the proposal, other than elections to office, but, if the shareholder fails to specify the number of shares such shareholder is voting affirmatively, it will be conclusively presumed that the shareholder's approving vote is with respect to all shares such shareholder is entitled to vote. No shareholder approval, other than unanimous approval of those entitled to vote, will be valid as to proposals described in subsection 8(d) of these bylaws unless the general nature of such business was stated in the notice of meeting or in any written waiver of notice. SECTION 15. PERSONS ENTITLED TO VOTE OR CONSENT. The Board of Directors may fix a record date pursuant to Section 61 of these bylaws to determine which shareholders are entitled to notice of and to vote at a meeting or consent to corporate actions, as provided in Sections 13 and 14 of these bylaws. Only persons in whose name shares otherwise entitled to vote stand on the stock records of the corporation on such date shall be entitled to vote or consent. 6 10 If no record date is fixed: (a) The record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the business day next preceding the day notice is given or, if notice is waived, at the close of business on the business day next preceding the day on which the meeting is held; (b) The record date for determining shareholders entitled to give consent to corporate action in writing without a meeting, when no prior action by the Board of Directors has been taken, shall be the day on which the first written consent is given; (c) The record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto, or the sixtieth (60th) day prior to the date of such other action, whichever is later. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting unless the Board of Directors fixes a new record date for the adjourned meeting; provided, however, that the Board of Directors shall fix a new record date if the meeting is adjourned for more than forty-five (45) days from the date set for the original meeting. Shares of the corporation held by its subsidiary or subsidiaries (as defined in California Corporations Code, Section 189(b)) are not entitled to vote in any matter. SECTION 16. PROXIES. Every person entitled to vote or execute consents may do so either in person or by one or more agents authorized to act by a written proxy executed by the person or such person's duly authorized agent and filed with the Secretary of the corporation; provided that no such proxy shall be valid after the expiration of eleven (11) months from the date of its execution unless otherwise provided in the proxy. The manner of execution, suspension, revocation, exercise and effect of proxies is governed by law. SECTION 17. INSPECTORS OF ELECTION. Before any meeting of shareholders, the Board of Directors may appoint any persons, other than nominees for office, to act as inspectors of election at the meeting or its adjournment. If no inspectors of election are so appointed, the chairman of the meeting may, and on the request of any shareholder or a shareholder's proxy shall, appoint inspectors of election at the meeting. The number of inspectors shall be either one (1) or three (3). If inspectors are appointed at a meeting on the request of one or more shareholders or proxies, the majority of shares represented in person or by proxy shall determine whether one (1) or three (3) inspectors are to be appointed. If any person appointed as inspector fails to appear or fails or refuses to act, the chairman of the meeting may, and upon the request of any shareholder or a shareholder's proxy shall, appoint a person to fill that vacancy. These inspectors shall: (a) Determine the number of shares outstanding and the voting power of each, the shares represented at the meeting, the existence of a quorum, and the authenticity, validity, and effect of proxies; 7 11 (b) Receive votes, ballots, or consents; (c) Hear and determine all challenges and questions in any way arising in connection with the right to vote; (d) Count and tabulate all votes or consents; (e) Determine when the polls shall close; (f) Determine the result; and (g) Do any other acts that may be proper to conduct the election or vote with fairness to all shareholders. ARTICLE IV BOARD OF DIRECTORS SECTION 18. POWERS. Subject to the provisions of law or any limitations in the Articles of Incorporation or these bylaws, as to action required to be approved by the shareholders or by the outstanding shares, the business and affairs of the corporation shall be managed and all corporate powers shall be exercised, by or under the direction of the Board of Directors. The Board of Directors may delegate the management of the day-to-day operation of the business of the corporation to a management company or other person, provided that the business and affairs of the corporation shall be managed and all corporate powers shall be exercised under the ultimate direction of the Board of Directors. SECTION 19. NUMBER OF DIRECTORS. The authorized number of directors of the corporation shall be not less than a minimum of five (5) nor more than a maximum of nine (9) (which maximum number in no case shall be greater than two times said minimum, minus one) and the number of directors presently authorized is seven (7). The exact number of directors shall be set within these limits from time to time (a) by approval of the Board of Directors, or (b) by the affirmative vote of a majority of the shares represented and voting at a duly held meeting at which a quorum is present (which shares voting affirmatively also constitute at least a majority of the required quorum) or by the written consent of shareholders pursuant to Section 13 hereinabove. Any amendment of these bylaws changing the maximum or minimum number of directors may be adopted only by the affirmative vote of a majority of the outstanding shares entitled to vote; provided, an amendment reducing the minimum number of directors to less than five (5), cannot be adopted if votes cast against its adoption at a meeting or the shares not consenting to it in the case of action by written consent are equal to more than 16-2/3 percent of the outstanding shares entitled to vote. No reduction of the authorized number of directors shall remove any director prior to the expiration of such director's term of office. 8 12 SECTION 20. ELECTION OF DIRECTORS, TERM, QUALIFICATIONS. The directors shall be elected at each annual meeting of shareholders to hold office until the next annual meeting. Each director, including a director elected or appointed to fill a vacancy, shall hold office either until the expiration of the term for which elected or appointed and until a successor has been elected and qualified, or until his death, resignation or removal. Directors need not be shareholders of the corporation. SECTION 21. RESIGNATIONS. Any director of the corporation may resign effective upon giving written notice to the Chairman of the Board, the President, the Secretary or the Board of Directors of the corporation, unless the notice specifies a later time for the effectiveness of such resignation. If the resignation specifies effectiveness at a future time, a successor may be elected pursuant to Section 23 of these bylaws to take office on the date that the resignation becomes effective. SECTION 22. REMOVAL. The Board of Directors may declare vacant the office of a director who has been declared of unsound mind by an order of court or who has been convicted of a felony. The entire Board of Directors or any individual director may be removed from office without cause by the affirmative vote of a majority of the outstanding shares entitled to vote on such removal; provided, however, that unless the entire Board is removed, no individual director may be removed when the votes cast against such director's removal, or not consenting in writing to such removal, would be sufficient to elect that director if voted cumulatively at an election at which the same total number of votes cast were cast (or, if such action is taken by written consent, all shares entitled to vote were voted) and the entire number of directors authorized at the time of such director's most recent election were then being elected. SECTION 23. VACANCIES. A vacancy or vacancies on the Board of Directors shall be deemed to exist in case of the death, resignation or removal of any director, or upon increase in the authorized number of directors or if shareholders fail to elect the full authorized number of directors at an annual meeting of shareholders or if, for whatever reason, there are fewer directors on the Board of Directors than the full number authorized. Such vacancy or vacancies may be filled by a majority of the remaining directors, though less than a quorum, or by a sole remaining director. The shareholders may elect a director at any time to fill any vacancy not filled by the directors. Any such election by written consent, other than to fill a vacancy created by removal, requires the consent of a majority of the outstanding shares entitled to vote. Any such election by written consent to fill a vacancy created by removal requires the consent of all of the outstanding shares entitled to vote. If, after the filling of any vacancy by the directors, the directors then in office who have been elected by the shareholders constitute less than a majority of the directors then in office, any holder or holders of an aggregate of five percent (5%) or more of the shares outstanding at that time and having the right to vote for such directors may call a special meeting of shareholders to be held to elect the entire Board of Directors. The term of office of any director shall terminate upon such election of a successor. SECTION 24. REGULAR MEETINGS. Immediately after each annual meeting of shareholders, and at such place fixed by the Board of Directors, or if no such place is fixed, at the place of the annual meeting, the Board of Directors shall hold a regular meeting for the purposes 9 13 of organization, the appointment of officers and the transaction of other business. Other regular meetings of the Board of Directors shall be held at such times, places and dates as fixed in these bylaws or by the Board of Directors; provided, however, that if the date for such a meeting falls on a legal holiday, then the meeting shall be held at the same time on the next succeeding full business day. Regular meetings of the Board of Directors held pursuant to this Section 24 may be held without notice. SECTION 25. PARTICIPATION BY TELEPHONE. Members of the Board of Directors may participate in a meeting through use of conference telephone or similar communications equipment, so long as all members participating in such meeting can hear one another. Such participation constitutes presence in person at such meeting. SECTION 26. SPECIAL MEETINGS. Special meetings of the Board of Directors for any purpose may be called by the Chairman of the Board or the President or any vice president or the Secretary of the corporation or any two (2) directors. SECTION 27. NOTICE OF MEETINGS. Notice of the date, time and place of all meetings of the Board of Directors, other than regular meetings held pursuant to Section 24 above, shall be delivered personally, orally or in writing, or by telephone or telegraph to each director, at least forty-eight (48) hours before the meeting, or sent in writing to each director by first-class mail, charges prepaid, at least four (4) days before the meeting. Such notice may be given by the Secretary of the corporation or by the person or persons who called a meeting. Such notice need not specify the purpose of the meeting. Notice of any meeting of the Board of Directors need not be given to any director who signs a waiver of notice of such meeting, or a consent to holding the meeting or an approval of the minutes thereof, either before or after the meeting, or who attends the meeting without protesting prior thereto or at its commencement such director's lack of notice. All such waivers, consents and approvals shall be filed with the corporate records or made a part of the minutes of the meeting. SECTION 28. PLACE OF MEETINGS. Meetings of the Board of Directors may be held at any place within or without the state which has been designated in the notice of the meeting or, if not stated in the notice or there is no notice, designated in the bylaws or by resolution of the Board of Directors. SECTION 29. ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Any action required or permitted to be taken by the Board of Directors may be taken without a meeting, if all members of the Board of Directors individually or collectively consent in writing to such action. Such written consent or consents shall be filed with the minutes of the proceedings of the Board of Directors. Such action by written consent shall have the same force and effect as a unanimous vote of such directors. SECTION 30. QUORUM AND TRANSACTION OF BUSINESS. A majority of the authorized number of directors shall constitute a quorum for the transaction of business. Every act or decision done or made by a majority of the authorized number of directors present at a meeting duly held at which a quorum is present shall be the act of the Board of Directors, unless the law, the Articles of Incorporation or these bylaws specifically require a greater number. A meeting at which a quorum is initially present may continue to transact business, notwithstanding withdrawal of directors, if any action taken is approved by at least a majority of the number of directors constituting a quorum for such meeting. In the absence of a quorum at any meeting of 10 14 the Board of Directors, a majority of the directors present may adjourn the meeting, as provided in Section 31 of these bylaws. SECTION 31. ADJOURNMENT. Any meeting of the Board of Directors, whether or not a quorum is present, may be adjourned to another time and place by the affirmative vote of a majority of the directors present. If the meeting is adjourned for more than twenty-four (24) hours, notice of such adjournment to another time or place shall be given prior to the time of the adjourned meeting to the directors who were not present at the time of the adjournment. SECTION 32. ORGANIZATION. The Chairman of the Board shall preside at every meeting of the Board of Directors, if present. If there is no Chairman of the Board or if the Chairman is not present, a Chairman chosen by a majority of the directors present shall act as chairman. The Secretary of the corporation or, in the absence of the Secretary, any person appointed by the Chairman shall act as secretary of the meeting. SECTION 33. COMPENSATION. Directors and members of committees may receive such compensation, if any, for their services, and such reimbursement for expenses, as may be fixed or determined by the Board of Directors. SECTION 34. COMMITTEES. The Board of Directors may, by resolution adopted by a majority of the authorized number of directors, designate one or more committees, each consisting of two (2) or more directors, to serve at the pleasure of the Board of Directors. The Board of Directors, by a vote of the majority of authorized directors, may designate one or more directors as alternate members of any committee, to replace any absent member at any meeting of such committee. Any such committee shall have authority to act in the manner and to the extent provided in the resolution of the Board of Directors, and may have all the authority of the Board of Directors in the management of the business and affairs of the corporation, except with respect to: (a) the approval of any action for which shareholders' approval or approval of the outstanding shares also is required by the California Corporations Code; (b) the filling of vacancies on the Board of Directors or any of its committees; (c) the fixing of compensation of directors for serving on the Board of Directors or any of its committees; (d) the adoption, amendment or repeal of these bylaws; (e) the amendment or repeal of any resolution of the Board of Directors which by its express terms is not so amendable or repealable; (f) a distribution to shareholders, except at a rate or in a periodic amount or within a price range determined by the Board of Directors; or (g) the appointment of other committees of the Board of Directors or the members thereof. 11 15 Any committee may from time to time provide by resolution for regular meetings at specified times and places. If the date of such a meeting falls on a legal holiday, then the meeting shall be held at the same time on the next succeeding full business day. No notice of such a meeting need be given. Such regular meetings need not be held if the committee shall so determine at any time before or after the time when such meeting would otherwise have taken place. Special meetings may be called at any time in the same manner and by the same persons as stated in Sections 26 and 27 of these bylaws for meetings of the Board of Directors. The provisions of Sections 25, 28, 29, 30, 31 and 32 of these bylaws shall apply to committees, committee members and committee meetings as if the words "committee" and "committee member" were substituted for the word "Board of Directors", and "director", respectively, throughout such sections. ARTICLE V OFFICERS SECTION 35. OFFICERS. The corporation shall have a Chairman of the Board, a Chief Executive Officer, a President, a Secretary, a Chief Financial Officer and such other officers with such titles and duties as the Board of Directors may determine. Any two or more offices may be held by the same person. The Board of Directors, in its discretion, may appoint more than one person to any office, in which case each such person individually shall have the duties and powers of such office, unless the Board of Directors has specified a different arrangement. SECTION 36. APPOINTMENT. All officers shall be chosen and appointed by the Board of Directors; provided, however, the Board of Directors may empower the Chief Executive Officer of the corporation to appoint such officers, other than Chairman of the Board, President, Secretary or Chief Financial Officer, as the business of the corporation may require. All officers shall serve at the pleasure of the Board of Directors, subject to the rights, if any, of an officer under a contract of employment. SECTION 37. INABILITY TO ACT. In the case of absence or inability to act of any officer of the corporation or of any person authorized by these bylaws to act in such officer's place, the Board of Directors may from time to time delegate the powers or duties of such officer to any other officer, or any director or other person whom it may select, for such period of time as the Board of Directors deems necessary. SECTION 38. RESIGNATIONS. Any officer may resign at any time upon written notice to the corporation, without prejudice to the rights, if any, of the corporation under any contract to which such officer is a party. Such resignation shall be effective upon its receipt by the Chairman of the Board, the Chief Executive Officer, the President, the Secretary or the Board of Directors, unless a different time is specified in the notice for effectiveness of such resignation. The acceptance of any such resignation shall not be necessary to make it effective unless otherwise specified in such notice. SECTION 39. REMOVAL. Any officer may be removed from office at any time, with or without cause, but subject to the rights, if any, of such officer under any contract of employment, by the Board of Directors or by any committee to whom such power of removal has been duly delegated, or, with regard to any officer who has been appointed by the Chief Executive Officer 12 16 pursuant to Section 36 above, by the Chief Executive Officer or any other officer upon whom such power of removal may be conferred by the Board of Directors. SECTION 40. VACANCIES. A vacancy occurring in any office for any cause may be filled by the Board of Directors, in the manner prescribed by this Article V for initial appointment to such office. SECTION 41. CHAIRMAN OF THE BOARD. The Chairman of the Board, if there be such an officer, shall, if present, preside at all meetings of the Board of Directors and shall exercise and perform such other powers and duties as may be assigned from time to time by the Board of Directors or prescribed by these bylaws. If neither a President nor a Chief Executive Officer is appointed, the Chairman of the Board is the general manager and chief executive officer of the corporation, and shall exercise all powers of the Chief Executive Officer described in Section 42 below. SECTION 42. CHIEF EXECUTIVE OFFICER. Subject to such supervisory powers, if any, as may be given by the Board of Directors to the Chairman of the Board, if there be such an officer, the Chief Executive Officer shall, subject to the control of the Board of Directors, have general supervision, direction and control of the business, strategic direction and affairs of the corporation. The Chief Executive Officer may sign and execute, in the name of the corporation, any instrument authorized by the Board of Directors, except when the signing and execution thereof shall have been expressly delegated by the Board of Directors or by these bylaws to some other officer or agent of the corporation. The Chief Executive Officer shall have all the general powers and duties of management usually vested in the chief executive officer of a corporation, and shall have such other powers and duties as may be prescribed from time to time by the Board of Directors or these bylaws. The Chief Executive Officer shall have discretion to prescribe the duties of other officers and employees of the corporation in a manner not inconsistent with the provisions of these bylaws and the directions of the Board of Directors. SECTION 43. PRESIDENT. The President shall, subject to the control of the Board of Directors, report to the Chief Executive Officer and have general supervision, direction and control of the business and departmental officers of the corporation. The President may sign and execute, in the name of the corporation, any instrument authorized by the Board of Directors, except when the signing and execution thereof shall have been expressly delegated by the Board of Directors or by these bylaws to some other officer or agent of the corporation. The President shaft have all the general powers and duties of management usually vested in the president of a corporation, and shall have such other powers and duties as may be prescribed from time to time by the Board of Directors, the Chief Executive Officer or these bylaws. The President shall have discretion to prescribe the duties of other departmental officers and employees of the corporation in a manner not inconsistent with the provisions of these bylaws and the directions of the Board of Directors or the Chief Executive Officer. SECTION 44. VICE PRESIDENTS. In the absence or disability of the President, in the event of a vacancy in the office of President, or in the event such officer refuses to act, the Vice President shall perform all the duties of the President and, when so acting, shall have all the powers of, and be subject to all the restrictions on, the President. If at any such time the corporation has more than one vice president, the duties and powers of the President shall pass to each vice president in order of such vice president's rank as fixed by the Board of Directors or, if the vice presidents are not so ranked, to the vice president designated by the Board of Directors. 13 17 The vice presidents shall have such other powers and perform such other duties as may be prescribed for them from time to time by the Board of Directors or pursuant to Sections 35 and 36 of these bylaws or otherwise pursuant to these bylaws. SECTION 45. SECRETARY. The Secretary shall: (a) Keep, or cause to be kept, minutes of all meetings of the corporation's shareholders, Board of Directors, and committees of the Board of Directors, if any. Such minutes shall be kept in written form. (b) Keep, or cause to be kept, at the principal executive office of the corporation, or at the office of its transfer agent or registrar, if any, a record of the corporation's shareholders, showing the names and addresses of all shareholders, and the number and classes of shares held by each. Such records shall be kept in written form or any other form capable of being converted into written form. (c) Keep, or cause to be kept, at the principal executive office of the corporation, or if the principal executive office is not in California, at its principal business office in California, an original or copy of these bylaws, as amended. (d) Give, or cause to be given, notice of all meetings of shareholders, directors and committees of the Board of Directors, as required by law or by these bylaws. (e) Keep the seal of the corporation, if any, in safe custody. (f) Exercise such powers and perform such duties as are usually vested in the office of secretary of a corporation, and exercise such other powers and perform such other duties as may be prescribed from time to time by the Board of Directors or these bylaws. If any assistant secretaries are appointed, the assistant secretary, or one of the assistant secretaries in the order of their rank as fixed by the Board of Directors or, if they are not so ranked, the assistant secretary designated by the Board of Directors, in the absence or disability of the Secretary or in the event of such officer's refusal to act or if a vacancy exists in the office of Secretary, shall perform the duties and exercise the powers of the Secretary and discharge such duties as may be assigned from time to time pursuant to these bylaws or by the Board of Directors. SECTION 46. CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall: (a) Be responsible for all functions and duties of the treasurer of the corporation. (b) Keep and maintain, or cause to be kept and maintained, adequate and correct books and records of account for the corporation. 14 18 (c) Receive or be responsible for receipt of all monies due and payable to the corporation from any source whatsoever; have charge and custody of, and be responsible for, all monies and other valuables of the corporation and be responsible for deposit of all such monies in the name and to the credit of the corporation with such depositories as may be designated by the Board of Directors or a duly appointed and authorized committee of the Board of Directors. (d) Disburse or be responsible for the disbursement of the funds of the corporation as may be ordered by the Board of Directors or a duly appointed and authorized committee of the Board of Directors. (e) Render to the Chief Executive Officer and the Board of Directors a statement of the financial condition of the corporation if called upon to do so. (f) Exercise such powers and perform such duties as are usually vested in the office of chief financial officer of a corporation, and exercise such other powers and perform such other duties as may be prescribed by the Board of Directors or these bylaws. If any assistant financial officer is appointed, the assistant financial officer, or one of the assistant financial officers, if there are more than one, in the order of their rank as fixed by the Board of Directors or, if they are not so ranked, the assistant financial officer designated by the Board of Directors, shall, in the absence or disability of the Chief Financial Officer or in the event of such officer's refusal to act, perform the duties and exercise the powers of the Chief Financial Officer, and shall have such powers and discharge such duties as may be assigned from time to time pursuant to these bylaws or by the Board of Directors. SECTION 47. COMPENSATION. The compensation of the officers shall be fixed from time to time by the Board of Directors, and no officer shall be prevented from receiving such compensation by reason of the fact that such officer is also a director of the corporation. ARTICLE VI CONTRACTS, LOANS, BANK ACCOUNTS, CHECKS AND DRAFTS SECTION 48. EXECUTION OF CONTRACTS AND OTHER INSTRUMENTS. Except as these bylaws may otherwise provide, the Board of Directors or its duly appointed and authorized committee may authorize any officer or officers, agent or agents, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the corporation, and such authorization may be general or confined to specific instances. Except as so authorized or otherwise expressly provided in these bylaws, no officer, agent or employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or in any amount. SECTION 49. LOANS. No loans shall be contracted on behalf of the corporation and no negotiable paper shall be issued in its name, unless and except as authorized by the Board of Directors or its duly appointed and authorized committee. When so authorized by the Board of Directors or such committee, any officer or agent of the corporation may effect loans and advances at any time for the corporation from any bank, trust company or other institution, or from any firm, corporation or individual, and for such loans and advances may make, execute 15 19 and deliver promissory notes, bonds or other evidences of indebtedness of the corporation and, when authorized as aforesaid, may mortgage, pledge, hypothecate or transfer any and all stocks, securities and other property, real or personal, at any time held by the corporation, and to that end endorse, assign and deliver the same as security for the payment of any and all loans, advances, indebtedness, and liabilities of the corporation. Such authorization may be general or confined to specific instances. SECTION 50. BANK ACCOUNTS. The Board of Directors or its duly appointed and authorized committee from time to time may authorize the opening and keeping of general and/or special bank accounts with such banks, trust companies or other depositories as may be selected by the Board of Directors, its duly appointed and authorized committee or by any officer or officers, agent or agents, of the corporation to whom such power may be delegated from time to time by the Board of Directors. The Board of Directors or its duly appointed and authorized committee may make such rules and regulations with respect to said bank accounts, not inconsistent with the provisions of these bylaws, as are deemed advisable. SECTION 51. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for the payment of money, notes, acceptances or other evidences of indebtedness issued in the name of the corporation shall be signed by such officer or officers, agent or agents, of the corporation, and in such manner, as shall be determined from time to time by resolution of the Board of Directors or its duly appointed and authorized committee. Endorsements for deposit to the credit of the corporation in any of its duly authorized depositories may be made, without countersignature, by the Chief Executive Officer or the President or any vice president or the Chief Financial Officer or any assistant financial officer or by any other officer or agent of the corporation to whom the Board of Directors or its duly appointed and authorized committee, by resolution, shall have delegated such power or by hand-stamped impression in the name of the corporation. ARTICLE VII CERTIFICATES FOR SHARES AND THEIR TRANSFER SECTION 52. CERTIFICATE FOR SHARES. Every holder of shares in the corporation shall be entitled to have a certificate signed in the name of the corporation by the Chairman or Vice Chairman of the Board or the President or a Vice President and by the Chief Financial Officer or an assistant financial officer or by the Secretary or an assistant secretary, certifying the number of shares and the class or series of shares owned by the shareholder. Any or all of the signatures on the certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were an officer, transfer agent or registrar at the date of issue. In the event that the corporation shall issue any shares as only partly paid, the certificate issued to represent such partly paid shares shall have stated thereon the total consideration to be paid for such shares and the amount paid thereon. SECTION 53. TRANSFER ON THE BOOKS. Upon surrender to the Secretary or transfer agent (if any) of the corporation of a certificate for shares of the corporation duly endorsed, with reasonable assurance that the endorsement is genuine and effective, or accompanied by proper 16 20 evidence of succession, assignment or authority to transfer and upon compliance with applicable federal and state securities laws and if the corporation has no statutory duty to inquire into adverse claims or has discharged any such duty and if any applicable law relating to the collection of taxes has been complied with, it shall be the duty of the corporation, by its Secretary or transfer agent, to cancel the old certificate, to issue a new certificate to the person entitled thereto and to record the transaction on the books of the corporation. SECTION 54. LOST, DESTROYED AND STOLEN CERTIFICATES. The holder of any certificate for shares of the corporation alleged to have been lost, destroyed or stolen shall notify the corporation by making a written affidavit or affirmation of such fact. Upon receipt of said affidavit or affirmation, the Board of Directors, or its duly appointed and authorized committee or any officer or officers authorized by the Board so to do, may order the issuance of a new certificate for shares in the place of any certificate previously issued by the corporation and which is alleged to have been lost, destroyed or stolen. However, the Board of Directors or such authorized committee, officer or officers may require the owner of the allegedly lost, destroyed or stolen certificate, or such owner's legal representative, to give the corporation a bond or other adequate security sufficient to indemnify the corporation and its transfer agent and/or registrar, if any, against any claim that may be made against it or them on account of such allegedly lost, destroyed or stolen certificate or the replacement thereof. Said bond or other security shall be in such amount, on such terms and conditions and, in the case of a bond, with such surety or sureties as may be acceptable to the Board of Directors or to its duly appointed and authorized committee or any officer or officers authorized by the Board of Directors to determine the sufficiency thereof. The requirement of a bond or other security may be waived in particular cases at the discretion of the Board of Directors or its duly appointed and authorized committee or any officer or officers authorized by the Board of Directors so to do. SECTION 55. ISSUANCE, TRANSFER AND REGISTRATION OF SHARES. The Board of Directors may make such rules and regulations, not inconsistent with law or with these bylaws, as it may deem advisable concerning the issuance, transfer and registration of certificates for shares of the capital stock of the corporation. The Board of Directors may appoint a transfer agent or registrar of transfers, or both, and may require all certificates for shares of the corporation to bear the signature of either or both. ARTICLE VIII INSPECTION OF CORPORATE RECORDS SECTION 56. INSPECTION BY DIRECTORS. Every director shall have the absolute right at any reasonable time to inspect and copy all books, records, and documents of every kind of the corporation and any of its subsidiaries and to inspect the physical properties of the corporation and any of its subsidiaries. Such inspection may be made by the director in person or by agent or attorney, and the right of inspection includes the right to copy and make extracts. SECTION 57. INSPECTION BY SHAREHOLDERS. (a) INSPECTION OF CORPORATE RECORDS. (1) A shareholder or shareholders holding at least five (5%) percent in the aggregate of the outstanding voting shares of the corporation or who hold at least 17 21 one percent of such voting shares and have filed a Schedule 14B with the United States Securities and Exchange Commission relating to the election of directors of the corporation shall have an absolute right to do either or both of the following: (i) Inspect and copy the record of shareholders' names and addresses and shareholdings during usual business hours upon five (5) business days' prior written demand upon the corporation; or (ii) Obtain from the transfer agent, if any, for the corporation, upon five business days' prior written demand and upon the tender of its usual charges for such a list (the amount of which charges shall be stated to the shareholder by the transfer agent upon request), a list of the shareholders' names and addresses who are entitled to vote for the election of directors and their shareholdings, as of the most recent record date for which it has been compiled or as of a date specified by the shareholder subsequent to the date of demand. (2) The record of shareholders shall also be open to inspection and copying by any shareholder or holder of a voting trust certificate at any time during usual business hours upon written demand on the corporation, for a purpose reasonably related to such holder's interest as a shareholder or holder of a voting trust certificate. (3) The accounting books and records and minutes of proceedings of the shareholders and the Board of Directors and of any committees of the Board of Directors of the corporation and of each of its subsidiaries shall be open to inspection, copying and making extracts upon written demand on the corporation of any shareholder or holder of a voting trust certificate at any reasonable time during usual business hours, for a purpose reasonably related to such holder's interests as a shareholder or as a holder of such voting trust certificate. (4) Any inspection, copying and making of extracts under this subsection (a) may be done in person or by agent or attorney. (b) INSPECTION OF BYLAWS. The original or a copy of these bylaws shall be kept as provided in Section 45 of these bylaws and shall be open to inspection by the shareholders at all reasonable times during office hours. If the principal executive office of the corporation is not in California, and the corporation has no principal business office in the state of California, a current copy of these bylaws shall be furnished to any shareholder upon written request. SECTION 58. WRITTEN FORM. If any record subject to inspection pursuant to Section 57 above is not maintained in written form, a request for inspection is not complied with unless and until the corporation at its expense makes such record available in written form. 18 22 ARTICLE IX MISCELLANEOUS SECTION 59. FISCAL YEAR. Unless otherwise fixed by resolution of the Board of Directors, the fiscal year of the corporation shall end on the 31st day of August in each calendar year. SECTION 60. ANNUAL REPORT. (a) Subject to the provisions of Section 60(b) below, the Board of Directors shall cause an annual report to be sent to each shareholder of the corporation in the manner provided in Section 9 of these bylaws not later than one hundred twenty (120) days after the close of the corporation's fiscal year. Such report shall include a balance sheet as of the end of such fiscal year and an income statement and statement of changes in financial position for such fiscal year, accompanied by any report thereon of independent accountants or, if there is no such report, the certificate of an authorized officer of the corporation that such statements were prepared without audit from the books and records of the corporation. When there are more than 100 shareholders of record of the corporation's shares, as determined by Section 605 of the California Corporations Code, additional information as required by Section 1501(b) of the California Corporations Code shall also be contained in such report, provided that if the corporation has a class of securities registered under Section 12 of the United States Securities Exchange Act of 1934, that Act shall take precedence. Such report shall be sent to shareholders at least fifteen (15) (or, if sent by third-class mail, thirty-five (35)) days prior to the next annual meeting of shareholders after the end of the fiscal year to which it relates. (b) If and so long as there are fewer than 100 holders of record of the corporation's shares, the requirement of sending of an annual report to the shareholders of the corporation is hereby expressly waived. SECTION 61. RECORD DATE. The Board of Directors may fix a time in the future as a record date for the determination of the shareholders entitled to notice of or to vote at any meeting or entitled to receive payment of any dividend or other distribution or allotment of any rights or entitled to exercise any rights in respect of any change, conversion or exchange of shares or entitled to exercise any rights in respect of any other lawful action. The record date so fixed shall not be more than sixty (60) days nor less than ten (10) days prior to the date of the meeting nor more than sixty (60) days prior to any other action or event for the purpose of which it is fixed. If no record date is fixed, the provisions of Section 15 of these bylaws shall apply with respect to notice of meetings, votes and consents and the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolutions relating thereto, or the sixtieth (60th) day prior to the date of such other action or event, whichever is later. Only shareholders of record at the close of business on the record date shall be entitled to notice and to vote or to receive the dividend, distribution or allotment of rights or to exercise the rights, as the case may be, notwithstanding any transfer of any shares on the books of the corporation after the record date, except as otherwise provided in the Articles of Incorporation, by agreement or by law. 19 23 SECTION 62. BYLAW AMENDMENTS. Except as otherwise provided by law or Section 19 of these bylaws, these bylaws may be amended or repealed by the Board of Directors or by the affirmative vote of a majority of the outstanding shares entitled to vote, including, if applicable, the affirmative vote of a majority of the outstanding shares of each class or series entitled by law or the Articles of Incorporation to vote as a class or series on the amendment or repeal or adoption of any bylaw or bylaws; provided, however, after issuance of shares, a bylaw specifying or changing a fixed number of directors or the maximum or minimum number or changing from a fixed to a variable board or vice versa may only be adopted by approval of the outstanding shares as provided herein. SECTION 63. CONSTRUCTION AND DEFINITION. Unless the context requires otherwise, the general provisions, rules of construction, and definitions contained in the California Corporations Code shall govern the construction of these bylaws. Without limiting the foregoing, "shall" is mandatory and "may" is permissive. ARTICLE X INDEMNIFICATION SECTION 64. INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS. (a) DIRECTORS AND EXECUTIVE OFFICERS. The corporation shall indemnify its directors and executive officers to the fullest extent not prohibited by the California General Corporation Law; provided, however, that the corporation may limit the extent of such indemnification by individual contracts with its directors and executive officers; and, provided, further, that the corporation shall not be required to indemnify any director or executive officer in connection with any proceeding (or part thereof) initiated by such person or any proceeding by such person against the corporation or its directors, officers, employees or other agents unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the board of directors of the corporation or (iii) such indemnification is provided by the corporation, in its sole discretion, pursuant to the powers vested in the corporation under the California General Corporation Law. (b) OTHER OFFICERS, EMPLOYEES AND OTHER AGENTS. The corporation shall have the power to indemnify its other officers, employees and other agents as set forth in the California General Corporation Law. (c) DETERMINATION BY THE CORPORATION. Promptly after receipt of a request for indemnification hereunder (and in any event within 90 days thereof) a reasonable, good faith determination as to whether indemnification of the director or executive officer is proper under the circumstances because such director or executive officer has met the applicable standard of care shall be made by: (1) a majority vote of a quorum consisting of directors who are not parties to such proceeding; 20 24 (2) if such quorum is not obtainable, by independent legal counsel in a written opinion; or (3) approval or ratification by the affirmative vote of a majority of the shares of this corporation represented and voting at a duly held meeting at which a quorum is present (which shares voting affirmatively also constitute at least a majority of the required quorum) or by written consent of a majority of the outstanding shares entitled to vote; where in each case the shares owned by the person to be indemnified shall not be considered entitled to vote thereon. (d) GOOD FAITH. (1) For purposes of any determination under this bylaw, a director or executive officer shall be deemed to have acted in good faith and in a manner he reasonably believed to be in the best interests of the corporation and its shareholders, and, with respect to any criminal action or proceeding, to have had no reasonable cause to believe that his conduct was unlawful, if his action is based on information, opinions, reports and statements, including financial statements and other financial data, in each case prepared or presented by: (i) one or more officers or employees of the corporation whom the director or executive officer believed to be reliable and competent in the matters presented; (ii) counsel, independent accountants or other persons as to matters which the director or executive officer believed to be within such person's professional competence; and (iii) with respect to a director, a committee of the Board upon which such director does not serve, as to matters within such committee's designated authority, which committee the director believes to merit confidence; so long as, in each case, the director or executive officer acts without knowledge that would cause such reliance to be unwarranted. (2) The termination of any proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in the best interests of the corporation and its shareholders or that he had reasonable cause to believe that his conduct was unlawful. (3) The provisions of this paragraph (d) shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth by the California General Corporation Law. (e) EXPENSES. The corporation shall advance, prior to the final disposition of any proceeding, promptly following request therefor, all expenses incurred by any director or executive officer in connection with such proceeding upon receipt of an undertaking by or on behalf of such person to repay said amounts if it shall be determined ultimately that such person is not entitled to be indemnified under this bylaw or otherwise. 21 25 Notwithstanding the foregoing, unless otherwise determined pursuant to paragraph (f) of this bylaw, no advance shall be made by the corporation if a determination is reasonably and promptly made by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to the proceeding (or, if no such quorum exists, by independent legal counsel in a written opinion) that the facts known to the decision-making party at the time such determination is made demonstrate clearly and convincingly that such person acted in bad faith or in a manner that such person did not believe to be in the best interests of the corporation and its shareholders. (f) ENFORCEMENT. Without the necessity of entering into an express contract, all rights to indemnification and advances to directors and executive officers under this bylaw shall be deemed to be contractual rights and be effective to the same extent and as if provided for in a contract between the corporation and the director or executive officer. Any right to indemnification or advances granted by this bylaw to a director or executive officer shall be enforceable by or on behalf of the person holding such right in the forum in which the proceeding is or was pending or, if such forum is not available or a determination is made that such forum is not convenient, in any court of competent jurisdiction if (i) the claim for indemnification or advances is denied, in whole or in part, or (ii) no disposition of such claim is made within ninety (90) days of request therefor. The claimant in such enforcement action, if successful in whole or in part, shall be entitled to be paid also the expense of prosecuting his claim. The corporation shall be entitled to raise as a defense to any such action that the claimant has not met the standards of conduct that make it permissible under the California General Corporation Law for the corporation to indemnify the claimant for the amount claimed. Neither the failure of the corporation (including its board of directors, independent legal counsel or its shareholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he has met the applicable standard of conduct set forth in the California General Corporation Law, nor an actual determination by the corporation (including its board of directors, independent legal counsel or its shareholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that claimant has not met the applicable standard of conduct. (g) NON-EXCLUSIVITY OF RIGHTS. To the fullest extent permitted by the corporation's Articles of Incorporation and the California General Corporation Law, the rights conferred on any person by this bylaw shall not be exclusive of any other right that such person may have or hereafter acquire under any statute, provision of the Articles of Incorporation, bylaws, agreement, vote of shareholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding office. The corporation is specifically authorized to enter into individual contracts with any or all of its directors, officers, employees or agents respecting indemnification and advances, to the fullest extent permitted by the California General Corporation Law and the corporation's Articles of Incorporation. (h) SURVIVAL OF RIGHTS. The rights conferred on any person by this bylaw shall continue as to a person who has ceased to be a director or executive officer and shall inure to the benefit of the heirs, executors and administrators of such a person. 22 26 (i) INSURANCE. The corporation, upon approval by the board of directors, may purchase insurance on behalf of any person required or permitted to be indemnified pursuant to this bylaw. (j) AMENDMENTS. Any repeal or modification of this bylaw shall only be prospective and shall not affect the rights under this bylaw in effect at the time of the alleged occurrence of any action or omission to act that is the cause of any proceeding against any agent of the corporation. (k) EMPLOYEE BENEFIT PLANS. The corporation shall indemnify the directors and officers of the corporation who serve at the request of the corporation as trustees, investment managers or other fiduciaries of employee benefit plans to the fullest extent permitted by the California General Corporation Law. (l) SAVING CLAUSE. If this bylaw or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the corporation shall nevertheless indemnify each director and executive officer to the fullest extent permitted by any applicable portion of this bylaw that shall not have been invalidated, or by any other applicable law. (m) CERTAIN DEFINITIONS. For the purposes of this bylaw, the following definitions shall apply: (1) The term "PROCEEDING" shall be broadly construed and shall include, without limitation, the investigation, preparation, prosecution, defense, settlement and appeal of any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative or investigative. (2) The term "EXPENSES" shall be broadly construed and shall include, without limitation, court costs, attorneys' fees, witness fees, fines, amounts paid in settlement or judgment and any other costs and expenses of any nature or kind incurred in connection with any proceeding, including expenses of establishing a right to indemnification under this bylaw or any applicable law. (3) The term the "CORPORATION" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this bylaw with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued. (4) References to a "DIRECTOR," "OFFICER," "EMPLOYEE" or "AGENT" of the corporation shall include, without limitation, situations where such person is or was serving at the request of the corporation as a director, officer, employee, trustee or agent of another corporation, partnership, joint venture, trust or other enterprise. 23 27 ARTICLE XI LOANS OF OFFICERS AND OTHERS SECTION 65. CERTAIN CORPORATE LOANS AND GUARANTIES. If the corporation has outstanding shares held of record by 100 or more persons on the date of approval by the Board of Directors, the corporation may make loans of money or property to, or guarantee the obligations of, any officer of the corporation or its parent or any subsidiary, whether or not a director of the corporation or its parent or any subsidiary, or adopt an employee benefit plan or plans authorizing such loans or guaranties, upon the approval of the Board of Directors alone, by a vote sufficient without counting the vote of any interested director or directors, if the Board of Directors determines that such a loan or guaranty or plan may reasonably be expected to benefit the corporation. Notwithstanding the foregoing, the corporation shall have the power to make loans permitted by the California Corporations Code. 24 EX-10.1 3 EMPLOYMENT AGREEMENT 1 EXHIBIT 10.1 EMPLOYMENT AGREEMENT TABLE OF CONTENTS 1. Period of Employment 2. Position and Responsibilities 3. Compensation and Benefits 4. Termination of Employment 5. Proprietary Information 6. Arbitration 7. Notices 8. Action by Odwalla 9. Integration 10. Amendments; Waivers 11. Assignment; Successors and Assigns 12. Severability 13. Attorneys' Fees 14. Injunctive Relief 15. Governing Law 16. Interpretation 17. Employee Acknowledgment This Agreement, dated as of May 2, 2000, is between Odwalla, Inc., a California corporation ("Odwalla"), and Douglas K. Levin ("Levin"). RECITALS Odwalla and Levin wish to enter into their employment relationship on the following terms and conditions. Odwalla recognizes and acknowledges that Levin has been valuable and instrumental in developing Fresh Samantha's business and good will. Levin acknowledges the compensation conferred upon him by this employment agreement, consisting of additional salary, health benefits, and option vesting provisions in the event Levin is terminated without Cause or is Involuntarily Terminated following a Change in Control or Corporate Transaction, as provided below. Odwalla has spent significant time, effort, and money to develop certain Proprietary Information (as defined below), which Odwalla considers vital to its business and goodwill. The Proprietary Information will necessarily be communicated to or acquired by Levin in the course of his employment with Odwalla, and Odwalla wishes to continue its employment relationship with Levin only if, in doing so, it can protect its Proprietary Information and goodwill. 2 ACCORDINGLY, the parties agree as follows: 1. Period of Employment. (a) Basic Term. Odwalla shall continue to employ Levin to render services to Odwalla in the position and with the duties and responsibilities described in Section 2 for the period (the "Period of Employment") commencing on the date of this Agreement and ending upon the earlier of (i) December 21, 2002, as, and to the extent, extended under Section 1(b); or (ii) the date upon which the Period of Employment is terminated in accordance with Section 4. (b) Renewal. Subject to Section 4, Levin's employment will be renewed automatically for an additional one (1) year period (without any action by either party) on December 21, 2002 and on each anniversary thereof, unless one party gives to the other written notice sixty (60) days in advance of the beginning of any one-year renewal period that the Period of Employment is to be terminated. In no event shall the Period of Employment under this Agreement extend or be renewed beyond December 21, 2005. Either party may elect not to renew this Agreement with or without cause, in which case this Section 1(b) shall govern Levin's termination and not Section 4 (except for Levin's termination obligations set forth in Section 4(h), which shall remain in effect). Nothing stated in this Agreement or represented orally or in writing to either party shall create an obligation to renew this Agreement. 2. Position and Responsibilities. (a) Position. Levin accepts employment with Odwalla as President and shall perform all services appropriate to that position, as well as such other services as may be assigned by Odwalla. Levin shall devote his best efforts and full-time attention to the performance of his duties. Levin shall be subject to the direction of Odwalla, which shall retain full control of the means and methods by which he performs the above services and of the place(s) at which all services are rendered. Levin shall be expected to travel if necessary or advisable in order to meet the obligations of his position. (b) Other Activity. Except upon the prior written consent of Odwalla, Levin (during the Period of Employment) shall not (i) accept any other employment; or (ii) engage, directly or indirectly, in any other business, commercial, or professional activity (whether or not pursued for pecuniary advantage) that is or may be competitive with Odwalla, that might create a conflict of interest with Odwalla, or that otherwise might interfere with the business of Odwalla, or any Affiliate. An "Affiliate" shall mean any person or entity that directly or indirectly controls, is controlled by, or is under common control with Odwalla. So that Odwalla may be aware of the extent of any other demands upon Levin's time and attention, Levin shall disclose in confidence to Odwalla the nature and scope of any other business activity in which he is or becomes engaged during the Period of Employment. 2 3 3. Compensation and Benefits. (a) Compensation. In consideration of the services to be rendered under this Agreement, Odwalla shall pay Levin One Hundred Ninety Thousand Dollars ($190,000) per year, payable bi-weekly, pursuant to the procedures regularly established, and as they may be amended, by Odwalla in its sole discretion, during the Period of Employment. Odwalla shall review annually Levin's compensation and shall determine, in its sole discretion, whether and how much the existing compensation shall be adjusted, without regard to any policy or practice Odwalla may have for adjusting salaries. All compensation and comparable payments to be paid to Levin under this Agreement shall be less withholdings required by law. (b) Benefits. Pursuant to the Compensation Committee's decision of June 14, 1999, regarding Senior Executive Officer vacation policy, Levin will not accrue vacation leave. Levin shall have the right to participate in and to receive benefits from all present and future benefit plans specified in Odwalla's policies and generally made available to similarly situated employees of Odwalla. The amount and extent of benefits to which Levin is entitled shall be governed by the specific benefit plan, as amended. Levin also shall be entitled to any benefits or compensation tied to termination as described in Section 4. Odwalla reserves the ability, in its sole discretion, to adjust Levin's benefits provided under this Agreement. No statement concerning benefits or compensation to which Levin is entitled shall alter in any way the term of this Agreement, any renewal thereof, or its termination. (c) Expenses. Odwalla shall reimburse Levin for reasonable travel and other business expenses incurred by Levin in the performance of his duties, in accordance with Odwalla's policies, as they may be amended in Odwalla's sole discretion. (d) Options. At the first meeting of the Board of Directors Compensation Committee ("Compensation Committee") scheduled after the date of this Agreement, Odwalla's Chief Executive Officer will recommend that the Compensation Committee award Levin options to purchase one hundred thirty thousand (130,000) shares of Odwalla common stock under the 1997 Stock Option/Stock Issuance Plan, as amended. The terms recommended to the Compensation Committee are as follows: vesting, forty-eight (48) months with one-forty-eighth (1/48) of the award vesting monthly; option price, closing price quoted on NASDAQ as of the date of the award; vesting start date, the date of this Agreement. (e) Temporary Housing. As provided in Exhibit A to this Agreement. 4. Termination of Employment. (a) By Death. The Period of Employment shall terminate automatically upon the death of Levin. Odwalla shall pay to Levin's beneficiaries or estate, as appropriate, any compensation then due and owing, if any. Thereafter, all obligations of Odwalla under this Agreement shall cease. Any stock option outstanding at the time of Levin's death 3 4 shall remain exercisable by the personal representative of Levin's estate or by the person or persons to whom the option is transferred pursuant to Levin's will or in accordance with the laws of descent and distribution and may be exercised as provided by the relevant Stock Option Agreement. Nothing in this Section shall affect any entitlement of Levin's heirs to the benefits of any life insurance plan or other applicable benefits. (b) By Disability. If, by reason of any physical or mental incapacity, Levin cannot perform his duties under this Agreement for six (6) consecutive months, then, to the extent permitted by law, Levin's Period of Employment will be automatically terminated. Odwalla shall supplement any benefits Levin receives under Odwalla's disability plans to the extent necessary to make Levin's net compensation whole and shall provide applicable benefits to which he is entitled up through the last business day on which the Period of Employment was terminated; thereafter, all obligations of Odwalla under this Agreement shall cease. Nothing in this Section shall affect Levin's rights under any applicable Odwalla disability plan. (c) By Employer Not For Cause. At any time, Odwalla may terminate Levin without Cause (as defined below) by providing Levin sixty (60) days' advance written notice, provided Odwalla: (i) pays Levin all compensation due to Levin through December 21, 2002, or the relevant anniversary thereof, if this Agreement has been automatically renewed as provided by Section 1(b). The compensation due to Levin during this period will be based on Levin's salary as of the effective date of termination and will be payable on a bi-weekly basis; (ii) reimburses Levin for the cost of acquiring health benefits, through COBRA or, to the extent Levin's eligibility for COBRA ends prior to the fulfillment of this obligation, through the independent purchase of comparable health benefits, through December 21, 2002, or the relevant anniversary thereof, if this Agreement has been automatically renewed as provided by Section 1(b); and (iii) automatically accelerates each outstanding stock option so that each such option shall, at the time Levin's termination becomes effective, become fully exercisable with respect to the total number of shares of stock at the time subject to such option and may be exercised for any or all of those shares as fully vested shares. Any options so accelerated shall remain exercisable for the limited period set forth in the stock option agreements evidencing the option, but no such option shall be exercisable after the expiration of the option term. Odwalla shall have the option, in its complete discretion, to terminate Levin at any time prior to the end of the sixty (60) day notice period. 4 5 (d) By Employer For Cause. At any time, and without prior notice, Odwalla may terminate Levin for Cause. Odwalla shall pay Levin all compensation then due and owing; thereafter, all of Odwalla's obligations under this Agreement shall cease. Termination shall be for "Cause" if Levin: (i) acts in bad faith and to the detriment of Odwalla; (ii) refuses or fails to act in accordance with any specific direction or order of Odwalla; (iii) exhibits in regard to his employment unfitness or unavailability for service, unsatisfactory performance, misconduct, dishonesty, habitual neglect, or incompetence; (iv) is convicted of a crime involving dishonesty, breach of trust, or physical or emotional harm to any person; (v) is selected for layoff pursuant to a bona fide reduction-in-force; or (vi) breaches any material term of this Agreement. If termination is due to Levin's disability, Section 4(b) above shall control, and not this subsection on termination for Cause. (e) By Employee Not for Good Reason. At any time, Levin may terminate his employment without Good Reason (as defined below) by providing Odwalla thirty (30) days' advance written notice. Odwalla shall have the option, in its complete discretion, to make Levin's termination effective at any time prior to the end of such notice period, provided Odwalla pays Levin all compensation due and owing through the last day actually worked, plus an amount equal to the base salary Levin would have earned through the balance of the above notice period, not to exceed thirty (30) days; thereafter, all of Odwalla's obligations under this Agreement shall cease. (f) By Employee for Good Reason. Levin may terminate his employment for Good Reason by giving Odwalla thirty (30) days' advance written notice. Termination shall be for "Good Reason" if: (i) the position, duties, or responsibilities assigned to Levin are materially and adversely changed; or (ii) Odwalla fails to comply in any material respect with any of its material covenants and agreements hereunder. Levin's written notice of termination of his employment for Good Reason shall specify with reasonable detail the nature of the grounds for such termination and provide Odwalla with a period of thirty (30) days during which Odwalla shall be given the opportunity to cure the condition constituting Good Reason. Any such notice shall be made not more than forty-five (45) days after the occurrence of the event that is the basis for the Good Reason. If the condition is remedied within the thirty (30) day notice period, Levin's notice of termination shall be rescinded automatically; if not remedied, termination shall become effective upon the expiration of the above notice period. In the event Levin terminates his employment for Good Reason pursuant to this section, and Odwalla fails to cure the condition constituting Good Reason, Levin shall be entitled to receive severance pay in an amount equal to Levin's base salary then in effect (as specified pursuant to Section 3(a)) for a period of twelve (12) months and reimbursement for the cost of acquiring health benefits through COBRA for a period of twelve (12) months. Such severance pay shall be in lieu of any damages under this Agreement for any alleged breach. Thereafter, all of Odwalla's obligations under this Agreement shall 5 6 cease. Odwalla shall also have the option, in its complete discretion, to make Levin's termination effective at any time prior to the end of the notice period, provided that Odwalla pays Levin all compensation due and owning through the balance of the notice period (not to exceed thirty (30) days), in addition to the payment of twelve (12) months base salary and health benefits reimbursement described above. Such severance pay and health benefits reimbursement shall be paid in accordance with Odwalla's normal payroll cycle. (g) Involuntary Termination Following Change in Control/Corporate Transaction. To the extent permitted by law, Odwalla, in its sole discretion, may terminate the Period of Employment (in which case all of Odwalla's obligations under this Agreement shall cease after payment of all compensation due and owing) upon any formal action of Odwalla's management to effect a Change in Control or a Corporate Transaction as those terms are defined in the 1997 Stock Option/Stock Issuance Plan, as amended. In the event Levin is subjected to of an Involuntary Termination, as the term is defined in the 1997 Stock Option/Stock Issuance Plan, as amended, within twelve (12) months of a Change in Control or a Corporate Transaction, Odwalla will: (i) pay Levin all compensation due to Levin through December 21, 2002, or the relevant anniversary thereof, if this Agreement has been automatically renewed as provided by Section 1(b). The compensation due to Levin during this period will be based on Levin's salary as of the effective date of the Involuntary Termination and will be payable on a bi-weekly basis; (ii) reimburse Levin for the cost of acquiring health benefits, through COBRA or, to the extent Levin's eligibility for COBRA ends prior to the fulfillment of this obligation, through the independent purchase of comparable health benefits, through December 21, 2002, or the relevant anniversary thereof, if this Agreement has been automatically renewed as provided by Section 1(b); and (iii) automatically accelerate each outstanding stock option so that each such option shall, immediately upon an Involuntary Termination of Levin's Service, become fully exercisable with respect to the total number of shares of stock at the time subject to such option and may be exercised for any or all of those shares as fully vested shares. Any options so accelerated shall remain exercisable for the limited period set forth in the stock option agreements evidencing the option, but no such option shall be exercisable after the expiration of the option term. In addition, notwithstanding any provision of this Agreement to the contrary, the total payments or benefits to be made or provided to Levin by Odwalla (whether pursuant to this Agreement or otherwise) due to a Change of Control or Corporate Transaction shall not exceed three times Levin's annualized includible compensation for the base period, as defined in subsection (d) of Section 280G of the Internal Revenue Code of 1986 ("Code"), minus one dollar ($1.00). The intent of this portion of this Section is to prevent any payment or benefit, 6 7 including the acceleration of vesting of any outstanding and unvested stock options, to Levin from being subject to the excise tax imposed by Code Section 4999. (h) Termination Obligations. (i) Levin agrees that all property, including, without limitation, all equipment, tangible Proprietary Information (as defined below), documents, books, records, reports, notes, contracts, lists, computer disks (and other computer-generated files and data), and copies thereof, created on any medium and furnished to, obtained by, or prepared by Levin in the course of or incident to his employment, belongs to Odwalla and shall be returned promptly to Odwalla upon termination of the Period of Employment. (ii) All benefits to which Levin is otherwise entitled shall cease upon Levin's termination, unless explicitly continued either under this Agreement or under any specific written policy or benefit plan of Odwalla. (iii) Upon termination of the Period of Employment, Levin shall be deemed to have resigned from all offices then held with Odwalla or any Affiliate. (iv) The representations and warranties contained in this Agreement and Levin's obligations under this Section 4(h) on Termination Obligations and Section 5 on Proprietary Information shall survive the termination of the Period of Employment and the expiration of this Agreement. (v) Following any termination of the Period of Employment, Levin shall fully cooperate with Odwalla in all matters relating to the winding up of pending work on behalf of Odwalla and the orderly transfer of work to other employees of Odwalla. Levin shall also cooperate in the defense of any action brought by any third party against Odwalla that relates in any way to Levin's acts or omissions while employed by Odwalla or in the defense of any action brought by any third party relating to litigation pending against Odwalla at the time the Period of Employment is terminated. 5. Proprietary Information. (a) Defined. "Proprietary Information" is all information and any idea in whatever form, tangible or intangible, pertaining in any manner to the business of Odwalla, or any Affiliate, or its employees, clients, consultants, or business associates, which was produced by any employee of Odwalla in the course of his or her employment or otherwise produced or acquired by or on behalf of Odwalla. All Proprietary Information not generally known outside of Odwalla's organization, and all Proprietary Information so known only through improper means, shall be deemed "Confidential Information." Levin should consult any Odwalla procedures instituted to identify and protect certain types of Confidential Information, which are considered by Odwalla to be safeguards in 7 8 addition to the protection provided by this Agreement. Nothing contained in those procedures or in this Agreement is intended to limit the effect of the other. (b) General Restrictions on Use. During the Period of Employment, Levin shall use Proprietary Information, and shall disclose Confidential Information, only for the benefit of Odwalla and as is necessary to carry out his responsibilities under this Agreement. Following termination, Levin shall neither, directly or indirectly, use any Proprietary Information nor disclose any Confidential Information, except as expressly and specifically authorized in writing by Odwalla. The publication of any Proprietary Information through literature or speeches must be approved in advance in writing by Odwalla. (c) Location and Reproduction. Levin shall maintain at his work station and/or any other place under his control only such Confidential Information as he has a current "need to know." Levin shall return to the appropriate person or location or otherwise properly dispose of Confidential Information once that need to know no longer exists. Levin shall not make copies of or otherwise reproduce Confidential Information unless there is a legitimate business need for reproduction. (d) Prior Actions and Knowledge. Levin represents and warrants that from the time of his first contact with Odwalla, he has held in strict confidence all Confidential Information and has not disclosed any Confidential Information, directly or indirectly, to anyone outside of Odwalla, or used, copied, published, or summarized any Confidential Information, except to the extent otherwise permitted in this Agreement. (e) Third-Party Information. Levin acknowledges that Odwalla has received and in the future will receive from third parties their confidential information subject to a duty on Odwalla's part to maintain the confidentiality of this information and to use it only for certain limited purposes. Levin agrees that he owes Odwalla and these third parties, during the Period of Employment and thereafter, a duty to hold all such confidential information in the strictest confidence and not to disclose or use it, except as necessary to perform his obligations hereunder and as is consistent with Odwalla's agreement with third parties. (f) Competitive Activity. Levin acknowledges and agrees that the pursuit of the activities forbidden by this subsection would necessarily involve the use or disclosure of Confidential Information in breach of the preceding subsections, but that proof of such a breach would be extremely difficult. To forestall this disclosure, use, and breach, and in consideration of the employment under this Agreement, Levin agrees that for a period of one (1) year following the termination of his employment relationship with Odwalla or for any period in which he is entitled to payments and health benefits pursuant to Sections 4(c) and 4(f), whichever is greater, he shall not, directly or indirectly, (i) divert or attempt to divert from Odwalla (or any Affiliate) any business of any kind in which it is engaged; (ii) employ or recommend for employment any person employed by Odwalla (or any Affiliate); or (iii) engage in any business activity that is or may be competitive with Odwalla (or any Affiliate) in any state where Odwalla conducts its business, unless 8 9 Levin can prove that any action taken in contravention of this subsection was done without the use in any way of Confidential Information. Additionally, in consideration of the employment under this Agreement, Levin agrees that upon the event that he, directly or indirectly, (i) diverts or attempts to divert from Odwalla (or any Affiliate) any business of any kind in which it is engaged; (ii) employs or recommends for employment any person employed by Odwalla (or any Affiliate); or (iii) engages in any business activity that is or may be competitive with Odwalla (or any Affiliate) in any state where Odwalla conducts its business, during such time as that Levin is not employed by Odwalla but receiving payments and health benefits pursuant to Sub-Sections 4(c) and 4(f), all of Odwalla's obligations under this Agreement shall cease. (g) Interference with Business. In order to avoid disruption of Odwalla's business, Levin agrees that for a period of one (1) year after termination of the Period of Employment, he shall not, directly or indirectly, (i) solicit any customer of Odwalla (or any Affiliate) known to Levin during the Period of Employment to have been a customer; or (ii) solicit for employment any person employed by Odwalla (or any Affiliate). Additionally, Levin agrees that in the event he, directly or indirectly, (i) solicits any customer of Odwalla (or any Affiliate) known to Levin during the Period of Employment to have been a customer; or (ii) solicits for employment any person employed by Odwalla (or any Affiliate) during such time as that Levin is not employed by Odwalla but receiving payments and health benefits pursuant to Sub-Sections 4(c) and 4(f), all of Odwalla's obligations under this Agreement shall cease. (h) Maintenance of Records. Levin agrees to keep and maintain adequate and current written records of all sales and customer transactions, which records shall be available to and remain the sole property of Odwalla at all times. (i) The rights and obligations created in Section 5 of this Employment Agreement are in addition to the rights and obligations contained the Employee Proprietary Information Agreement executed by Levin on August 3, 1993. 6. Arbitration. (a) Arbitrable Claims. To the fullest extent permitted by law, all contractual disputes between Levin (and his attorneys, successors, and assigns) and Odwalla (and its Affiliates, shareholders, directors, officers, employees, agents, successors, attorneys, and assigns) arising under this Agreement ("Arbitrable Claims") shall be resolved by arbitration. All persons and entities specified in the preceding sentence (other than Odwalla and Levin) shall be considered third-party beneficiaries of the rights and obligations created by this Section on Arbitration. (b) Procedure. Arbitration of Arbitrable Claims shall be in accordance with the National Rules for the Resolution of Employment Disputes of the American Arbitration Association, as amended ("AAA Employment Rules"), as augmented in this Agreement. Arbitration shall be initiated as provided by the AAA Employment Rules, although the 9 10 written notice to the other party initiating arbitration shall also include a statement of the claim(s) asserted and the facts upon which the claim(s) are based. Arbitration shall be final and binding upon the parties and shall be the exclusive remedy for all Arbitrable Claims. Either party may bring an action in court to compel arbitration under this Agreement and to enforce an arbitration award. Otherwise, neither party shall initiate or prosecute any lawsuit or administrative action in any way related to any Arbitrable Claim. Notwithstanding the foregoing, either party may, at its option, seek injunctive relief pursuant to section 1281.8 of the California Code of Civil Procedure. All arbitration hearings under this Agreement shall be conducted in San Francisco. In any arbitration proceeding under this Agreement, the parties shall have the rights to discovery provided for in the AAA Employment Rules. The interpretation and enforcement of this agreement to arbitrate shall be governed by the California Arbitration Act. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRABLE CLAIMS, INCLUDING WITHOUT LIMITATION ANY RIGHT TO TRIAL BY JURY AS TO THE MAKING, EXISTENCE, VALIDITY, OR ENFORCEABILITY OF THE AGREEMENT TO ARBITRATE. (c) Arbitrator Selection and Authority. All disputes involving Arbitrable Claims shall be decided by a single arbitrator. The arbitrator shall be selected by mutual agreement of the parties within thirty (30) days of the effective date of the notice initiating the arbitration. If the parties cannot agree on an arbitrator, then the complaining party shall notify the AAA and request selection of an arbitrator in accordance with the AAA Employment Rules. The arbitrator shall have only such authority to award equitable relief, damages, costs, and fees as a court would have for the particular claim(s) asserted. The fees of the arbitrator shall be split between both parties equally. If the allocation of responsibility for payment of the arbitrator's fees would render the obligation to arbitrate unenforceable, the parties authorize the arbitrator to modify the allocation as necessary to preserve enforceability. The arbitrator shall have exclusive authority to resolve all Arbitrable Claims, including, but not limited to, any claim that all or any part of this Agreement is void or unenforceable. (d) Confidentiality. All proceedings and all documents prepared in connection with any Arbitrable Claim shall be confidential and, unless otherwise required by law, the subject matter thereof shall not be disclosed to any person other than the parties to the proceedings, their counsel, witnesses and experts, the arbitrator, and, if involved, the court and court staff. All documents filed with the arbitrator or with a court shall be filed under seal. The parties shall stipulate to all arbitration and court orders necessary to effectuate fully the provisions of this subsection concerning confidentiality. (e) Continuing Obligations. The rights and obligations of Levin and Odwalla set forth in this Section on Arbitration shall survive the termination of Levin's employment and the expiration of this Agreement. 7. Notices. Any notice or other communication under this Agreement must be in writing and shall be effective upon delivery by hand, upon facsimile transmission to Odwalla (but only upon receipt by Levin of a written confirmation of receipt), or three (3) business 10 11 days after deposit in the United States mail, postage prepaid, certified or registered, and addressed to Odwalla or to Levin at the corresponding address or fax number (if any) below. Levin shall be obligated to notify Odwalla in writing of any change in his address. Notice of change of address shall be effective only when done in accordance with this Section. Odwalla's Notice Address: Odwalla, Inc. 120 Stone Pine Road Half Moon Bay, CA 94019 Fax Number: 650-712-5959 Levin's Notice Address: Douglas K. Levin ------------------------- Cape Elizabeth, ME 8. Action by Odwalla. All actions required or permitted to be taken under this Agreement by Odwalla, including, without limitation, exercise of discretion, consents, waivers, and amendments to this Agreement, shall be made and authorized only by the President or by his or her representative specifically authorized in writing to fulfill these obligations under this Agreement. 9. Integration. This Agreement is intended to be the final, complete, and exclusive statement of the terms of Levin's employment by Odwalla. This Agreement supersedes all other prior and contemporaneous agreements and statements, whether written or oral, express or implied, pertaining in any manner to the employment of Levin, and it may not be contradicted by evidence of any prior or contemporaneous statements or agreements. To the extent that the practices, policies, or procedures of Odwalla, now or in the future, apply to Levin and are inconsistent with the terms of this Agreement, the provisions of this Agreement shall control. 10. Amendments; Waivers. This Agreement may not be amended except by an instrument in writing, signed by each of the parties. No failure to exercise and no delay in exercising any right, remedy, or power under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, or power under this Agreement preclude any other or further exercise thereof, or the exercise of any other right, remedy, or power provided herein or by law or in equity. 11 12 11. Assignment; Successors and Assigns. Levin agrees that he will not assign, sell, transfer, delegate, or otherwise dispose of, whether voluntarily or involuntarily, or by operation of law, any rights or obligations under this Agreement. Any such purported assignment, transfer, or delegation shall be null and void. Nothing in this Agreement shall prevent the consolidation of Odwalla with, or its merger into, any other entity, or the sale by Odwalla of all or substantially all of its assets, or the otherwise lawful assignment by Odwalla of any rights or obligations under this Agreement. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties and their respective heirs, legal representatives, successors, and permitted assigns, and shall not benefit any person or entity other than those specifically enumerated in this Agreement. 12. Severability. If any provision of this Agreement, or its application to any person, place, or circumstance, is held by an arbitrator or a court of competent jurisdiction to be invalid, unenforceable, or void, such provision shall be enforced to the greatest extent permitted by law, and the remainder of this Agreement and such provision as applied to other persons, places, and circumstances shall remain in full force and effect. 13. Attorneys' Fees. In any legal action, arbitration, or other proceeding brought to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs. 14. Injunctive Relief. If Levin breaches or threatens to breach any of the covenants in Section 5 on Proprietary Information, the parties acknowledge and agree that the damage or imminent damage to Odwalla's business or its goodwill would be irreparable and extremely difficult to estimate, making any remedy at law or in damages inadequate. Accordingly, Odwalla shall be entitled to injunctive relief against Levin in the event of any breach or threatened breach of the above provisions by Levin, in addition to any other relief (including damages) available to Odwalla under this Agreement or under law. 15. Governing Law. This Agreement shall be governed by and construed in accordance with the law of the State of California. 16. Interpretation. This Agreement shall be construed as a whole, according to its fair meaning, and not in favor of or against any party. By way of example and not in limitation, this Agreement shall not be construed in favor of the party receiving a benefit nor against the party responsible for any particular language in this Agreement. Captions are used for reference purposes only and should be ignored in the interpretation of the Agreement. 12 13 17. Employee Acknowledgment. Levin acknowledges that he has had the opportunity to consult legal counsel in regard to this Agreement, that he has read and understands this Agreement, that he is fully aware of its legal effect, and that he has entered into it freely and voluntarily and based on his own judgment and not on any representations or promises other than those contained in this Agreement. The parties have duly executed this Agreement as of the date first written above. - -------------------------------- Douglas K. Levin Odwalla, Inc. - -------------------------------- By: D. Stephen C. Williamson Its: Chief Executive Officer 13 14 Exhibit A [ODWALLA LOGO] DATE: February 1, 2000 TO: Doug Levin FROM: Stephen Williamson RE: Temporary Housing Odwalla has agreed to cover the following temporary housing and related costs: - Reimbursement of monthly rental costs not to exceed twelve months (on a tax adjusted basis); - Temporary housing deposits and/or advances needed to secure a temporary residence (deposits and/or advances will need to be returned in full to Odwalla); - Temporary house hunting trips for you and your family not to exceed two trips; and - Payment for moving your family (including airfare if requested by you) and household belongings from Maine to California. The above referenced temporary housing and related costs will be available to you effective as of the date of your Employment Agreement. 14 EX-10.2 4 AMENDMENT AGREEMENT 1 EXHIBIT 10.2 [EXECUTION COPY] AMENDMENT AGREEMENT THIS AMENDMENT AGREEMENT is entered into as of April 28, 2000, by and between ODWALLA, INC., a California corporation (hereinafter, together with its successors in title and assigns, called the "BORROWER"), and IMPERIAL BANK, a bank organized under the laws of the State of California (hereinafter, together with its successors in title and assigns, called the "LENDER"). RECITALS Reference is made to that certain Revolving Credit Agreement, dated as of September 3, 1999 (as amended from time to time, the "CREDIT AGREEMENT"), between the Borrower and the Lender. The Borrower has requested the Lender to amend certain of the provisions of the Credit Agreement and other Loan Documents in order (among other things) to increase the Commitment Amount from $5,000,000 to $10,000,000. The Borrower has also requested the Bank to grant to the Borrower and its Subsidiaries all such consents and waivers as may be required under the Credit Agreement and other Loan Documents to permit (a) the execution, delivery and performance by the Borrower and its Subsidiaries of the Agreement and Plan of Merger, dated as of February 2, 2000, by and among (1) the Borrower, (2) Orange Acquisition Sub, Inc., a Maine corporation and a wholly-owned Subsidiary of the Borrower ("MERGER SUB"), (3) Fresh Samantha, Inc., a Maine corporation (hereinafter, together with its successors in title and assigns, called "FRESH SAMANTHA"), and (4) certain other individuals and entities (such Agreement and Plan of Merger, as amended from time to time, being herein called the "MERGER AGREEMENT"), (b) the execution, delivery and performance by the Borrower and its Subsidiaries of each of the other Transactional Agreements (as defined in the Merger Agreement), and (c) the implementation of all of the transactions contemplated by the Merger Agreement and the other Transactional Agreements. The Lender has agreed to amend the Credit Agreement and other Loan Documents and to grant the consents and waivers so requested by the Borrower, all upon the terms and subject to the conditions contained in this Amendment Agreement ("THIS AGREEMENT"). 2 -2- Accordingly, the parties hereto hereby agree as follows: ARTICLE I DEFINITIONS SECTION 1.1. DEFINITIONS IN CREDIT AGREEMENT. Unless otherwise defined herein, terms defined in the Credit Agreement (as amended hereby) are used herein as therein defined. ARTICLE II AMENDMENTS AND CONSENTS Effective on and as of April 28, 2000 ("EFFECTIVE DATE"), and subject always in any event to the provisions contained in Article III hereof: SECTION 2.1. AMENDMENT OF DEFINED TERMS. Section 1.1 of the Credit Agreement is amended by amending and restating the following defined terms to read in their entirety as follows: "ANCILLARY DOCUMENTS" means, collectively, the Governing Documents of each of the Borrower and its Subsidiaries, the Preferred Stock Conversion Documents, the Subordinated Debt Documents, the Merger Documents, the Equity Financing Documents, the Shareholders' Agreements, the Management Agreements, the Employment Agreements, the Tax Sharing Agreements, and all other Instruments that shall from time to time be identified by the Borrower and the Bank in writing as "ANCILLARY DOCUMENTS" for purposes of this Agreement and the other Loan Documents. "CHANGE OF CONTROL" means any event or series of related events (including the Sale or issuance (or series of Sales or issuances) of Equity Interests of the Borrower or of Fresh Samantha by the Borrower or by any holder or holders thereof, or any merger, consolidation, recapitalization, reorganization or other transaction or arrangement) as a result of which: (a) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than the Institutional Investors, shall (whether directly or indirectly) own and control, legally or beneficially, with full power to 3 -3- vote, more than 20% of the Voting Interests of the Borrower outstanding from time to time; (b) individuals who at the beginning of any period of two consecutive years constituted the Borrower's Board of Directors (together with any new directors whose election by the Borrower's Board of Directors or whose nomination for election by the Borrower's shareholders was approved by a vote of not less than 66-2/3% of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the directors then in office; or (c) the Borrower shall cease to own and control (both legally and beneficially), with full power to vote, 100% of the Voting Interests and 100% of all of the other Equity Interests of Fresh Samantha. "CONSOLIDATED ADJUSTED EBITDA" means, in relation to any Person and its Subsidiaries for any period, the Consolidated EBITDA of such Person and its Subsidiaries for such period, MINUS the SUM of (a) the aggregate amount paid or required to be paid in cash in respect of income taxes for such period by such Person and its Subsidiaries, PLUS (b) the aggregate amount of all Capital Expenditures by such Person and its Subsidiaries for such period that were reasonably necessary or appropriate to permit such Person and its Subsidiaries to continue to conduct business in the ordinary course at then present volumes or levels, all as determined on a consolidated basis in accordance with GAAP; provided, however, that, for purposes of calculating the Consolidated Adjusted EBITDA of the Borrower and its Subsidiaries for any period, the aggregate amount of all Capital Expenditures by the Borrower and its Subsidiaries for such period to be subtracted from Consolidated EBITDA for such period shall be determined in accordance with the provisions set forth in the letter of agreement, dated on or about the Merger Closing Date (as amended from time to time), between the Borrower and the Bank, relating to the calculation of Consolidated Adjusted EBITDA. "DISCLOSURE SCHEDULE" means the Disclosure Schedule attached hereto as the Second Schedule, as such Disclosure Schedule has been amended, modified and supplemented by the Disclosure Schedule attached to Amendment No. 1. 4 -4- "ELIGIBLE ACCOUNTS RECEIVABLE" means, with respect to any of the Principal Companies, the aggregate amount of the unpaid portions of Accounts Receivable of such Principal Company (determined, without duplication, net of all (if any) credits, rebates, offsets, holdbacks and other similar adjustments and also net of all (if any) commissions payable to third parties that are or may become adjustments to such Accounts Receivable): (a) that each of the Principal Companies reasonably and in good faith determines to be collectible; (b) that are not outstanding for more than forty-five (45) days past the invoice dates of the respective original invoices therefor; (c) that are with account debtors (i) that are not Affiliates, Subsidiaries, directors, officers or employees of any of the Principal Companies or of any of their Subsidiaries, and (ii) that have purchased the goods or services giving rise to the relevant Accounts Receivable in arm's length transactions; (d) that are with account debtors that are not insolvent or subject to Bankruptcy or Insolvency Proceedings and that have not made assignments for the benefit of creditors; (e) but only to the extent that, with respect to Accounts Receivable from any particular account debtor, the aggregate amount of all of the Accounts Receivable then owing to the Principal Companies from such account debtor exceeds the aggregate amount (determined without duplication) of all claims, defenses, offsets, counterclaims, contras or other similar rights of such account debtor to avoid or otherwise reduce the liabilities and obligations represented by such Accounts Receivable; (f) but only to the extent that, with respect to Accounts Receivable from any particular account debtor, the aggregate amount of all of the Accounts Receivable then owing to the Principal Companies from such account debtor do not exceed twenty percent (20%) of the aggregate amount of all of the Accounts Receivable that are Eligible Accounts Receivable then owing to the Principal Companies from all account debtors; 5 -5- (g) that are not due from any account debtor if more than twenty-five percent (25%) in aggregate of all of the Accounts Receivable then owing to the Principal Companies from such account debtor does not satisfy the requirement for "ELIGIBLE ACCOUNTS RECEIVABLE" set forth in clause (b) of this defined term; (h) in which the Bank has a valid and perfected first-priority security interest; (i) that are not subject to any Liens other than Permitted Liens and other Liens permitted by this Agreement or the other Loan Documents; (j) that are payable in Dollars or Canadian dollars; provided, however, that Accounts Receivable in Canadian dollars may be included in Eligible Accounts Receivable only to the extent that the Dollar equivalent of the aggregate amount of all of such Accounts Receivable in Canadian dollars shall not at any time exceed $150,000; (k) that do not arise from consignment or guaranteed sales, that are not bill and hold accounts, collection accounts or c.o.d. accounts, and that are not distributor sample accounts; (l) that are not Accounts Receivable from Governmental Authorities, unless valid and perfected first-priority security interests in favor of the Bank have been created in such Accounts Receivable in accordance with Applicable Law; (m) that are not Accounts Receivable arising from pre-billing arrangements; (n) that, except as otherwise contemplated by clause (j) of this defined term, are not payable from any office or by any Person outside of the United States, unless such Accounts Receivable are backed by letters of credit in amounts reasonably acceptable to the Bank or by other insurance or credit support in form and substance reasonably satisfactory to the Bank; (o) that are not federal excise tax obligations on the Sale of products that are the subject of such Accounts Receivable; 6 -6- (p) that are not Accounts Receivable requiring the performance of services by any of the Principal Companies prior to payment; (q) that are not customer or account debtor deposits; and (s) that have not otherwise been determined by the Bank, in its reasonable business judgment, to be excluded from Eligible Accounts Receivable. "FINAL MATURITY DATE" means April 30, 2003. "INSTITUTIONAL INVESTORS" means, collectively, (a) Bain Capital Fund VI, L.P., (b) Catterton-Simon Partners III, L.P., and (c) Affiliates of a Person identified in clause (a) or clause (b); provided, however, that the term "INSTITUTIONAL INVESTORS" shall not include any Person who is a successor in title or assignee of any Person identified in clause (a) or clause (b) unless such first Person is also an Affiliate of any Person so identified in clause (a) or clause (b). "LOAN DOCUMENTS" means, collectively, this Agreement, the Amendment Agreement, the Note, the Subsidiary Guaranty, the Collateral Documents, the Closing Date Certificate, the Merger Date Certificate, and each other Instrument executed and delivered pursuant to or in connection with any thereof. "SECURITY AGREEMENTS" means, collectively, the Pledge Agreement, the Security Agreement, the Subsidiary Security Agreement, the Trademark Security Agreement, the Subsidiary Trademark Security Agreement, and each of the Agency Account Agreements entered into from time to time. SECTION 2.2. NEW DEFINED TERMS. Section 1.1 of the Credit Agreement is hereby further amended by adding thereto each of the following new defined terms: "AMENDMENT DOCUMENTS" means, collectively, the Amendment Agreement, the Year 2000 Note, the Subsidiary Guaranty, the Pledge Agreement, the Subsidiary Security Agreement, the Subsidiary Trademark Security Agreement, and the Merger Date Certificate. 7 -7- "AMENDMENT NO. 1" and "AMENDMENT AGREEMENT" mean the Amendment Agreement, dated as of April 28, 2000, between the Borrower and the Bank, upon the terms of which each of the parties hereto has agreed to amend this Agreement. "AMENDMENT NO. 1 EFFECTIVE DATE" means April 28, 2000, the so-called "Effective Date" of Amendment No. 1. "EQUITY FINANCING" means the equity financing, in the aggregate amount of $6,000,000, obtained or to be obtained by the Borrower through the issuance of its Equity Interests upon the terms and subject to the conditions contained in the Equity Financing Documents. "EQUITY FINANCING DOCUMENTS" means, collectively, (a) the Stock Purchase Agreement, dated as of February 11, 2000, among the Borrower and the several investors identified on Schedule I thereto, as amended, modified or supplemented from time to time, and (b) all agreements, Instruments and other documents executed and/or delivered in connection therewith or pursuant thereto, including Amendment No. 1 thereto, dated as of April 25, 2000. "EXISTING FRESHSAM CREDIT FACILITIES" means, collectively, all of the credit facilities, extensions of credit and other financial accommodation from time to time provided to Fresh Samantha or to any of its Subsidiaries under or pursuant to (a) the Second Amended and Restated Revolving Credit and Loan Agreement, dated as of January 10, 2000, among the Fresh Samantha Subs and Citizens Bank of Massachusetts, as amended from time to time, and all of the agreements and Instruments from time to time executed and/or delivered pursuant to or in connection with such Loan Agreement, and (b) the Reimbursement Agreement, dated as of January 10, 2000, by and among Fresh Samantha and certain of its former shareholders, relating to that certain irrevocable standby letter of credit in the amount of $3,000,000 issued by Brown Brothers Harriman & Co. in favor of Citizens Bank of Massachusetts. "EXISTING INDEBTEDNESS" is defined in Section 3.7(c) of Amendment No. 1. "FRESH SAMANTHA" is defined in the Recitals to Amendment No. 1. 8 -8- "FRESH SAMANTHA ACQUISITION" means the acquisition by the Borrower of the Fresh Samantha Subs on the terms and subject to the conditions contained in the Merger Documents. "FRESH SAMANTHA SUBS" means, collectively, Fresh Samantha and FreshSam Juice. "FRESHSAM JUICE" means Fresh Samantha Juice Bars, Inc., a Maine corporation and a wholly-owned Subsidiary of the Borrower and of Fresh Samantha. "INDEBTEDNESS TO BE REFINANCED" is defined in Section 4.5(c) of Amendment No. 1. "MERGER AGREEMENT" is defined in the Recitals to Amendment No. 1. "MERGER CLOSING" and "MERGER CLOSING DATE" shall have the respective meanings ascribed to the terms "Closing" and "Closing Date" in the Merger Agreement. "MERGER DATE CERTIFICATE" means a certificate, dated as of the Merger Closing Date, in or substantially in the form of Exhibit I to Amendment No. 1, duly executed and delivered to the Bank by the Chief Financial Officer of the Borrower. "MERGER DOCUMENTS" means, collectively, the Merger Agreement and the other Transactional Agreements (as defined in the Merger Agreement). "PLEDGE AGREEMENT" means the Pledge Agreement, in or substantially in the form of Exhibit D to Amendment No. 1, to be executed and delivered by the Principal Companies on or promptly after the Merger Closing Date. "PLEDGED COLLATERAL" is defined in the Pledge Agreement. "PREFERRED STOCK CONVERSION DOCUMENTS" means, collectively, (a) the Preferred Stock Conversion Agreement, dated as of April 24, 2000, between the Borrower and Catterton-Simon Partners III, L.P., and (b) all Instruments executed and/or delivered in connection therewith. 9 -9- "PRINCIPAL COMPANIES" means, collectively, the Borrower, Fresh Samantha and FreshSam Juice. "REFINANCING" means the repayment in full of the Indebtedness to be Refinanced "REFINANCING DOCUMENTS" means, collectively, all agreements and other documents relating to the Refinancing. "SHAREHOLDERS' AGREEMENTS", "MANAGEMENT AGREEMENTS", "EMPLOYMENT AGREEMENTS" AND "TAX SHARING AGREEMENTS" are defined in Section 3.5 of Amendment No. 1. "SUBSIDIARY GUARANTORS" means, collectively, (a) each of the Fresh Samantha Subs, and (b) each of the other Subsidiaries of the Borrower that, at any time on or after the Merger Closing Date, shall execute and deliver the Subsidiary Guaranty. "SUBSIDIARY GUARANTY" means the Subsidiary Guaranty Agreement, in or substantially in the form of Exhibit B to Amendment No. 1, to be executed and delivered by the Fresh Samantha Subs on or promptly after the Merger Closing Date. "SUBSIDIARY SECURITY AGREEMENT" means the Subsidiary Security Agreement, in or substantially in the form of Exhibit C to Amendment No. 1, to be executed and delivered by the Fresh Samantha Subs on or promptly after the Merger Closing Date. "SUBSIDIARY TRADEMARK SECURITY AGREEMENT" means the Trademark Security Agreement, in or substantially in the form of Exhibit E to Amendment No. 1, to be executed and delivered by Fresh Samantha on or promptly after the Merger Closing Date. "TRANSACTION DOCUMENTS" means and includes, collectively, (a) the Amendment Documents, (b) the Merger Documents, (c) the Equity Financing Documents, and (d) the Refinancing Documents. "TRANSACTIONS" means, collectively, (a) the execution and delivery of the Amendment Documents by each of the respective parties thereto, (b) the consummation of the Fresh 10 -10- Samantha Acquisition, (c) the consummation of the Equity Financing, and (d) the consummation of the Refinancing. "WAREHOUSE" means, in relation to the Borrower or any of its Subsidiaries at any particular time, any warehouse, depot or other similar Person which is at such time a party to or bound by a Warehouse Service Agreement with the Borrower or any of its Subsidiaries. "WAREHOUSE CONTROL AGREEMENT" means, in relation to any Warehouse, a Warehouse Control Agreement, in or substantially in the form of Exhibit G to Amendment No. 1, to be executed and delivered by such Warehouse, the Borrower or (as the case may be) its Subsidiary, and the Bank. "WAREHOUSE SERVICE AGREEMENT" means any contract, agreement or other Instrument pursuant to which any warehouse, depot or other similar Person shall agree with the Borrower or any of its Subsidiaries to receive, inspect, repair, clean, store or ship any equipment or inventory or any other Property of the Borrower or any of its Subsidiaries. "YEAR 2000 NOTE" means the Promissory Note of the Borrower, dated the Amendment No. 1 Effective Date, in the face amount of $10,000,000, and in or substantially in the form of Exhibit A to Amendment No. 1. SECTION 2.3. AMENDMENT OF CERTAIN OTHER DEFINED TERMS. (a) Clause (ii) of the last sentence of the defined term "AFFILIATE" appearing in Section 1.1 of the Credit Agreement is hereby amended and restated to read in its entirety as follows: (ii) the Borrower shall not be or be deemed to be an Affiliate of any of the Subsidiary Guarantors, and none of the Subsidiary Guarantors shall be or be deemed to be an Affiliate of the Borrower or of any of the other Subsidiary Guarantors, (b) The defined term "PERMITTED DISPOSITION" appearing in Section 1.1 of the Credit Agreement is amended by deleting the Dollar amount "$250,000" appearing in each of clauses (d) and (g) of that defined term, and by substituting in place thereof the dollar amount "$400,000". 11 -11- (c) The defined term "PERMITTED INDEBTEDNESS" appearing in Section 1.1 of the Credit Agreement is amended as follows: (i) by deleting the Dollar amount "$250,000" appearing in each of clauses (c) and (f) of that defined term, and by substituting in place thereof the Dollar amount "$400,000"; (ii) by deleting the Dollar amount "$250,000" appearing in clause (h) of that defined term, and by substituting in place thereof the Dollar amount "$400,000"; and (iii) by amending and restating clause (g) of that defined term to read in its entirety as follows: (g) Indebtedness of the Borrower or of any of its Subsidiaries that (i) is existing immediately after the Merger Closing Date, and (ii) is specifically identified in Section 4.5(a) of the Disclosure Schedule to Amendment No. 1. (d) The defined term "PERMITTED INVESTMENTS" appearing in Section 1.1 of the Credit Agreement is amended as follows: (i) by amending and restating clause (a) of that defined term to read in its entirety as follows: (a) Investments that (i) are owned or held by the Borrower or by any of its Subsidiaries or are outstanding or are in effect immediately after the Merger Closing Date, and (ii) are identified, unless immaterial and insubstantial, in Section 4.5(d) of the Disclosure Schedule to Amendment No. 1. (ii) by amending and restating clause (b) and clause (c) of that defined term to read in their entirety as follows: (b) Investments in cash or in Cash Equivalents, and Investments in the form of Accounts Receivable; (c) Investments by the Borrower in Subsidiary Guarantors, and Investments by Subsidiary Guarantors in the Borrower or in any of the other Subsidiary Guarantors; (iii) by deleting the Dollar amount "$500,000" appearing in clause (h) of that defined term, and by substituting in place thereof the Dollar amount "$800,000". 12 -12- (e) The defined term "PERMITTED LIENS" appearing in Section 1.1 of the Credit Agreement is amended as follows: (i) by amending and restating clause (f) of that defined term to read in its entirety as follows: (f) Liens (i) that are in existence immediately after the Merger Closing Date, and (ii) that secure Indebtedness of the Borrower or of any of its Subsidiaries that constitutes Permitted Indebtedness hereunder or that are specifically identified in Section 4.5(b) of the Disclosure Schedule to Amendment No. 1; (ii) by deleting the Dollar amount "$250,000" appearing in clause (g)(iii) of that defined term, and by substituting in place thereof the Dollar amount "$400,000". SECTION 2.4. AMENDMENT OF FINANCIAL COVENANT SCHEDULE. The Financial Covenant Schedule attached as the First Schedule to the Credit Agreement is hereby amended and restated in its entirety and replaced with a new First Schedule to the Credit Agreement in the form of the Financial Covenant Schedule annexed to this Agreement (i.e., Amendment No. 1) as the First Schedule. SECTION 2.5. COMMITMENT AMOUNT; BORROWING BASE. (a) Section 2.2 of the Credit Agreement is hereby amended by deleting the first sentence of Section 2.2 in its entirety and by substituting in place thereof the following new sentence: The aggregate principal amount ("COMMITMENT AMOUNT") of the Commitment of the Bank (i) shall be $5,000,000 on any date falling prior to the Amendment No. 1 Effective Date, and (ii) shall be $10,000,000 on any date falling on or after the Amendment No. 1 Effective Date and on or prior to the Commitment Termination Date. (b) The Borrower understands that the Lender will be conducting a commercial finance exam with respect to the Accounts Receivable created from time to time by Fresh Samantha. Anything in the definitions of the defined terms "BORROWING BASE" and "ELIGIBLE ACCOUNTS RECEIVABLE" to the contrary notwithstanding, the Borrower understands and agrees with the Lender that, for purposes of calculating the Borrowing Base from time to time pursuant to Section 2.3, Section 3.3.2, Section 5.2.4, Section 7.1.1(c) or any other provisions of the Credit Agreement, the "ELIGIBLE ACCOUNTS RECEIVABLE" shall include ONLY the 13 -13- Eligible Accounts Receivable of the Borrower and shall NOT include any of the Eligible Accounts Receivable of Fresh Samantha or of any other Subsidiaries of the Borrower until (i) the Lender shall have completed a commercial finance exam satisfactory to the Lender with respect to the Accounts Receivable of Fresh Samantha or (as the case may be) any such other Subsidiary, and (ii) the Lender shall have approved in writing the terms and conditions which shall, under the Credit Agreement, govern the definition of the defined term "ELIGIBLE ACCOUNTS RECEIVABLE" to be applicable to the Accounts Receivable of Fresh Samantha or (as the case may be) any such other Subsidiary. SECTION 2.6. NOTE, ETC. Section 3.2 of the Credit Agreement is hereby amended by deleting the first sentence of Section 3.2 in its entirety and by substituting in place thereof the following new sentence: From and after the Amendment No. 1 Effective Date, all Loans made by the Bank from time to time, whether directly to the Borrower or, as the case may be, indirectly for the account of the Borrower to any of the Borrower's Subsidiaries, shall be evidenced by a Promissory Note of the Borrower, dated as of the Amendment No. 1 Effective Date, and in or substantially in the form of Exhibit A to Amendment No. 1 (such Promissory Note, as amended, endorsed, replaced or otherwise modified from time to time, being herein called the "Note"), payable to the order of the Bank in a face amount equal to the Commitment Amount in effect on the Amendment No. 1 Effective Date. SECTION 2.7. EURODOLLAR LOANS. Paragraph (b) of Section 4.4.3 of the Credit Agreement is hereby amended and restated in its entirety as follows: (b) the total number of Eurodollar Loans in effect at any time shall not exceed six (6). SECTION 2.8. AGENCY ACCOUNTS. Section 7.1.12 of the Credit Agreement is hereby amended and restated in its entirety as follows: SECTION 7.1.12. Banking Arrangements. By June 16, 2000 and at all times thereafter, the Borrower will, and the Borrower will cause each of the other Principal Companies to, except (in each case) as and to the extent otherwise expressly permitted by the Bank from time to time, make subject to an agency account agreement, in or substantially in the form of Exhibit H hereto or in the form of 14 -14- Exhibit F to Amendment No. 1, as applicable, or otherwise in form and substance reasonably satisfactory to the Bank (each, an "AGENCY ACCOUNT AGREEMENT"), each bank, securities or other investment account held or maintained by any Principal Company or by any of its Subsidiaries with any bank, investment bank or other financial institution (other than the Bank) and in which any cash, Cash Equivalents or any other Property owned by any Principal Company or any of its Subsidiaries are at any time held or maintained; provided, however, that none of the Principal Companies or their Subsidiaries shall be required to make subject to an Agency Account Agreement any account (a) the cash balances or the fair market value of the Cash Equivalents or other Property of which at no time exceed $5,000, and (b) the aggregate amount of all sums and the fair market value all Cash Equivalents and other Property credited to which in any calendar month do not exceed $10,000; and provided, further, that none of the Borrower or any of the other Principal Companies or their Subsidiaries shall at any time on or after June 16, 2000 cause or permit (i) the aggregate amount of all cash balances and the fair market value of all Cash Equivalents and other Property credited to all accounts held or maintained by the Principal Companies or their Subsidiaries that are not Agency Accounts (in this Section 7.1.12 called "EXCLUDED ACCOUNTS") to exceed $75,000 in the aggregate, or (ii) the aggregate amount of all sums and the fair market value of all Cash Equivalents and other Property credited to Excluded Accounts in any calendar month to exceed $125,000. SECTION 2.9. REPRESENTATIONS AND WARRANTIES. Article VI of the Credit Agreement is hereby amended as follows: (a) Each of the representations and warranties of the Borrower set forth in Article VI, in the Collateral Documents or in any of the other Loan Documents shall, when made or repeated or when deemed to be made or repeated, for all purposes (i) be treated as amended and supplemented by, and to the limited extent of, the information set forth in the Disclosure Schedule to Amendment No. 1, and (ii) be treated as subject to each of the specific exceptions to such representations and warranties contained in the Disclosure Schedule to Amendment No. 1. 15 -15- (b) The last sentence of Section 6.7 of the Credit Agreement is hereby amended by deleting the Dollar amount "$250,000" in each of the three places it appears in such sentence, and by substituting in place thereof the Dollar amount "$400,000" SECTION 2.10. MINIMUM CONSOLIDATED TANGIBLE NET WORTH. Paragraph (c) of Section 7.2.4 of the Credit Agreement is hereby amended to read in its entirety as follows: (c) MINIMUM CONSOLIDATED TANGIBLE NET WORTH. Permit the Consolidated Tangible Net Worth as at any Test Date to be less than the sum of: (i) $28,000,000; PLUS (ii) fifty percent (50%) of the Consolidated Net Income (if and to the extent positive) of the Borrower and its Subsidiaries for the Test Quarter ending on the most recent Test Date for which the Bank shall have received financial statements required by Section 7.1.1(a) or by Section 7.1.1(b); PLUS (iii) fifty percent (50%) of the sum of the Consolidated Net Income (if and to the extent positive) of the Borrower and its Subsidiaries for each Test Quarter ended prior to the Test Date referred to in clause (ii); provided, however, that, in calculating such sum, only the Consolidated Net Income for Test Quarters for which Consolidated Net Income was positive shall be included; PLUS (iv) the aggregate amount of all of the Net Proceeds received by the Borrower or any of its Subsidiaries from time to time after the Merger Closing Date from the issue and sale by the Borrower or by any of its Subsidiaries to any Person or Persons (other than the Borrower or any of its Subsidiaries) of any Equity Interests of the Borrower or of any of its Subsidiaries. For purposes of this paragraph (c), (A) the term "TEST QUARTER" means any fiscal quarter of the Borrower ending after April 30, 2000, and (B) the term "TEST DATE" means the last day of any Test Quarter. 16 SECTION 2.11. COVENANTS AND EVENTS OF DEFAULT. Sections 7.2.5, 7.2.6, 7.2.13, 8.1.5 and 8.1.7 are hereby amended by: (i) deleting the Dollar Amount "$250,000" whenever it appears in: (A) clause (b) and clause (b)(i) of Section 7.2.5; (B) clause (c) and clause (d) of Section 7.2.6; (C) clause (b) and clause (c) of Section 7.2.13; (D) clauses (a), (b) and (c) of Section 8.1.5; and (E) Section 8.1.7; and (ii) by substituting in place of the Dollar amount "$250,000", wherever so deleted, the Dollar amount "$400,000". SECTION 2.12. CONSENTS. In reliance on the agreements, representations, warranties and covenants of the Borrower contained in this Agreement, and subject always to the satisfaction of the conditions precedent contained in Article III, the Lender hereby grants to the Borrower and its Subsidiaries all such consents and waivers as are required under the Credit Agreement and other Loan Documents for the execution, delivery and performance by the Borrower and its Subsidiaries of the Merger Documents and for the implementation of all of the transactions contemplated by the Merger Documents. Upon satisfaction of the conditions precedent contained in Article III of this Agreement, all of such consents and waivers of the Lender shall be deemed effective immediately prior to consummation of the transactions contemplated by the Merger Documents. ARTICLE III CONDITIONS PRECEDENT Each of the amendments to the Credit Agreement and other Loan Documents, and each of the consents, set forth in Article II of this Agreement shall be effective and in full force and effect on and as of and from and after the Effective Date; provided, however, that each of the following conditions precedent shall first be satisfied: SECTION 3.1. EXECUTION AND DELIVERY OF THIS AGREEMENT AND YEAR 2000 NOTE. The Lender shall have received (a) counterparts of this Agreement, dated as of the Effective Date, duly executed and delivered by 17 -17- the Borrower (or, if executed counterparts shall not have been received from the Borrower, the Lender shall have received, in form reasonably satisfactory to the Lender, a facsimile or other written confirmation from the Borrower of the execution and delivery of a counterpart hereof by the Borrower), and (b) the Year 2000 Note, dated as of the Effective Date, duly executed and delivered by the Borrower. SECTION 3.2. PLEDGE AGREEMENT. The Lender shall have received counterparts of the Pledge Agreement, duly executed and delivered by each of the Principal Companies, together with: (a) all stock certificates and other Instruments representing Pledged Collateral then to be pledged thereunder; (b) an undated stock power for each such stock certificate or other such Instrument duly executed in blank by an authorized officer of the pledgor thereof; (c) with respect to Pledged Collateral, if any, consisting of book-entry shares, evidence that all actions which are necessary to create and perfect the security interests and Liens therein pursuant to the Pledge Agreement in accordance with Article 8 of the Uniform Commercial Code have been taken; (d) evidence that all such actions have been taken as may be necessary or, in the reasonable opinion of the Lender, desirable to perfect the security interests and Liens purported to be created by the Pledge Agreement in partnerships or limited liability companies (including evidence that security interests and Liens created by the Pledge Agreement in partnerships or limited liability companies have been duly recorded in the books and records of such Persons); and (e) each of the promissory notes or other Instruments required to be pledged thereunder, endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank reasonably satisfactory to the Lender) by the pledgor thereof. SECTION 3.3. SUBSIDIARY SECURITY AGREEMENT; UCC FILINGS; ETC. The Lender shall have received counterparts of the Subsidiary Security Agreement, duly executed and delivered by each of the Fresh Samantha Subs and the Lender, together with: (a) executed copies of financing statements (Form UCC-1) in appropriate form for filing under the Uniform Commercial Code of each jurisdiction as may be reasonably necessary to perfect the security 18 -18- interests and Liens purported to be created by the Subsidiary Security Agreement; and (b) copies of requests for information (Form UCC-11), or equivalent reports, each of recent date, listing all effective financing statements that name each Fresh Samantha Sub as debtor and that are filed in the jurisdictions referred to in clause (a), together with copies of such financing statements (none of which shall cover the Collateral, EXCEPT (i) those with respect to which the secured party thereunder shall have executed appropriate termination statements or a written commitment to execute and deliver the same, and (ii) to the extent evidencing Liens permitted by the Credit Agreement and other Loan Documents). Any other action, including the taking of possession of specific Collateral by the Lender, reasonably required by the Lender to create a perfected security interest and Lien in the Collateral described in the Collateral Documents and other Security Instruments referred to in Section 3.2 or in this Section 3.3 shall have been properly taken in order to create such a perfected security interest and Lien. SECTION 3.4. OTHER AMENDMENT DOCUMENTS. Each of the other Amendment Documents shall have been duly and properly authorized, executed and delivered by the respective party or parties thereto and shall be in full force and effect. The Lender shall have received original counterparts of each of such other Amendment Documents. Each such other Amendment Document shall, where applicable, be substantially in the form of an Exhibit attached hereto, and all of such other Amendment Documents shall be in form and substance reasonably satisfactory to the Lender. All exhibits, schedules or other attachments to any of the Collateral Documents or other Amendment Documents shall be in form and substance reasonably satisfactory to the Lender. SECTION 3.5. SHAREHOLDERS' AGREEMENT; ETC. On, prior to or promptly after the Effective Date, there shall have been delivered to the Lender true, correct and complete copies of: (a) all material agreements entered into by the Borrower or any of its Subsidiaries governing the terms and relative rights of its Equity Interests and, to the extent known to the Borrower or any of its Subsidiaries, any agreements entered into by shareholders or other equity holders relating to any such entity with respect to its Equity Interests (collectively, the "SHAREHOLDERS' AGREEMENTS"); (b) all (if any) material agreements with senior members of, or with respect to, the management of the Borrower or any of its Subsidiaries (collectively, the "MANAGEMENT AGREEMENTS"); (c) any 19 -19- material employment contracts entered into by the Borrower or any of its Subsidiaries (collectively, the "EMPLOYMENT AGREEMENTS"); and (d) all (if any) agreements relating to the sharing of tax liabilities and benefits among the Borrower and/or its Subsidiaries (collectively, the "TAX SHARING AGREEMENTS"); all of which Shareholders' Agreements, Management Agreements, Employment Agreements and Tax Sharing Agreements shall be in form and substance reasonably satisfactory to the Lender and shall be in full force and effect on or as of the Effective Date. SECTION 3.6. CONSUMMATION OF CERTAIN TRANSACTIONS. (a) On, prior to or promptly after the Effective Date (and, in any event, by May 5, 2000), BOTH (i) the Equity Financing shall have been consummated, AND (ii) the Fresh Samantha Acquisition shall have been consummated. (b) Each of the following conditions precedent shall have been satisfied with respect to the Equity Financing: (i) the Borrower shall have received, for its own account, an aggregate gross amount of not less than $6,000,000 from the Equity Financing; and (ii) on, prior to or promptly after the Effective Date (and, in any event, by May 5, 2000), there shall have been delivered to the Lender true, correct and complete copies of the Equity Financing Documents, and all of the material terms and conditions of the Equity Financing Documents shall be reasonably satisfactory in form and substance to the Lender; all material conditions precedent to the consummation of the Equity Financing, as set forth in the Equity Financing Documents, shall have been satisfied, and not waived in any material respect unless consented to by the Lender (which consent shall not be unreasonably withheld or delayed), to the reasonable satisfaction of the Lender; and the Equity Financing shall have been consummated in all material respects in accordance with the material terms and conditions of the applicable Equity Financing Documents and all Applicable Law. (c) on, prior to or promptly after the Effective Date (and, in any event, by May 5, 2000), each of the following conditions precedent shall have been satisfied with respect to the Fresh Samantha Acquisition: (i) there shall have been delivered to the Lender true, correct and complete copies of the Merger Documents, and all of the materials terms and conditions of such Merger Documents 20 -20- shall be reasonably satisfactory in form and substance to the Lender; (ii) the Fresh Samantha Acquisition shall have been consummated in all material respects in accordance with the Merger Documents and all Applicable Law; and all material conditions precedent to the consummation of the Fresh Samantha Acquisition, as set forth in the Merger Documents, shall have been satisfied, and not waived in any material respect, except with the prior consent of the Lender (which consent shall not be unreasonably withheld or delayed), to the reasonable satisfaction of the Lender, EXCEPT, in each case, as could not reasonably be expected to have any Materially Adverse Effect; and (iii) the material terms and conditions of each Merger Document shall be in all material respects the same as and consistent with the terms and conditions contained in the form of such Merger Document previously delivered to the Lender and shall continue to be in full force and effect on and as of the Merger Closing Date, and no material provision of any such Merger Document shall have been modified or waived in any respect reasonably determined by the Lender to be material, in each case, without the prior written consent of the Lender (which consent shall not be unreasonably withheld or delayed), EXCEPT, in each case, as could not reasonably be expected to have any Materially Adverse Effect. SECTION 3.7. REFINANCINGS. (a) On or prior to the Merger Closing Date, all of the commitments in respect of the Indebtedness to be Refinanced shall have been terminated, and all loans and notes with respect thereto shall have been repaid in full, together with interest thereon, all letters of credit issued thereunder shall have been terminated, and all other amounts (including premiums) owing pursuant to the Indebtedness to be Refinanced shall have been repaid in full, and all Instruments in respect of the Indebtedness to be Refinanced and all guarantees with respect thereto shall have been terminated (except as to indemnification provisions which may survive to the extent provided therein) and shall be of no further force and effect. (b) On or prior to the Merger Closing Date, the creditors in respect of the Indebtedness to be Refinanced shall have terminated and released, or (as the case may be) shall have made binding commitments in writing to terminate and release, any and all security interests and 21 -21- Liens on the Property owned by the Fresh Samantha Subs. The Lender shall have received all such releases of security interests in and Liens on the Property owned by the Fresh Samantha Subs as may have been reasonably requested by the Lender (or, as the case may be, binding commitments in writing with respect to such releases), which releases (or, as the case may be, such commitments) shall be in form and substance reasonably satisfactory to the Lender. Without limiting the foregoing, there shall have been delivered (or, as the case may be, binding commitments to deliver) (i) proper termination statements (Form UCC-3 or the appropriate equivalent) for filing under the Uniform Commercial Code of each jurisdiction where a financing statement (Form UCC-1 or the appropriate equivalent) was filed with respect to the Indebtedness to be Refinanced and the documentation related thereto, (ii) termination or reassignment of any security interest in, or Lien on, any patents, trademarks, copyrights or similar interests of any of the Fresh Samantha Subs on which filings have been made, (iii) terminations of, or (as the case may be) binding commitments in writing to terminate, all mortgages, leasehold mortgages, deeds of trust and leasehold deeds of trust created with respect to Property of any of the Fresh Samantha Subs, in each case, to secure the obligations in respect of the Indebtedness to be Refinanced, all of which shall be in form and substance reasonably satisfactory to the Lender, and (iv) all collateral owned by any of the Fresh Samantha Subs in the possession of any of the creditors in respect of the Indebtedness to be Refinanced or any collateral agent or trustee under any related security document shall have been returned to the Fresh Samantha Subs. (c) On the Merger Closing Date and after giving effect to the Transactions completed on or prior to the Merger Closing Date, the Borrower and its Subsidiaries shall have no Indebtedness outstanding other than (i) the Loans, and (ii) the Indebtedness identified in Section 4.5(a) of the Disclosure Schedule (with the Indebtedness described in this clause (ii) being herein called the "EXISTING INDEBTEDNESS"). On and as of the Merger Closing Date, all of the Existing Indebtedness shall remain outstanding after giving effect to the Transactions and the other transactions contemplated hereby without any default or event of default existing thereunder or arising as a result of the Transactions and the other transactions contemplated hereby (except to the extent amended or waived by the parties thereto on terms and conditions reasonably satisfactory to the Lender). SECTION 3.8. FINANCIAL STATEMENTS. The Borrower shall have furnished to the Lender (a) the unaudited consolidated financial statements of the Borrower and its Subsidiaries for the 22 -22- period ending February 26, 2000 together with internally generated estimates for the third and fourth quarters of the 2000 fiscal year, which shall have been prepared in accordance with GAAP (except for the absence of footnotes and subject to normal year-end adjustments), and (b) the pro forma consolidated balance sheet of the Borrower and its Subsidiaries as at the Merger Closing Date, together with the related pro forma consolidated statements of operations and of cash flows for the six (6) fiscal months ended February 26, 2000, all of such financial statements to be prepared on a pro forma basis to reflect the consummation of each of the Transactions completed or to be completed on or prior to the Merger Closing Date, and to be in form and substance reasonably satisfactory to the Lender. SECTION 3.9. MERGER DATE CERTIFICATE. The Lender shall have received a duly executed and completed Merger Date Certificate, dated as of the Merger Closing Date, in or substantially in the form of Exhibit I, duly executed on behalf of the Borrower by its Chief Financial Officer. SECTION 3.10. CERTIFICATES OF INSURANCE. The Lender shall have received certificates of insurance from the insurance brokers for the Principal Companies, or other evidence reasonably satisfactory to the Lender, dated as of a recent date, identifying insurers, types of insurance, insurance limits and policy terms, and otherwise describing all of the insurance required to be maintained by the Principal Companies and their Subsidiaries in accordance with the terms the Loan Documents, and certifying that the Lender has been named as additional insured or (as the case may be) loss payee under all of such insurance. SECTION 3.11. RESOLUTIONS, ETC. The Lender shall have received: (a) from each of the Principal Companies, a certificate of its Secretary or any Assistant Secretary as to: (i) resolutions of its board of directors or (as the case may be) managers or general partners then in full force and effect authorizing the execution, delivery and performance of, in each case, to the extent such Principal Company is a party thereto, this Agreement and each of the other Amendment Documents; (ii) the incumbency and signatures of the authorized officers of each such Principal Company authorized to act with respect to (in each case, to the extent such Principal Company is a party thereto) this Agreement and each of the other Amendment Documents, (upon which certificate the Lender may conclusively rely until the Lender shall have received a further certificate of such Principal Company canceling or amending such prior 23 -23- certificate, which further certificate shall be reasonably satisfactory to the Lender); and (iii) each Governing Document of such Principal Company; and (b) such other similar documents as the Lender may reasonably request with respect to any matter relevant to this Agreement, the other Amendment Documents, the Transaction Documents or the transactions contemplated hereby or thereby. Each of such documents shall be in form and substance reasonably satisfactory to the Lenders. SECTION 3.12. CERTIFICATES OF GOOD STANDING, ETC. The Lender shall have received a good standing certificate as of a recent date for each Principal Company from the Secretary of State of the jurisdiction of incorporation or organization of such Principal Company and each State or other jurisdiction where the failure of such Principal Company to be qualified to do business as a foreign corporation or other entity could reasonably be expected to have a Materially Adverse Effect. SECTION 3.13. NO MATERIALLY ADVERSE EFFECT; ETC. (a) No events or developments shall have occurred since August 30, 1999 which, individually or in the aggregate, have had or could reasonably be expected to have a Materially Adverse Effect. (b) On or prior to the Merger Closing Date, all necessary governmental and third party approvals and/or consents in connection with the Transactions completed or to be completed on or prior to the Merger Closing Date and the other transactions contemplated by the Transaction Documents relating to such Transactions and otherwise referred to therein shall have been obtained and remain in effect, and all applicable waiting periods with respect thereto shall have expired without any action being taken by any competent Governmental Authority which restrains, prevents or imposes materially adverse conditions upon the consummation of such Transactions or the other transactions contemplated by such Transaction Documents or otherwise referred to therein. Additionally, there shall not exist any judgment, order, injunction or other restraint issued or filed or a hearing seeking injunction or other restraint pending or notified prohibiting or imposing materially adverse conditions upon, or materially delaying or making economically unfeasible the consummation of, such Transactions or the other transactions contemplated by such Transaction Documents or otherwise required to be consummated thereby. 24 -24- SECTION 3.14. AFFILIATE TRANSACTIONS; OTHER CORPORATE TRANSACTIONS. (a) AFFILIATE TRANSACTIONS. Since September 3, 1999, the Borrower shall not have made any Restricted Payments or entered into, performed or completed any Affiliate Transactions, EXCEPT the payments and transactions described in Section 4.12 of the Disclosure Schedule. (b) OTHER CORPORATE TRANSACTIONS. Since September 3, 1999, the Borrower shall not have (i) merged or consolidated with any other Person, or (ii) sold, transferred or otherwise disposed of all or any substantial part of its Property otherwise than in the ordinary course of business, EXCEPT the mergers, Sales and other dispositions described in and contemplated by the Transaction Documents. (c) CHANGE OF CONTROL. No Change of Control shall have occurred since September 3, 1999, EXCEPT in connection with an as a result of the consummation of the Transactions. SECTION 3.15. OPINIONS OF COUNSEL. The Lender shall have received a written opinion, dated the Merger Closing Date addressed to the Lender, from special counsel to the Principal Companies, in or substantially in the form of Exhibit J, and otherwise in form and substance reasonably satisfactory to the Lender. SECTION 3.16. COMPLIANCE WITH WARRANTIES; NO DEFAULT; ETC. The representations and warranties of the Borrower set forth in Article IV shall have been true and correct in all material respects on and as of the date made; and, immediately after giving effect to the consummation of the Transactions: (a) such representations and warranties shall be true and correct in all material respects with the same full force and effect as if then made (except for any such representation or warranty that relates solely to a prior date); and (b) no Default shall then be continuing. SECTION 3.17. FEES, COSTS AND EXPENSES. The Borrower shall have paid in full (a) to the Lender, for the account of the Lender, an amendment fee in the total amount of $75,000, and (b) to special counsel for the Lender, all of the reasonable out-of-pocket costs and expenses of special counsel to the Lender incurred from September 3, 1999 through the Merger Closing Date and that are payable by the Borrower pursuant to Section 9.3 of the Credit Agreement and for which an invoice shall 25 -25- have been submitted to the Borrower on or prior to the Merger Closing Date. ARTICLE IV REPRESENTATIONS, AND WARRANTIES The Borrower represents and warrants to the Lender that, on and as of the Merger Closing Date, immediately after giving effect to the implementation of the Fresh Samantha Acquisition: SECTION 4.1. REPRESENTATIONS IN LOAN DOCUMENTS. Each of the representations and warranties made by or on behalf of the Borrower to the Lender in the Loan Documents prior to the Merger Closing Date was true and correct in all material respects when made and is true and correct in all material respects on and as of the Merger Closing Date; EXCEPT (a) as affected by the consummation of the transactions contemplated by this Agreement and the other Loan Documents; (b) to the extent that any such representation or warranty relates by its express terms solely to a prior date; and (c) to the extent that any such representation or warranty is affected or otherwise qualified by information referred to in the Disclosure Schedule attached hereto. SECTION 4.2. ORGANIZATION; ETC. Each Principal Company is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, is duly qualified to do business and is in good standing as a foreign organization in each jurisdiction where the nature of its business makes such qualification necessary or appropriate, and has full power and authority and holds all requisite material governmental licenses, permits and other Approvals to own or hold under lease its material Properties and to conduct its business substantially as currently conducted by it, and to execute, deliver and perform each of the Amendment Documents executed or to be executed by it. SECTION 4.3. POWER, AUTHORITY. Each Principal Company has taken all necessary organizational action to authorize the execution, delivery and performance by it of each of the Amendment Documents executed or to be executed by it. The execution, delivery and performance by each Principal Company of each of the Amendment Documents to which such Principal Company is or is to become a party do not and will not (except for Approvals which have been already given or obtained) require any Approvals, will not result in any violation of, or constitute any default under, (a) any provisions of any Governing 26 -26- Documents of any Principal Company or any other Ancillary Documents, (b) any other material Contractual Obligations of any Principal Company, or (c) any Applicable Laws, and do not and will not result in or require the creation or imposition of any Liens on any of the Property of any Principal Company pursuant to the provisions of any Instruments binding upon or applicable to any Principal Company or to any of its Property. SECTION 4.4. VALIDITY; ETC. Each of this Agreement and the Year 2000 Note has been duly executed and delivered by the Borrower and constitutes the legal, valid, and binding Obligation of the Borrower, enforceable in accordance with its terms. Each of the other Amendment Documents to which any Principal Company is or is to become a party has been, or, upon execution and delivery thereof will be, duly executed and delivered by such Principal Company, and does or will constitute the legal, valid and binding Obligation of such Principal Company, enforceable in accordance with its terms. The enforceability of this Agreement and the other Amendment Documents against each Principal Company which is or is to become a party thereto shall be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws at the time in effect affecting the enforceability of the rights of creditors generally and to general equitable principles. SECTION 4.5. EXISTING INDEBTEDNESS; ABSENCE OF DEFAULTS; ETC. (a) The Existing Indebtedness of each of the Borrower and its Subsidiaries as of the Merger Closing Date is identified in Section 4.5(a) of the Disclosure Schedule attached hereto. With respect to each item of Existing Indebtedness identified in Section 4.5(a) of the Disclosure Schedule, the outstanding principal amount of which is $3,000,000 or more on or as of the Merger Closing Date, the Borrower has delivered or otherwise made available to the Lender a true and complete copy of each Instrument evidencing such Existing Indebtedness or pursuant to which such Existing Indebtedness was issued or secured (including each amendment, consent, waiver or other Instrument executed and/or delivered in respect thereof), as the same is in effect on or as of the Merger Closing Date. Except as otherwise disclosed in Section 4.5(a) of the Disclosure Schedule, neither the Borrower nor any of its Subsidiaries is in default in the payment of any Existing Indebtedness, which payments, in the aggregate, exceed $500,000, or in default or breach, in any material respect, in the performance of any other material obligation under any Instrument evidencing or governing any Existing Indebtedness (in an aggregate amount exceeding $500,000) or pursuant to which any 27 -27- such Existing Indebtedness (in an aggregate amount exceeding $500,000) was issued or secured. (b) Section 4.5(b) of the Disclosure Schedule identifies all of the Liens upon Property of the Borrower or of any of its Subsidiaries that secure Existing Indebtedness of the Borrower or of any of its Subsidiaries and that are in existence on or as of the Merger Closing Date and either (i) are known to the Borrower or to any of its Subsidiaries on or as of the Merger Closing Date, or (ii) are of record on and as of the Merger Closing Date. (c) Section 4.5(c) of the Disclosure Schedule sets forth a true and complete list of all Indebtedness of the Borrower or of any of its Subsidiaries which is to be repaid in full on or prior to the Merger Closing Date (including, in any event, the Existing FreshSam Credit Facilities) (the "INDEBTEDNESS TO BE REFINANCED"), in each case, showing the aggregate principal amount thereof, the name of the respective borrower and any other Person which directly or indirectly guaranteed such Indebtedness. (d) Section 4.5(d) of the Disclosure Schedule identifies each Investment of the Borrower or of any of its Subsidiaries that is owned or held or is outstanding or in effect on or as of the Merger Closing Date, other than insubstantial and immaterial Investments and other than Investments of the kind described in any of clauses (b) through (e) or in clause (g) of the definition of the term "PERMITTED INVESTMENTS". SECTION 4.6. LITIGATION; ANCILLARY DOCUMENTS; ETC. (a) Except as to matters identified in Section 4.6 of the Disclosure Schedule, there is no pending or, to the best knowledge of the Borrower, threatened litigation, arbitration or governmental investigation or proceeding against the Borrower or any of its Subsidiaries or to which any of the Properties of any thereof is subject which: (i) has had and continues to have, or (as the case may be) could reasonably be expected to have, any Materially Adverse Effect; (ii) relates to this Agreement, any of the other Loan Documents or any of the Ancillary Documents; or (iii) seeks to enjoin or otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of, any of the transactions contemplated by or in connection 28 -28- with this Agreement, any of the other Loan Documents or any of the Ancillary Documents. None of such pending or threatened proceedings has had and continues to have, or could reasonably be expected to have, any Materially Adverse Effect. (b) Each of the Ancillary Documents to which any Principal Company is a party or by which any Principal Company is bound on or as of the Merger Closing Date is identified in Section 4.6 of the Disclosure Schedule. (c) Each of the Ancillary Documents is in full force and effect. No material default on the part of any Person bound by any Ancillary Document, and no material breach by any such Person in the payment, performance or observance of any of its material obligations thereunder, is continuing. No Person bound by any of the Ancillary Documents has exercised or attempted to exercise any right of termination, cancellation or rescission thereunder; and no event or condition is continuing which permits any Person bound by any of the Ancillary Documents to exercise any right of termination, cancellation or rescission thereunder. (d) No Change of Control has occurred, EXCEPT in connection with and as a result of the consummation of the Transactions. SECTION 4.7. CORPORATE STRUCTURE, ETC. Section 4.7 of the Disclosure Schedule identifies, as of the Merger Closing Date, each Subsidiary of the Borrower, each Subsidiary Guarantor and each Inactive Subsidiary. Section 4.7 of the Disclosure Schedule identifies, with respect to each of the Principal Companies and its Subsidiaries identified in Section 4.7 of the Disclosure Schedule, as of the Merger Closing Date, (a) the State or other jurisdiction of organization of each such Person, (b) the number of authorized and outstanding shares of each class of Capital Stock and all other Equity Interests of each such Person, and (c) with respect to each Subsidiary of the Borrower, (i) each Person which owns or controls (whether legally or beneficially) any of the Capital Stock or other Equity Interests of each such Subsidiary, and (ii) the number of shares or units of each class or kind of Capital Stock or other Equity Interests so owned or controlled by each such Person. SECTION 4.8. TITLE TO PROPERTIES. All Real Estate owned or leased by the Borrower or by any of its Subsidiaries as of the Merger Closing Date, and the nature of the interest therein, is identified in Section 4.8 of the Disclosure Schedule. Each of the Borrower and its Subsidiaries has good record and marketable title in fee simple to, or valid leasehold interests in, all Real Estate used in the ordinary conduct 29 -29- of its businesses, including all Real Estate identified in Section 4.8 of the Disclosure Schedule. None of such Real Estate is subject to any Liens, EXCEPT for Permitted Liens, other Liens permitted by Section 7.2.3, and such defects in title as, individually or in the aggregate, have not had and could not reasonably be expected to have a Materially Adverse Effect. SECTION 4.9. WAREHOUSES AND WAREHOUSE SERVICE AGREEMENTS. Section 4.9 of the Disclosure Schedule identifies (a) each Warehouse which, on a regular basis, warehouses equipment or inventory of the Borrower or of any of its Subsidiaries with a fair market value in excess of $100,000 at any time, (b) the location of each such Warehouse, and (c) the Warehouse Service Agreement between the Borrower or any of its Subsidiaries, on the one hand, and each such Warehouse, on the other hand, in each case, as of the Merger Closing Date. SECTION 4.10. AGENCY ACCOUNTS; ETC. Section 4.10 of the Disclosure Schedule identifies, as of the Merger Closing Date, each bank, securities or other investment account held or maintained by the Borrower or any of its Subsidiaries on or as of the Merger Closing Date with any bank, investment bank or other financial institution (other than the Lender) and in which any cash, Cash Equivalents or other Property owned by the Borrower or any of its Subsidiaries are at any time held or maintained. SECTION 4.11. TRADEMARKS, ETC. All trademarks and patents owned by the Borrower on the Merger Closing Date which have been registered with the U.S. Patent and Trademark Office or for which applications for registration have been made with the U.S. Patent and Trademark Office are identified in Section 4.11 of the Disclosure Schedule. All trademarks owned by any Subsidiary of the Borrower on the Merger Closing Date which have been registered with the U.S. Patent and Trademark Office or for which applications for registration have been made with the U.S. Patent and Trademark Office are identified in Attachment 1 of the Subsidiary Trademark Security Agreement. Except as otherwise described in Section 4.11 of the Disclosure Schedule, none of the Borrower or any of its Subsidiaries owns, on or as of the Merger Closing Date, any patents or copyrights which have been registered or otherwise recorded with the U.S. Patent and Trademark Office or the U.S. Copyright Office or for any which any applications for registration or recording have been made with the U.S. Patent and Trademark Office or the U.S. Copyright Office. SECTION 4.12. TRANSACTIONS WITH AFFILIATES. Section 4.12 of the Disclosure Schedule identifies (a) all (if any) Indebtedness of the 30 -30- Borrower or of any of its Subsidiaries to any Affiliate of the Borrower on or as of the Merger Closing Date, material Contractual Obligations of the Borrower or of any of its Subsidiaries to any Affiliate of the Borrower on or as of the Merger Closing Date, and Investments in the Borrower or in any of its Subsidiaries owned, held or controlled by any Affiliate of the Borrower on or as of the Merger Closing Date, and (b) all (if any) Indebtedness of any Affiliate of the Borrower to the Borrower or to any of its Subsidiaries on or as of the Merger Closing Date, material Contractual Obligations of any Affiliate of the Borrower to the Borrower or to any of its Subsidiaries on or as of the Merger Closing Date, and Investments in any Affiliate of the Borrower owned, held or controlled by the Borrower or by any of its Subsidiaries on or as of the Merger Closing Date. SECTION 4.13. FINANCIAL STATEMENTS, ETC. (a) All balance sheets, statements of operations and other financial statements which have been furnished by the Borrower or any of its Subsidiaries to the Lender on or prior to the Merger Closing Date for the purposes of or in connection with this Agreement or any of the transactions contemplated hereby do present fairly, in all material respects, the financial condition of the Persons involved as of the dates thereof and the results of their operations for the periods covered thereby. (b) The projected consolidated statements of operations and of cash flows of the Borrower and its Subsidiaries for each of fiscal years 2000 through 2002, all of which have been delivered to the Lender prior to the date of this Agreement, have been prepared on the basis of the reasonable assumptions accompanying them and reflect, as of the date of preparation, the good faith estimates made on a reasonable basis by the Borrower of the performance of the Borrower and its Subsidiaries for the periods covered thereby based on such assumptions. Nothing in this paragraph (b) shall be deemed a representation or assurance that such projections will, in fact, be achieved. SECTION 4.14. MATERIALLY ADVERSE EFFECT. No events or developments have occurred since August 30, 1999 which, individually or in the aggregate, have had or could reasonably be expected to have any Materially Adverse Effect. SECTION 4.15. NO DEFAULTS. After giving effect to this Agreement, no Defaults or Events of Default are continuing under the Credit Agreement or any of the other Loan Documents. 31 -31- ARTICLE V COVENANTS The Borrower agrees with the Lender and warrants that, from and after the date of this Agreement and until the Commitment shall have terminated in full and all of the Obligations shall have been paid in full, the Borrower will, and will (as applicable) cause each of its Subsidiaries to: SECTION 5.1. EXCESS CASH INVESTMENT ARRANGEMENTS. The Borrower agrees with the Lender that the Borrower will, and will cause each of its Subsidiaries to, comply at all times with the terms and conditions applicable to the Borrower and its Subsidiaries contained in that certain letter of agreement, dated on or about the Merger Closing Date, between the Borrower and the Lender, relating to the investment by the Borrower and its Subsidiaries with the Lender from time to time of the excess cash available to the Borrower and its Subsidiaries from time to time. SECTION 5.2. COLLATERAL AUDITS. The Borrower acknowledges and agrees that the Lender shall have the right to perform a collateral audit at the offices and at the business and Property locations of the Borrower and each of its Subsidiaries twice during each fiscal year of the Borrower so long as no Events of Default shall be continuing, and, if any Events of Default shall be continuing, at such additional time or times during each fiscal year of the Borrower as the Lender shall in its sole discretion determine to be necessary or appropriate. All of the reasonable out-of-pocket costs and expenses incurred or sustained by the Lender in connection with the conduct of each of such collateral audits shall be for the account of the Borrower. SECTION 5.3. WAREHOUSE CONTROL AGREEMENTS, ETC. (a) The Borrower agrees to use, and to cause each of its Subsidiaries to use, (i) all commercially reasonable efforts, including making written requests and follow-up telephone calls, to cause a Warehouse Control Agreement in or substantially in the form of Exhibit G hereto or otherwise reasonably satisfactory to the Lender in form and substance to be executed and delivered to the Lender by each Warehouse which (A) is not a party to or bound by a Warehouse Control Agreement, and (B) on a regular basis, warehouses equipment or inventory of the Borrower or any of its Subsidiaries having a fair market value in excess of $100,000 at any time, and (ii) all commercially reasonable efforts, in connection with the negotiation, completion, renewal or extension after the date hereof of any Warehouse Service Agreement, to cause the 32 -32- Warehouse which is a party thereto (if such Warehouse, on a regular basis, warehouses equipment or inventory of the Borrower or any of its Subsidiaries having a fair market value in excess of $100,000 at any time) to execute and deliver to the Lender a Warehouse Control Agreement reasonably satisfactory to the Lender in form and substance. (b) The Borrower also agrees to use, and to cause each of its Subsidiaries to use, all commercially reasonable efforts, including making written requests and follow-up telephone calls, to obtain a Landlord Lien Waiver in or substantially in the form of Exhibit D to the Credit Agreement or in the form of Exhibit H hereto, as the case may be, or otherwise reasonably satisfactory to the Lender in form and substance with respect to each Real Estate Lease (i) which is outstanding on the Merger Closing Date or which is negotiated, completed, renewed or extended by the Borrower or by any of its Subsidiaries at any time or from time to time after the Merger Closing Date, and (ii) the aggregate amount of all of the rental payments required by the terms of which shall exceed $200,000 during any fiscal year of the Borrower. ARTICLE VI PROVISIONS OF GENERAL APPLICATION SECTION 6.1. NO OTHER CHANGES. Except as otherwise expressly provided by this Agreement, all of the terms, conditions and provisions of the Credit Agreement and each of the other Loan Documents, and all rights and remedies of the Lender thereunder, shall remain unaltered. SECTION 6.2. OTHER PROVISIONS. Each of this Agreement and the other Amendment Documents is a Loan Document for all purposes of the Credit Agreement and each of the other Loan Documents. This Agreement and the rights and obligations hereunder of each of the parties hereto shall in all respects be construed in accordance with and governed by the laws of the State of California. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, but all of such counterparts shall together constitute but one and the same agreement. In making proof of this Agreement, it shall not be necessary to produce or account for more than one counterpart hereof signed by each of the parties hereto. SECTION 6.3. TIMELY SATISFACTION OF CONDITIONS PRECEDENT. Except as and to the extent that the Lender shall otherwise from time to time agree in writing with the Borrower, this Agreement shall terminate, and shall have no force or effect whatsoever, unless the 33 -33- conditions precedent set forth in Article III hereof shall have been (a) satisfied in all material respects by the Borrower's close of business on May 5, 2000, or (b) otherwise waived by the Lender in writing. The Obligations of the Borrower under Section 3.17 shall survive termination pursuant to the foregoing sentence, and upon termination of this Agreement in accordance with the foregoing sentence, the Borrower shall pay in full the unpaid balance of the fees and other costs and expenses specified in clause (a) and clause (b) of Section 3.17. [REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK] 34 -34- IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT AGREEMENT to be executed and delivered by their respective authorized officers as of the date first above written. THE BORROWER: ODWALLA, INC. By: ------------------------------------ Name: James R. Steichen Title: Chief Financial Officer THE LENDER: IMPERIAL BANK By: ------------------------------------ Name: Paula J. Barysauskas Title: First Vice President EX-10.3 5 STOCK PURCHASE AGREEMENT 1 Exhibit 10.3 ================================================================================ ODWALLA, INC. STOCK PURCHASE AGREEMENT Dated as of February 11, 2000 ================================================================================ 2 TABLE OF CONTENTS
Page ---- 1. Agreement To Sell And Purchase Stock.................................................1 1.1 Sale and Purchase of Stock....................................................1 1.2 Payment of Purchase Price and Delivery of Certificates........................1 2. Closing Conditions...................................................................2 2.1 Conditions Precedent to the Obligations of the Company........................2 2.2 Conditions Precedent to the Obligations of the Investors......................3 3. Representations and Warranties of the Company........................................4 3.1 Organization; Good Standing; Qualification....................................4 3.2 Capitalization................................................................4 3.3 Subsidiaries..................................................................5 3.4 Authorization.................................................................5 3.5 Valid Issuance of the Stock...................................................6 3.6 Governmental and Third-Party Consents.........................................6 3.7 SEC Filings; Financial Statements.............................................6 3.8 No Changes....................................................................7 3.9 Compliance with Laws..........................................................7 3.10 Compliance with Other Instruments; No Conflict................................7 3.11 Litigation....................................................................8 3.12 Tax Returns and Payments......................................................8 3.13 Finders and Brokers; Fees.....................................................9 3.14 Rights of Registration........................................................9 3.15 Voting Rights.................................................................9 3.16 Labor Relations and Employee Matters..........................................9 3.17 No Other Agreements to Sell the Assets or Capital Stock of the Company......................................................................10 3.18 Private Placement............................................................10 4. Representations and Warranties of the Investors.....................................10 4.1 Authorization................................................................10 4.2 Disclosure of Information....................................................10
i 3 4.3 Status.......................................................................10 4.4 Investment Intent; Certain Restrictions......................................11 4.5 Restricted Securities........................................................11 5. Pre-Closing Covenants of the Company................................................11 5.1 Notification; Updates to Company Disclosure Schedule.........................11 5.2 Best Efforts.................................................................12 6. Pre-Closing Covenants of the Investors..............................................12 6.1 Best Efforts.................................................................12 7. Other Matters.......................................................................12 7.1 Restrictive Legend...........................................................12 7.2 California Securities Laws...................................................12 7.3 Public Disclosure............................................................13 8. Termination.........................................................................13 8.1 Termination Events...........................................................13 8.2 Termination Procedures.......................................................13 8.3 Effect of Termination........................................................14 8.4 Exclusivity of Termination Rights............................................14 9. Miscellaneous.......................................................................14 9.1 Further Assurances...........................................................14 9.2 Fees and Expenses............................................................14 9.3 Attorneys' Fees..............................................................14 9.4 Governing Law; Arbitration...................................................14 9.5 Successors and Assigns.......................................................15 9.6 Entire Agreement.............................................................15 9.7 Separability.................................................................15 9.8 Amendments...................................................................15 9.9 Notices......................................................................15 9.10 Publicity and Use of Confidential Information................................17 9.11 Counterparts.................................................................17 9.12 Delays or Omissions; Waivers.................................................17 9.13 Remedies Cumulative; Specific Performance....................................18
ii 4 9.14 Headings.....................................................................18 9.15 Construction.................................................................18
iii 5 ODWALLA, INC. STOCK PURCHASE AGREEMENT THIS STOCK PURCHASE AGREEMENT (the "Agreement") is entered into as of February 11, 2000, by and among ODWALLA, INC., a California corporation (the "Company"), and the investors on Schedule I attached hereto (each, an "Investor," and collectively, the "Investors"). RECITALS A. The Company, Orange Acquisition Sub, a Maine corporation ("Merger Sub"), Fresh Samantha, Inc., a Maine corporation ("Samantha"), and certain other signatories thereto, have entered into that certain Agreement and Plan of Merger, dated as of February 2, 2000 (the "Merger Agreement"), to effectuate the merger (the "Merger") of Merger Sub with and into Samantha with Samantha as the surviving corporation and wholly owned subsidiary of the Company. B. In connection with the Merger, pursuant to the terms and subject to the conditions of this Agreement, the Investors wish to collectively purchase Six Million Dollars ($6,000,000) of the Common Stock of the Company (the "Common Stock," and such shares to be purchased pursuant to this Agreement, the "Stock"). AGREEMENT The Company and each of the Investors, intending to be legally bound, agree as follows: 1. AGREEMENT TO SELL AND PURCHASE STOCK. 1.1 SALE AND PURCHASE OF STOCK. Upon the terms and subject to the conditions set forth in this Agreement, each Investor agrees, severally and not jointly, to purchase at the Closing (as defined below), and the Company agrees to sell and issue to each Investor at the Closing, the number of shares of Stock set forth next to such Investor's name on Schedule I attached hereto for the purchase price (the "Purchase Price") set forth next to such Investor's name on Schedule I attached hereto. 1.2 PAYMENT OF PURCHASE PRICE AND DELIVERY OF CERTIFICATES. (a) The closing (the "Closing") shall take place at the offices of Morrison & Foerster LLP, 425 Market Street, San Francisco, California 94105, at 10:00 a.m. (Pacific time) on the first business date after the Merger Closing Date (as defined below) or on such other date or at such other place or time as the Company and the Investors may mutually agree (such date is hereinafter referred to as the "Closing Date"). (b) At the Closing: 1 6 (i) each Investor shall (i) pay the Purchase Price to the Company by wire transfer of immediately available funds, and (ii) deliver the documents and agreements required hereunder to be delivered by such Investor at the Closing; and (ii) the Company shall deliver (i) certificates representing the Stock sold to the Investors pursuant to this Agreement, and (ii) the other documents and agreements required hereunder to be delivered by the Company at the Closing. (c) The "Merger Closing Date" shall refer to that date upon which all of the conditions set forth in Sections 4.1 and 4.2 of the Merger Agreement are satisfied or waived. 2. CLOSING CONDITIONS. 2.1 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE COMPANY. The Company's obligation to sell and issue the Stock at the Closing is subject to the satisfaction of the following conditions: (a) the representations and warranties made by the Investors in Section 4 hereof shall be true and accurate in all material respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date; (b) all covenants and agreements contained in this Agreement to be observed by the Investors on or prior to the Closing shall have been performed or complied with in all material respects; (c) each Investor shall have delivered the following documents to the Company: (i) the Shareholders' Rights Agreement, substantially in the form attached hereto as Exhibit A (the "Rights Agreement"), duly executed by each Investor; (ii) a certificate (the "Investor Closing Certificate") of each Investor, dated as of the Closing Date, and certifying to the satisfaction of the conditions specified in Sections 2.1(a) and (b) with respect to such Investor; (d) each of the consents identified or required to be identified in Part 3.6 of the Disclosure Schedule shall have been obtained and shall be in full force and effect; (e) the Merger shall have been consummated pursuant to all of the material terms and conditions contained in the Merger Agreement as of the date of this Agreement, including the conversion of the shares of Preferred Stock (as defined below) held by Catterton (as defined below) into shares of Common Stock; except to the extent (A) (i) any change in the material terms and conditions contained in the Merger Agreement as of the date of this Agreement benefit the Company, or (ii) the waiver or non-satisfaction of a condition contained in the Merger Agreement is for the benefit of the Company, and (B) the Merger is consummated, including the conversion of the shares of Preferred Stock held by Catterton into shares of Common Stock; and 2 7 (f) neither the consummation nor the performance of the transactions contemplated by this Agreement (the "Transactions") will, directly or indirectly (with or without notice or lapse of time), contravene or conflict with or result in a violation of, or cause a material adverse effect on the condition (financial or otherwise), assets, liabilities, obligations, business, properties, prospects or results of operations (a "Material Adverse Effect") of the Company as presently conducted or as proposed to be conducted, together with its subsidiaries taken as a whole, as a result of, specifically, (i) a change in any applicable legal requirement after the date of this Agreement or any federal or state judgment, order, writ, decree, statute or regulation of any court, regulatory body or administrative agency or other governmental body applicable to the Company (an "Order") issued after the date of this Agreement, or (ii) any legal requirement or Order that is proposed after the date of this Agreement by or before any governmental body. 2.2 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE INVESTORS. Each Investor's obligation to purchase the Stock at the Closing is subject to the satisfaction of the following conditions: (a) the representations and warranties made by the Company in Section 3 hereof shall be true and accurate in all material respects as of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date; (b) all covenants and agreements contained in this Agreement to be observed by the Company on or prior to the Closing shall have been performed or complied with in all material respects; (c) the Company shall have delivered the following documents to the Investors: (i) the Rights Agreement, duly executed by the Company; (ii) the legal opinion of Morrison & Foerster, LLP, counsel to the Company, dated the Closing Date, in substantially the form of Exhibit B; (iii) a certificate (the "Company Closing Certificate") executed on behalf of the Company by a senior executive officer of the Company, dated as of the Closing Date, certifying to the satisfaction of the conditions specified in Sections 2.2(a) and (b) with respect to the Company; (d)there shall not have occurred and be continuing any material disruption of, or material adverse change in, the conditions of financial, banking or capital markets; (e)there shall have been no event or circumstance after the date of this Agreement that is reasonably likely to have a Material Adverse Effect on the Company; (f) neither the consummation nor the performance of the Transactions will, directly or indirectly (with or without notice or lapse of time), contravene or conflict with or result in a violation of, or cause a Material Adverse Effect on the Company as a result of, specifically, (i) a change in any applicable legal requirement after the date of this Agreement or 3 8 any Order issued after the date of this Agreement, or (ii) any legal requirement or Order that is proposed after the date of this Agreement by or before any governmental body; and (g)all of the material terms and conditions contained in the Merger Agreement as of the date of this Agreement shall have been complied with or satisfied, as the case may be, by the applicable party thereto; except to the extent (i) any change in the material terms and conditions contained in the Merger Agreement as of the date of this Agreement benefit the Company, or (ii) the waiver or non-satisfaction of a condition contained in the Merger Agreement is for the benefit of the Company. 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Except as specifically set forth in the disclosure schedule provided by the Company and attached hereto as Schedule II (the "Disclosure Schedule"), the parts of which are numbered to correspond to the Section numbers of this Agreement, the Company hereby represents and warrants to the Investors as follows: 3.1 ORGANIZATION; GOOD STANDING; QUALIFICATION. The Company is a corporation duly organized, validly existing, and in good standing under the laws of the State of California, has all requisite corporate power and authority to own and operate its properties and assets, to lease the property or assets it operates as lessee and to carry on its business as described in the Company SEC Reports (as defined in Section 3.7) filed on or prior to the date of this Agreement (the "Existing Company SEC Reports"), to execute and deliver this Agreement, to issue and sell the Stock and to carry out the provisions of this Agreement. The Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which the character of the property owned or leased or the nature of the business transacted by it makes qualification necessary, except where the failure to be so qualified would not have or could not reasonably be expected to have a Material Adverse Effect on the Company. 3.2 CAPITALIZATION. As of January 27, 2000, the authorized capital stock of the Company consisted of (i) 15,000,000 shares of Common Stock, of which: (A) 5,125,761 shares were issued and outstanding, (B) 1,351,865 shares were reserved for issuance upon the exercise of outstanding options under the Company's stock option plans, (C) 106,806 shares were reserved for issuance pursuant to the exercise of the Warrants (as defined below), and (D) 1,265,319 shares were reserved for issuance upon conversion of the Series A Preferred Stock; and (ii) 5,000,000 shares of preferred stock (the "Preferred Stock"), of which 1,265,319 shares had been designated Series A Preferred Stock, of which 1,074,666 shares were issued and outstanding. The outstanding shares of Preferred Stock and Common Stock have been duly authorized and validly issued in compliance with applicable federal and state securities laws, are fully paid and nonassessable, conform to the descriptions thereof in the Existing Company SEC Reports, and were not issued in violation of or subject to (i) any preemptive rights or other rights to subscribe for or to purchase securities or (ii) any liens, preferential rights, priorities, claims, options, charges or other encumbrances or restrictions, other than those created by (A) the Certificate of 4 9 Determination filed in connection with the issuance of the Preferred Stock, (B) the Investors' Rights Agreement (the "Original Rights Agreement"), dated as of January 29, 1999, by and between the Company and Catterton-Simon Partners III, L.P. ("Catterton"), (C) the Warrant dated January 29, 1999 issued to Catterton to purchase 75,000 shares of Common Stock (the "Catterton Warrant"), (D) the Warrant dated February 9, 1999 issued to Hambrecht & Quist LLC to purchase 24,806 shares of Common Stock (the "H&Q Warrant"), and (E) the Warrant dated May 21, 1997 issued to Sand Hill Capital LLC to purchase 7,000 shares of Common Stock (the "Sand Hill Warrant" and collectively with the Catterton Warrant and the H&Q Warrant, the "Warrants"). Except for (i) the rights and conversion of the Preferred Stock, (ii) the options to purchase 1,351,865 shares of Common Stock granted under the Company's stock option plans, (iii) the Warrants, and (iv) the rights granted pursuant to the Original Rights Agreement, there are no outstanding securities convertible into or exchangeable for capital stock of the Company or any options, warrants, rights (including conversion or preemptive rights, rights of first refusal, "tag along" rights, rights of co-sale or any similar right), agreements or contracts for the purchase, subscription to or acquisition of any shares of its capital stock from the Company, or contracts, commitments, agreements, understandings or arrangements of any kind to which the Company or any such holder of capital stock is a party relating to the issuance of any capital stock of the Company, any such convertible or exchangeable securities or any such options, warrants or rights. The issuance of Stock in the Transactions will not result in any adjustment to the number of shares issuable or the purchase price, conversion or exchange rate applicable to any option, warrant, convertible or exchangeable security or similar right of the Company. 3.3 SUBSIDIARIES. Except for the Merger Sub, the Company does not currently own or control, directly or indirectly, any interest in any other corporation, association or other business entity. The Company is not a participant in any joint venture, partnership or similar arrangement. 3.4 AUTHORIZATION. The Company has the requisite corporate power and authority to enter into this Agreement and to perform its obligations hereunder. The execution and delivery of this Agreement and the consummation by the Company of the Transactions have been duly authorized by all necessary corporate action on the part of the Company (other than approval of the Merger by the shareholders of the Company). All corporate action necessary for the authorization, execution and delivery of this Agreement, the performance of all obligations of the Company hereunder at the Closing and the authorization, and issuance of the Stock being issued pursuant to this Agreement has been taken or will be taken prior to the Closing Date. This Agreement constitutes or will constitute as of the Closing Date the valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors' rights generally, and (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies. 5 10 3.5 VALID ISSUANCE OF THE STOCK. The Stock to be issued to the Investors pursuant to this Agreement, when issued and delivered in accordance with the terms of this Agreement for the consideration expressed herein, will be duly and validly issued, fully paid, and nonassessable, and will be free of restrictions on transfer other than restrictions on transfer under this Agreement and the Rights Agreement. 3.6 GOVERNMENTAL AND THIRD-PARTY CONSENTS. No consent, approval, qualification, Order or authorization of, or filing with, any local, state, or federal governmental authority or approval or consent of any third party is required on the part of the Company in connection with the Company's execution, delivery or performance of this Agreement, and the offer, sale or issuance of the Stock, except for (i) the approval by the shareholders of Company of the Merger and related matters, and (ii) the filings and submissions that the Company shall make under the HSR Act in connection with the Merger. 3.7 SEC FILINGS; FINANCIAL STATEMENTS. The Company has timely filed with the Securities and Exchange Commission (the "SEC") and made available to each Investor or its representatives all forms (other than Forms 3, 4 or 5 filed on behalf of Affiliates (as defined below) of the Company), reports and documents required to be filed by the Company with the SEC since January 1, 1997 (collectively, the "Company SEC Reports"). The Company SEC Reports (i) at the time filed, complied with the applicable requirements of the Securities Act of 1933, as amended (the "Securities Act"), and the rules thereunder, and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules thereunder, as the case may be, and (ii) did not at the time they were filed (or if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. To the knowledge of the Company, the SEC has not issued an Order preventing or suspending the use of any Company SEC Report, nor instituted Proceedings for that purpose. The Company meets the eligibility requirements set forth in Section I.A. of the General Instructions for the Use of Form S-3 under the Securities Act. For purposes of this Agreement, "Affiliate" shall mean a Person that directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, the Person specified. Each of the financial statements (including, in each case, any related notes and schedules) contained in the Company SEC Reports, including any such Company SEC Report filed from the date of the Merger Agreement until the earlier of (i) the date on which the Merger Agreement is terminated pursuant to its terms or (ii) the Merger Closing Date (such time period, the "Pre-Closing Period"), complied with the applicable published rules and regulations of the SEC with respect thereto, was prepared in accordance with generally accepted accounting principals in the United States from ("GAAP") applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by Form 10-Q under the Exchange Act) and fairly presented the financial position of the Company at the respective dates and the results of operations and cash 6 11 flows of the Company for the periods indicated, and all adjustments necessary for a fair presentation of results for such periods have been made, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments which were not or are not expected to be material in amount. 3.8 NO CHANGES. Since August 28, 1999: (a)there has not been any change in the business, assets, liabilities, financial condition, prospects or operating results of the Company, from that reflected in the Company's financial statements contained in the Company's Annual Report on Form 10-K for the fiscal year ended August 28, 1999, except changes in the ordinary course of business that individually or collectively have not had a Material Adverse Effect on the Company; (b)there has not been any damage, destruction or loss, whether or not covered by insurance having a Material Adverse Effect on the Company; (c)other than the Merger, the Company has not entered into any material transaction (other than the Transactions) not referred to in the Existing Company SEC Reports; and (d)the Company has no liabilities except for liabilities reflected in the Existing Company SEC Reports or incurred in the ordinary course of business consistent with past practices. 3.9 COMPLIANCE WITH LAWS. The Company now holds all licenses, certificates, permits, franchises or other governmental authorization, registration, acceptance or approval from state, federal and other regulatory authorities that are necessary for the conduct of its business ("Governmental authorizations"), other than where the failure to hold such Governmental Authorization is not reasonably likely to have a Material Adverse Effect on the Company. Other than as set forth in the Existing Company SEC Reports, the Company has complied with, is not in violation of and has not received any notices of violation or noncompliance and, to the knowledge of the Company, has no reason to believe that any presently existing circumstances would result in any violation with respect to, any federal, state or local statute, law, ordinance, governmental rule or regulation or court decree to which the Company may be subject, including any environmental laws, nor has the Company failed to obtain any Governmental Authorization necessary to the ownership, leasing or operation of its property or to the conduct of its business as it is presently being carried on and as described in the Existing Company SEC Reports, except for such noncompliance, violations or failures to obtain such Governmental Authorization as would not have a Material Adverse Effect on the Company. 3.10 COMPLIANCE WITH OTHER INSTRUMENTS; NO CONFLICT. The Company is not in violation of any provision of its Articles of Incorporation or Bylaws or in default of the performance or observance of or breach under or with respect to any 7 12 provision of any obligation, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any mortgage, indenture, deed of trust, lease of real or personal property, undertaking, agreement, instrument, contract, joint venture or other agreement or instrument to which it is a party or by which it or any of its property is bound (a "Company Contract") or, to its knowledge, of any federal or state Order, except for such violations, defaults or breaches as would not have a Material Adverse Effect on the Company. The Company has not received notice that any party to any such Company Contract intends to cancel, amend or terminate any such agreement, except where such cancellations, amendments or terminations would not have a Material Adverse Effect on the Company. The execution, delivery and performance by the Company of this Agreement, the consummation of the Transactions and the fulfillment of the terms hereof does not and will not (i) violate, conflict with or contravene the terms of the Articles of Incorporation or the Bylaws of the Company, or any amendment thereof; (ii) violate, conflict with or result in any material breach or contravention or constitute a default under (a) any Company Contract or (b) any Order or (iii) constitute, with or without the passage of time or giving of notice, an event that results in the creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, impairment, forfeiture, or nonrenewal of any permit, license, authorization, or approval applicable to the Company, its business or operations, or any of its assets or properties, except for such violations, conflicts, defaults, breaches or similar consequences as would not have a Material Adverse Effect on the Company. 3.11 LITIGATION. Other than as disclosed in the Existing Company SEC Reports, there is no private or governmental action, suit, proceeding, claim, arbitration or investigation (each, a "Proceeding") pending or, to the knowledge of the Company, threatened against the Company or any of its properties before any agency, court or tribunal, foreign or domestic (A) affecting the Transactions or (B) which, if determined adversely to the Company, would have a Material Adverse Effect on the Company. The Company is not a party, subject to the provisions of, or in default with respect to, any Order, and there are no unsatisfied judgments against the Company. The Company has made available to the Investors accurate and complete copies of all pleadings, correspondence and other written materials to which the Company has access that relate to Proceedings (i) to which the Company is currently a party or (ii) which have been threatened in writing. 3.12 TAX RETURNS AND PAYMENTS. The Company has timely filed all tax returns as required by law. These tax returns are true, complete and correct in all material respects. The Company has paid all taxes for all taxable periods ended on or prior to the Closing Date, except where the failure to make such payment would not have a Material Adverse Effect on the Company. The Company has not been advised (a) that any of its returns, federal, state or other, have been or are being audited as of the date hereof or (b) of any deficiency in assessment or proposed judgment to its state or other taxes. The Company is not aware of any tax liability to be imposed upon its properties or assets as of the date of this Agreement that would have a Material Adverse Effect upon the Company. There are no matters under discussion with any governmental authorities with respect 8 13 to taxes that in the reasonable judgment of the Company are likely to result in a material additional liability to the Company for taxes. 3.13 FINDERS AND BROKERS; FEES. (a) Neither the Company nor any person acting on behalf of the Company has engaged any finder, broker, intermediary or any similar person in connection with the Transactions. (b) The Company has not entered into a contract or other agreement that provides that a fee shall be paid to any Person if the Transactions are consummated. Notwithstanding the foregoing, the Company has engaged W.R. Hambrecht & Co., LLC ("WRH") to act as its financial advisor in connection with the Merger pursuant to that certain Engagement Letter between the Company and WRH dated December 17, 1999 and is obligated to pay WRH for certain fees and expenses as disclosed on Part 3.13 of the Disclosure Schedule. 3.14 RIGHTS OF REGISTRATION. Except as set forth in the Original Rights Agreement or as contemplated in the Rights Agreement, the Company has not granted or agreed to grant any registration rights, including piggyback rights, or other material rights to any person or entity, (i) the provision or performance of which would render the provision or performance (including the issuance of the Company Stock) of the material rights to be granted to the Investors by the Company in this Agreement, impracticable or (ii) for or relating to the registration of any shares of capital stock of the Company that are currently outstanding. 3.15 VOTING RIGHTS. Except as set forth in the Original Rights Agreement, as contemplated in the Rights Agreement or as contemplated by the Voting Agreement to be entered into by Catterton and the Chief Executive Officer of the Company, neither the Company, nor to the Company's knowledge, the shareholders of the Company, has or have, as the case may be, entered into any agreement with respect to the voting of capital shares of the Company for the election of Directors of the Company or otherwise. 3.16 LABOR RELATIONS AND EMPLOYEE MATTERS. (a) The Company is not engaged in any unfair labor practice. There is (i) no unfair labor practice complaint pending or, to the knowledge of the Company, threatened against the Company before the National Labor Relations Board, and no grievance or arbitration proceeding arising out of or under collective bargaining agreements is so pending or, to the knowledge of the Company, threatened against the Company, (ii) no strike, labor dispute, slowdown or stoppage pending or, to the knowledge of the Company, threatened against the Company, and (iii) no union representation question existing with respect to the employees of the Company and, to the knowledge of the Company, no union organizing activities are taking place. 9 14 (b) Except as disclosed in the Existing Company SEC Reports, the Company is not a party to any employment agreement (other than "at will" employment relationships), collective bargaining agreement or covenant not to compete, nor has the Company ever been party to any collective bargaining agreement. 3.17 NO OTHER AGREEMENTS TO SELL THE ASSETS OR CAPITAL STOCK OF THE COMPANY. The Company does not have any legal obligation, absolute or contingent, other than the obligations of the Company under this Agreement or the Merger Agreement, to any person or firm to (i) sell assets other than in the ordinary course of business consistent with past practices, (ii) sell any capital stock of the Company or effect any merger, consolidation or other reorganization of the Company or (iii) enter into any agreement with respect to any of the foregoing. 3.18 PRIVATE PLACEMENT. The offer, sale and issuance of the Stock as contemplated by this Agreement is exempt from the registration requirements of the Securities Act and state securities "blue sky" laws, and neither the Company nor any authorized agent acting on its behalf will take any action hereafter that would cause the loss of such exemptions. 4. REPRESENTATIONS AND WARRANTIES OF THE INVESTORS. Each Investor, severally and not jointly, hereby represents and warrants to the Company that: 4.1 AUTHORIZATION. Each Investor has full power and authority to enter into this Agreement, and each of the Agreement and the Rights Agreement constitutes, or will constitute, the valid and legally binding obligation of each Investor, enforceable against each Investor in accordance with its respective terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors' rights generally, and (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies. 4.2 DISCLOSURE OF INFORMATION. Each Investor further represents that it has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of the Stock and the business, properties, prospects and financial condition of the Company. 4.3 STATUS. (a) Each Investor is an "accredited investor" as that term is defined in Rule 501(a) of Regulation D of the Securities Act. 10 15 (b) Each Investor, by reason of its business and financial experience has such knowledge, sophistication and experience in financial and business matters and in making investment decisions of this type that it is capable of (i) evaluating the merits and risks of an investment in the Stock and making an informed investment decision, (ii) protecting its own interest, and (iii) bearing the economic risk of such investment for an indefinite period of time. 4.4 INVESTMENT INTENT; CERTAIN RESTRICTIONS. (a) Each Investor is acquiring the Stock for investment for its own account, not as a nominee or agent and not with the view to, or any intention of, a resale or distribution thereof, in whole or in part, or the grant of any participation therein. Each Investor understands that the Stock has not been, and will not be, registered under the Securities Act or state securities laws by reason of specific exemptions from the registration provisions of the Securities Act and applicable state securities laws that depend upon, among other things, the bona fide nature of each Investor's investment intent and the accuracy of each Investor's representations as set forth in this Section 4. Each Investor has not been formed for the specific purpose of acquiring the Stock. Each Investor further understands that, other than pursuant to the Rights Agreement, the Company shall have no obligation to register the Stock under the Securities Act or any state securities laws or to take any action that would make available any exemption from the registration requirements of such laws. Each Investor hereby acknowledges that because of the restrictions on transfer and assignment of the Stock, each Investor may have to bear the economic risk of the investment in the Stock for an indefinite period of time. (b) Each Investor will observe and comply with the Securities Act and the rules and regulations promulgated thereunder, as now in effect and as from time to time amended, in connection with any offer, sale, pledge, transfer or other disposition of the Stock, including the conditions set forth in Section 5.28(m) of the Merger Agreement. 4.5 RESTRICTED SECURITIES. Each Investor understands that the shares of Stock it is purchasing are characterized as "restricted securities" under the federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the Securities Act only in certain limited circumstances. In this connection, each Investor represents that it is familiar with Rule 144, as presently in effect, and understands the resale limitations imposed hereby and by the Securities Act. 5. PRE-CLOSING COVENANTS OF THE COMPANY. 5.1 NOTIFICATION; UPDATES TO COMPANY DISCLOSURE SCHEDULE. During the Pre-Closing Period, the Company shall promptly notify the Investors in writing of: (a) the discovery by the Company of any event, condition, fact or circumstance that constitutes a material breach of any representation or warranty made by the Company in this Agreement; and 11 16 (b) any event, condition, fact or circumstance that would make the timely satisfaction of any of the conditions set forth in Section 2.2 impossible or unlikely. 5.2 BEST EFFORTS. During the Pre-Closing Period, the Company shall use its commercial best efforts to cause the conditions set forth in Section 2.2 to be satisfied on a timely basis, and shall not take any action or omit to take any action, the taking or omission of which would or could reasonably be expected to result in any of the conditions to Closing set forth in Section 2.2 not being satisfied. 6. PRE-CLOSING COVENANTS OF THE INVESTORS. 6.1 BEST EFFORTS. During the Pre-Closing Period, each Investor shall use its commercial best efforts to cause the conditions set forth in Section 2.1 to be satisfied on a timely basis, and shall not take any action or omit to take any action, the taking or omission of which would or could reasonably be expected to result in any of conditions to Closing set forth in Section 2.1 not being satisfied. 7. OTHER MATTERS. 7.1 RESTRICTIVE LEGEND. All certificates representing the Stock deliverable to each Investor pursuant to this Agreement, and any certificates subsequently issued with respect thereto or in substitution therefor, shall bear the following legend: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS PURSUANT TO THE TERMS specified in thAT certain Stock Purchase Agreement, DATED AS OF February 11, 2000, and SHAREHOLDERS' rights agreement, dated as of MAy 2, 2000. copIES of such Agreements may be obtained froM ODWALLA, INC. without charge, by the holder of this certificate upon written request therefor. The Company, in its sole discretion, may cause a stop transfer order to be placed with its transfer agent(s) on any certificate representing the Stock at any time and from time to time. 7.2 CALIFORNIA SECURITIES LAWS. THE SALE OF THE SECURITIES THAT ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH 12 17 SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION FOR SUCH SECURITIES PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT FROM QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO EXEMPT. 7.3 PUBLIC DISCLOSURE. Unless otherwise required by law (including securities laws) or, as to the Company, by the rules and regulations of the National Association of Securities Dealers ("NASD"), prior to the Merger Closing Date, no disclosure (whether or not in response to an inquiry) of the subject matter of this Agreement or the Merger shall be made by any party hereto unless approved in writing by the Company prior to release (which approval shall not be unreasonably withheld); provided, that the parties agree and understand that certain disclosures regarding the Transactions may be made to (i) employees of the Company, (ii) third parties whose consent or approval may be required in connection with the Transactions, and (iii) the professional advisors of the Company and/or the Investors, in each case without any prior written consent. 8. TERMINATION. 8.1 TERMINATION EVENTS. This Agreement may be terminated prior to Closing: (a) by the Investors if there is a material breach or inaccuracy in any representation, warranty, covenant or obligation of the Company after the date of this Agreement and prior to the Closing and such breach or inaccuracy has not been cured within ten (10) business days after written notice of such breach is given to the Company; (b) by the Company if there is a material breach or inaccuracy in any representation, warranty, covenant or obligation of the Investors after the date of this Agreement and prior to the Closing and such breach or inaccuracy has not been cured within ten (10) business days after written notice of such breach is given to the Investors; (c) by either the Company or the Investors if the Closing has not taken place on or before September 30, 2000; or (d) by the mutual consent of the Investors and the Company. 8.2 TERMINATION PROCEDURES. If the Investors wish to terminate this Agreement pursuant to Section 8.1(a), the Investors shall deliver to the Company a written notice stating that the Investors are terminating this Agreement and setting forth a brief description of the basis on which the Investors are terminating this Agreement. If the Company wishes to terminate this Agreement pursuant to Section 8.1(b), the Company shall deliver to the Investors a written notice stating that the 13 18 Company is terminating this Agreement and setting forth a brief description of the basis on which the Company is terminating this Agreement. 8.3 EFFECT OF TERMINATION. If this Agreement is terminated pursuant to Section 8.1, all further obligations of the parties under this Agreement shall terminate; provided, that each party shall remain liable for any breaches of this Agreement prior to its termination and provided, further, that Sections 7.3, 9.2, 9.3 and 9.10 shall survive the termination of this Agreement. 8.4 EXCLUSIVITY OF TERMINATION RIGHTS. Except to the extent termination occurs due to the bad faith of the other party, the termination rights and obligations provided in this Section 8 shall be deemed to be exclusive. Subject to the provisions of Section 8.3, the parties shall not have any other or further Liabilities to or with respect to one another by reason of this Agreement or its termination. 9. MISCELLANEOUS. 9.1 FURTHER ASSURANCES. Each party hereto shall execute and/or cause to be delivered to each other party hereto such instruments and other documents, and shall take such other actions, as such other party may reasonably request (prior to, at or after the Closing) for the purpose of carrying out or evidencing any of the Transactions. 9.2 FEES AND EXPENSES. Each party to this Agreement shall bear and pay its own costs and expenses with respect to the negotiation, execution, delivery and performance of this Agreement. 9.3 ATTORNEYS' FEES. If any legal action or other legal Proceeding (including arbitration) relating to the Transactions or the enforcement of any provision of any of the Transactional Agreements is brought against any party hereto, the Person presiding over such action or other Proceeding may award reasonable attorneys' fees, costs and disbursements to the prevailing party (in addition to any other relief to which the prevailing party may be entitled). 9.4 GOVERNING LAW; ARBITRATION. (a) This Agreement is to be construed in accordance with and governed by the laws of the State of California (as permitted by Section 1646.5 of the California Civil Code or any similar successor provision), without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the State of California to the rights and duties of the parties. 14 19 (b) Any controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its then existing Commercial Arbitration rules and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator shall be appointed by mutual agreement of the Company and the Investor(s) involved in such controversy or claim, but, if the Company and such Investor(s) fail to agree, the arbitrator shall be appointed by the American Arbitration Association in accordance with its then existing rules. The place of the arbitration shall be San Francisco, California and the governing law shall be the laws of the State of California in accordance with Section 9.4(a) of this Agreement. 9.5 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto and shall inure to the benefit of and be enforceable by each person who shall be a holder of the Stock from time to time. None of the parties hereto may assign any of its or their rights or obligations hereunder to any other party (by contract, operation of law or otherwise) without the prior written consent of the other, which consent shall not be unreasonably withheld, and any attempted assignment in violation thereof shall be void and of no effect. 9.6 ENTIRE AGREEMENT. This Agreement, the Schedules and the Exhibits hereto, the Rights Agreement and the other documents contemplated expressly hereby and thereby constitute the full and entire understanding and agreement among the parties thereto with regard to the subjects hereof and thereof and supersede all prior agreements and understandings among or between any of the parties relating to the subject matter hereof and thereof. 9.7 SEPARABILITY. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, unless such provision is material to the terms of this Agreement, in which case the Company and the Investors shall in good faith agree upon such amendments as are necessary to restore the original intent and arrangement between the parties. 9.8 AMENDMENTS. This Agreement may be amended or modified only upon the written consent of the Company and the Investors. Any amendment or modification effected pursuant to this Section 9.8 shall be binding upon the Company and the Investors. 9.9 NOTICES. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in writing and shall be deemed properly delivered and given (a) on the date delivered or given, when delivered or given by hand or by telecopier during business 15 20 hours, (b) one business day after being delivered or given by courier or next-day express delivery service, or (c) two business days after being delivered or give by registered mail to the address set forth beneath the name of such party below (or to such other address or telecopier number as such party shall have specified in a written notice given to the other parties hereto): if to the Company: Odwalla, Inc. 120 Stone Pine Road Half Moon Bay, CA 94019 Attention: D. Stephen C. Williamson Telecopier: (650) 712-5967 with a copy to: Morrison & Foerster LLP 425 Market Street San Francisco, California 94105 Attention: Robert Townsend, Esq. Telecopier: (415) 268-7522 if to U.S. Equity Partners LP: c/o Wasserstein Perella & Co., Inc. 1999 Avenue of the Stars, Suite 2950 Los Angeles, California 90067 Attention: Ellis B. Jones Telecopier: (310) 286-7270 with copies to: Skadden, Arps, et. al. 300 South Grand Avenue Suite 3400 Los Angeles, California 90071 Attention: Brian J. McCarthy Telecopier: (213) 687-5600 if to Catterton-Simon Partners: Greenwich Office Park Greenwich, Connecticut 06830 Attention: Craig Sakin Telecopier: (203) 629-4903 16 21 with copies to: Morgan, Lewis & Bockius LLP 101 Park Avenue New York, NY 10178-0060 Attention: Philip H. Werner Telecopier: (212) 309-6273 9.10 PUBLICITY AND USE OF CONFIDENTIAL INFORMATION. (a) Notwithstanding anything to the contrary contained in any agreement among the parties hereto, the Company shall have the right to disclose the information provided to the Company by the Investors (including the terms of this Agreement) through the use of printed offering materials or otherwise or as otherwise required by applicable legal requirements, in connection with the preparation of a proxy statement (the "Proxy Statement") in connection with the solicitation by the Board of Directors of the Company of the affirmative vote of a majority of the outstanding Common Stock and Preferred Stock to approve the Merger and related matters. (b) The Company, on the one hand, and the Investors, on the other hand, shall keep strictly confidential, and shall not use, or disclose to any other Person, any non-public document or other information in the Company's possession, on the one hand, and in each Investor's possession, on the other hand, that relates directly or indirectly to the business of the Company or any Affiliate of the Company, on the one hand, or the Investor or any Affiliate of the Purchaser, on the other hand; provided, however, that the Company and the Investors may disclose such non-public information as required by any applicable law or rule to which the Company or Investors are subject, including the Exchange Act and the rules of the NASD. (c) Except as set forth in Section 7.3, neither the Investors, on the one hand, nor the Company, on the other hand, shall issue or disseminate any press release or other publicity concerning any of the Transactions, or permit any press release or other publicity concerning any of the Transactions to be issued or otherwise disseminated on its behalf without the prior written consent of the Investors, in the case of the Company, or the Company, in the case of the Investors; provided, however, that the Company and Investors may disclose or disseminate such information as required by any applicable law or rule to which the Company or the Investors are subject, including the Exchange Act and the rules of the NASD. 9.11 COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. 9.12 DELAYS OR OMISSIONS; WAIVERS. (a) No failure on the part of any Person to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any Person in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise or waiver of any such power, right, 17 22 privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. (b) No Person shall be deemed to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such Person; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given. 9.13 REMEDIES CUMULATIVE; SPECIFIC PERFORMANCE. (a) All remedies, either under this Agreement or by law or otherwise afforded to the parties hereto, shall be cumulative and not alternative. (b) Each of the parties hereto agrees that if the conditions to such party's obligation to consummate the Transactions have been satisfied as set forth in Sections 2.1 or 2.2, as the case may be, and such party nonetheless refuses to consummate the Transactions, then the other party shall be entitled (in addition to any other remedy that may be available to it) to (i) a decree or order of specific performance or mandamus to enforce the observance and performance of such obligation to consummate the Transactions, and (ii) an injunction restraining such non-performance. 9.14 HEADINGS. The headings contained in this Agreement are for convenience of reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement. 9.15 CONSTRUCTION. (a) For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include the masculine and feminine genders. (b) The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement. (c) As used in this Agreement, the words "include" and "including," and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words "without limitation." (d) Except as otherwise specified, all references in this Agreement to "Sections," "Exhibits" and "Schedules" are intended to refer to Sections of this Agreement and Exhibits and Schedules to this Agreement. 18 23 IN WITNESS WHEREOF, the parties hereto have executed this STOCK PURCHASE AGREEMENT as of the date set forth in the first paragraph hereof. COMPANY: ODWALLA, INC., a California corporation By:________________________________________ Name: D. Stephen C. Williamson Title: Chief Executive Officer INVESTOR: U.S. EQUITY PARTNERS, L.P., a Delaware limited partnership By:________________________________________ Name: Ellis B. Jones Title: Managing Director INVESTOR: CATTERTON-SIMON PARTNERS III, L.P., a Delaware limited partnership By:________________________________________ Name: Craig Sakin Title: Authorized Person 19 24 INDEX OF SCHEDULES AND EXHIBITS Schedule I Schedule of Investors Schedule II Disclosure Schedule Exhibit A Rights Agreement Exhibit B Form of Opinion of Company Counsel 20 25 STOCK PURCHASE AGREEMENT SCHEDULE I SCHEDULE OF INVESTORS
INVESTOR NUMBER OF SHARES OF STOCK PURCHASE PRICE U.S. Equity Partners, L.P. 800,641 $5,000,000 Catterton-Simon 160,128 $1,000,000 Partners III, L.P.
21 26 STOCK PURCHASE AGREEMENT SCHEDULE II DISCLOSURE SCHEDULE 22 EX-10.4 6 AMENDMENT NO.1 TO STOCK PURCHASE AGREEMENT 1 EXHIBIT 10.4 AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT Reference is made to that certain Stock Purchase Agreement, dated as of February 11, 2000 (the "Agreement"), by and among Odwalla, Inc., a California corporation (the "Company"), and U.S. Equity Partners, L.P., a Delaware limited partnership, and Catterton-Simon Partners, L.P., a Delaware limited partnership (each, an "Investor" and collectively, the "Investors"). RECITAL A. Pursuant to the terms and conditions of the Agreement, the Company has agreed to issue to the Investors, and the Investors have collectively agreed to purchase from the Company, nine hundred sixty thousand seven hundred sixty nine (960,769) shares of the Common Stock of the Company. B. Pursuant to Section 9.8 of the Agreement, the Agreement may only be amended with the consent of the Company and the Investors, and it is the intent of the Company and the Investors to amend the Agreement as set forth in this Amendment No. 1. AGREEMENT The Company and the Investors, intending to be legally bound, hereby amend the Agreement as follows: 1. SECTION 2.2 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE INVESTORS. Section 2.2(g) of the Agreement shall be amended and restated in its entirety to read as follows: all of the material terms and conditions contained in the Merger Agreement as of the date of this Agreement shall have been complied with or satisfied, as the case may be, by the applicable party thereto; except, with the consent of each Investor, as the case may be (such consent not to be unreasonably withheld), to the extent (i) any change in the material terms and conditions contained in the Merger Agreement as of the date of this Agreement benefit the Company, or (ii) the waiver or non-satisfaction of a condition contained in the Merger Agreement is for the benefit of the Company. 1 2 2. SECTION 9.2 FEES AND EXPENSES. Section 9.2 of the Agreement shall be amended and restated in its entirety to read as follows: The Company shall bear and pay the reasonable costs and expenses with respect to the negotiation, execution and delivery of this Agreement and in connection with the Transactions. 3. SECTION 9.9 NOTICES. Section 9.9 of the Agreement shall be amended to include the following: if to BancBoston Investments, Inc.: BancBoston Investments Inc. 175 Federal Street, 10th Floor Boston, Massachusetts 02110 Attention: Mark H. DeBlois Telecopier: (617) 434-1153 with a copy to: Bingham Dana LLP 150 Federal Street Boston, Massachusetts 02110 Attention: Robert M. Wolf, Esq. Telecopier: (617) 951-8736 [The remainder of this page intentionally left blank] 2 3 4. SCHEDULE 1 SCHEDULE OF INVESTORS Schedule 1 shall be amended and restated in its entirety to read as follows:
INVESTOR NUMBER OF SHARES OF STOCK PURCHASE PRICE U.S. Equity Partners, L.P. 601,667 $3,757,410 U.S. Equity Partners 162,945 $1,017,590 (Offshore), L.P. Catterton Simon Partners, 160,128 $1,000,000 L.P. BancBoston Investments, Inc. 36,029 $225,000 TOTAL: 960,769 $6,000,000
5. GENERAL. By executing this Amendment No. 1, each of U.S. Equity Partners (Offshore), L.P., a Cayman Islands limited partnership, and BancBoston Investments, Inc., a Massachusetts corporation, agree to become a party to and be bound by the terms of the Agreement, as amended by this Amendment No. 1. The terms of this Amendment No. 1 shall prevail over any conflicting provisions of the Agreement, but both instruments shall otherwise be constituted and interpreted as a single integrated agreement. The Agreement remains in full force and effect, in accordance with its terms as amended hereby. This Amendment No. 1 may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. 3 4 IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO. 1 as of April 25, 2000. COMPANY: ODWALLA, INC., a California corporation By:___________________________________ Name: D. Stephen C. Williamson Title: Chief Executive Officer INVESTOR: U.S. EQUITY PARTNERS, L.P., a Delaware limited partnership By:___________________________________ Name: Ellis B. Jones Title: Managing Director INVESTOR: U.S. EQUITY PARTNERS (OFFSHORE), L.P., a Cayman Islands limited partnership By:___________________________________ Name: Title: 4 5 INVESTOR: CATTERTON-SIMON PARTNERS III, L.P., a Delaware limited partnership By:___________________________________ Name: Craig Sakin Title: Authorized Person INVESTOR BANCBOSTON INVESTMENTS, INC., a Massachusetts corporation By:___________________________________ Name: Title: 5 EX-10.5 7 SHAREHOLDERS' RIGHTS AGREEMENT 1 EXHIBIT 10.5 ODWALLA, INC. SHAREHOLDERS' RIGHTS AGREEMENT MAY 2, 2000 2 TABLE OF CONTENTS
PAGES 1. GENERAL .............................................................................2 1.1 Definitions...................................................................2 2. REGISTRATION.........................................................................4 2.1 Demand Registrations..........................................................4 2.2 Company Registration..........................................................5 2.3 Additional Procedures in Connection with Underwritten Offerings; Lockups; Cutbacks..................................................6 2.4 Expenses of Registration......................................................7 2.5 Obligations of the Company....................................................8 2.6 Termination of Registration Rights............................................9 2.7 Company Lockup...............................................................10 2.8 Indemnification..............................................................10 2.9 Assignment of Registration Rights............................................12 2.10 Participation by Shareholders................................................12 2.11 Reports Under Securities Exchange Act of 1934................................13 3. RIGHT OF FIRST OFFER; CO-SALE RIGHTS................................................13 3.1 Notice of Intended Disposition...............................................13 3.2 Exercise of Right by the Company.............................................14 3.3 Non-Exercise of Right of First Refusal.......................................14 3.4 Closing of Sale of Target Shares.............................................14 3.5 Assignment...................................................................15 3.6 Co-Sale Rights in Sales by a Transferring Shareholder........................15 3.7 Exempt Transfers.............................................................16 3.8 Termination..................................................................16 4. VOTING AGREEMENT....................................................................16 4.1 Election of Members of the Board of Directors................................16 4.2 Termination of Voting Agreement..............................................17 5. OTHER AGREEMENTS....................................................................17 5.1 Information Rights...........................................................17 5.2 Restrictive Legend...........................................................18 5.3 Shareholder Lockup...........................................................18 5.4 Standstill...................................................................18 6. MISCELLANEOUS.......................................................................20
i 3 6.1 LLC Shares...................................................................20 6.2 Amendment of LLC Agreement...................................................20 6.3 Governing Law................................................................20 6.4 Termination of Existing Rights Agreement.....................................20 6.5 Successors and Assigns.......................................................20 6.6 Severability.................................................................20 6.7 Amendment and Waiver.........................................................20 6.8 Delays or Omissions..........................................................21 6.9 Notices......................................................................21 6.10 Attorneys' Fees..............................................................21 6.11 Titles and Subtitles.........................................................21 6.12 Counterparts.................................................................22 6.13 Construction.................................................................22 6.14 Entire Agreement.............................................................22
ii 4 ODWALLA, INC. SHAREHOLDERS' RIGHTS AGREEMENT This SHAREHOLDERS' Rights Agreement (this "Agreement") is entered into as of May 2, 2000, by and among Odwalla, Inc., a California corporation (the "Company"), Samantha Investors, LLC, a Massachusetts limited liability company, and those shareholders of the Company and other Persons listed on Schedule 1 hereto (together with these permitted successors and assigns hereunder, collectively the "Shareholders"). RECITALS A. The Company previously entered into that certain Investors' Rights Agreement, dated as of January 29, 1999, with Catterton-Simon Partners III, L.P. ("Catterton") in connection with the acquisition by Catterton of certain shares of Series A Preferred Stock of the Company (the "Existing Rights Agreement"). On or before the date hereof, Catterton has converted such shares of Series A Preferred Stock together with those additional shares of Series A Preferred Stock Catterton received from the Company on June 30, 1999 and December 31, 1999 as a stock dividend into Common Stock of the Company. The Company and Catterton wish to have this Agreement supersede and terminate the Existing Rights Agreement. B. The Company, Orange Acquisition Sub, a Maine corporation ("Merger Sub"), and Fresh Samantha, Inc., a Maine corporation ("Samantha"), have entered into that certain Agreement and Plan of Merger, dated as of February 2, 2000 (the "Merger Agreement"), to effectuate the merger (the "Merger") of Merger Sub with and into Samantha with Samantha as the surviving corporation and wholly-owned subsidiary of the Company. C. Upon consummation of the Merger, the Shareholders identified as "Samantha Shareholders" on Schedule 1 attached hereto will exchange certificates formerly representing shares of the capital stock of Samantha for shares of the Common Stock of the Company. D. Concurrent with the Closing of the Merger, the Company expects to consummate a transaction pursuant to which it will issue and sell up to Six Million Dollars ($6,000,000) of Common Stock to WP and Catterton. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises, representations, warranties, covenants and conditions set forth in this Agreement, the parties mutually agree as follows: 1 5 1. GENERAL 1.1 DEFINITIONS. In addition to those terms otherwise defined herein, as used in this Agreement, the following terms shall have the following respective meanings: "ACQUISITION PROPOSAL" shall mean (a) a bona fide, written proposal, which proposal includes all material terms of a proposed transaction, received by the Board of Directors of the Company from any person or Group (as such term is defined in Section 13(d)(3) of the Exchange Act) proposing to enter into a transaction with the Company or the Company's shareholders which, if effected, result in such person or group acquiring more than 50% of the voting securities of the Company, (b) a tender offer or exchange offer seeking to acquire 50% or more of the outstanding shares of voting securities of the Company or (c) a public announcement of the commencement of a bona fide proxy or consent solicitation subject to Section 14 of the Exchange Act to remove a majority of the Board of Directors. "AFFILIATE" shall mean a person or entity that directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified. "BAIN SHAREHOLDERS" shall mean, collectively, Bain Capital Fund VI, L.P. and its Affiliates. "CLOSING" shall have the meaning given such term in the Merger Agreement. "COMMON STOCK" shall mean the common stock of the Company. "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended and any successor rule or regulation thereto, and in the case of any referenced section of such rule, any successor section thereto, collectively and as from time to time amended and in effect. "HOLDER" means any person owning or having the right to acquire Registrable Securities or any assignee thereof. "LLC" means Samantha Investors, LLC, a Massachusetts limited liability company. "MAJORITY PARTICIPATING HOLDERS" means, with respect to any registration of Registrable Securities, the holder or holders at the relevant time of at least a majority of the Registrable Securities to be included in the registration statement in question. "NASD" shall mean the National Association of Securities Dealers, Inc. (or its successor). "PERMITTED TRANSFEREE" shall mean, as to any Shareholder, (a) any Affiliate, partner, retired partner, member, retired member, or other holder of equity interests of such Shareholder and (b) any family member of such Shareholder or any domestic partner of such Shareholder or 2 6 any trust, partnership, limited liability company, custodianship or fiduciary account for the benefit of a Shareholder and/or members of his or her family or his or her domestic partner. "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 effectiveness of such registration statement or document. "REGISTRABLE SECURITIES" means (i) the Stock, (ii) any Common Stock issued as (or issuable upon the conversion or exercise of any preferred stock warrant, right or other security which is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of, or pursuant to a stock split, combination of shares, recapitalization, merger, consolidation, reorganization or otherwise with respect to the Stock, and (iii) any Common Stock issued upon exercise of the Warrant. Notwithstanding the foregoing, Registrable Securities shall not include any securities either sold by a person to the public pursuant to a registration statement or Rule 144 under the Securities Act or sold in a private transaction in which the transferor's rights under Section 2 of this Agreement are not assigned. The number of shares of "REGISTRABLE SECURITIES THEN OUTSTANDING" shall be determined by calculating the number of shares of Common Stock outstanding which are, and the number of shares of Common Stock issuable pursuant to then exercisable or convertible securities, including the Warrant, which are, Registrable Securities. "REGISTRATION EXPENSES" shall mean all expenses incurred by the Company in complying with Section 2.1 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 Shareholders, blue sky fees and expenses and the expense of any special audits incident to or required by any such registration. "SECURITIES ACT" shall mean the Securities Act of 1933, as amended, and any successor rule or regulation thereto, and in the case of any referenced section of such rule, any successor section thereto, collectively and as from time to time amended and in effect. "STOCK" shall refer to the shares of Common Stock held by the Shareholders. "TAG ALONG SELLER" shall have the meaning given such term in Section 3.6 of this Agreement. "WARRANT" shall refer to that warrant held by Catterton-Simon Partners III, L.P. to purchase shares of Common Stock dated as of January 29, 1999. "WP" shall mean U.S. Equity Partners, L.P., a Delaware limited partnership, U.S. Equity Partners (Offshore), L.P., a Cayman Islands limited partnership, and BancBoston Investments, Inc., a Massachusetts corporation. Any capitalized terms not defined herein shall have the meanings given them in the Merger Agreement. 3 7 2. REGISTRATION 2.1 DEMAND REGISTRATIONS. (a) REGISTRATION ON FORM S-3. From time to time after the first anniversary of the date of this Agreement, a Holder or Holders may request in writing that the Company effect the registration on Form S-3 of Registrable Shares, provided that the gross proceeds of the offering to which such request applies are expected to be at least $1,000,000. If the Holder or Holders initiating such registration intend to distribute the Registrable Securities in an underwritten offering, they shall so state in their request. Promptly after receipt of such notice, the Company will give written notice of such requested registration to all other Holders of Registrable Securities. The Company will then use its commercially reasonable best efforts to expeditiously effect the registration under the Securities Act of the Registrable Securities which the Company has been requested to register by such Holders and all other Registrable Securities which the Company has been requested to register by other Holders of Registrable Securities by notice delivered to the Company within twenty (20) days after the giving of such notice by the Company. (b) REGISTRATION ON FORM S-1 OR S-2. From time to time after the first anniversary of the date of this Agreement, when the Company is ineligible to file a Registration Statement on Form S-3, one or more Holders of Registered Securities may request in writing that the Company effect the registration under the Securities Act of Registrable Securities; provided that the gross proceeds of the offering to which such request applies are expected to be at least $5 million. If the Holder or Holders initiating such registration intend to distribute the Registrable Securities in an underwritten offering, they shall so state in their request. Promptly after receipt of such notice, the Company will give written notice of such requested registration and related information to all other Holders of Registrable Securities. The Company will then use its commercially reasonable best efforts to expeditiously effect the registration under the Securities Act of the Registrable Securities which the Company has been requested to register by such Holders and all other Registrable Securities which the Company has been requested to register by other Holders of Registrable Securities by notice delivered to the Company within twenty (20) days after the giving of such notice by the Company. (c) FORM. Each registration requested pursuant to Section 2.1(b) shall be effected by the filing of a registration statement on Form S-1 or S-2 (or the successor form of either, unless the use of a different form has been agreed to in writing by the Company and the Majority Participating Holders). No registration of Registrable Securities under this Section 2.1 which shall not have become and remained effective for the period set forth in Section 2.5(a), shall be deemed to be a registration for any purpose of this Section 2.1. In the case of the filing of a registration statement on Form S-3 pursuant to this Section 2.1, the Company shall include such additional disclosure in such registration statement and the prospectus used in connection with such registration statement as reasonably requested by the Majority Participating Holders or, in the case of an underwritten offering, by the managing underwriter(s), in order to successfully market the Common Stock offered in such registration statement. (d) LIMITATION OF REGISTRATION OBLIGATIONS. Notwithstanding the foregoing provisions of this Section 2.1, the Company shall not be obligated to effect any registration, 4 8 qualification or compliance (i) more than twice pursuant to Section 2.1(b), (ii) if the Company shall furnish to the Shareholders a certificate signed by the Chairman of the Board or the Chief Executive Officer of the Company stating that in the good-faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its shareholders for such registration to be effected at such time, in which event the Company shall have the right to defer the filing of the registration statement for a period of not more than ninety (90) days after receipt of the request of the Holder or Holders under this Section 2.1, provided that the Company may not delay the filing of a registration statement pursuant to this clause (ii) more than once in any twelve (12) month period; (iii) within one hundred eighty (180) days of the effective date of a prior registration statement in respect of an underwritten offering to which the provisions of Section 2.2(a) applied in connection with which all Holders were able to sell 75% of the number of Registrable Securities they had requested to be included in such prior registration statement; or (iv) more than twice in a single year. (e) FURNISHING INFORMATION. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 2.1 that the Shareholders shall furnish to the Company such information regarding themselves, the Registrable Securities held by them and the intended method of disposition of such securities as shall be reasonably requested by the Company as required to effect the registration of their Registrable Securities. 2.2 COMPANY REGISTRATION. (a) GENERAL. The Company shall notify the Shareholders in writing at least thirty (30) days prior to the filing of any registration statement under the Securities Act for purposes of offering securities of the Company (excluding registration statements relating solely to employee benefit plans or solely with respect to the issuance by the Company of securities pursuant to corporate reorganizations or other transactions under Rule 145 under the Securities Act), either for its own account or for the account of a security holder or security holders, and the Company will afford each Shareholder an opportunity to include in such registration statement all or part of such Registrable Securities held by such Shareholder. Such notice by the Company shall describe such securities and specify the form, manner and other relevant aspects of such proposed registration. Each Shareholder desiring to include in any such registration statement all or any part of the Registrable Securities held by it shall, within twenty (20) days after the above-described notice from the Company, so notify the Company in writing. Such notice shall state the number of Registrable Securities such Shareholder desires to have included in such registration statement and the intended method of disposition of the Registrable Securities by such Shareholder. If a Shareholder decides not to include all of its Registrable Securities in any registration statement thereafter filed by the Company, such Shareholder shall nevertheless continue to have the right to include any Registrable Securities in any subsequent registration statement or registration statements as may be filed by the Company with respect to offerings of its securities, all upon the terms and conditions set forth herein. No registration of Registrable Securities effected under this Section 2.2 shall relieve the Company of any of its obligations to effect registrations of Registrable Securities pursuant to Section 2.1 hereof. (b) RIGHT TO TERMINATE REGISTRATION. The Company shall have the right to terminate or withdraw any registration initiated by it under this Section 2.2 prior to the effectiveness of such registration whether or not any Shareholder has elected to include securities 5 9 in such registration. The Registration Expenses of such withdrawn registration shall be borne by the Company in accordance with Section 2.4 hereof. (c) NO OBLIGATION. Nothing in this Section 2.2 shall obligate the Company to file a registration statement. 2.3 ADDITIONAL PROCEDURES IN CONNECTION WITH UNDERWRITTEN OFFERINGS; LOCKUPS; CUTBACKS. (a) REGISTRATIONS PURSUANT TO SECTION 2.1; CUTBACK. In the case of a registration pursuant to Section 2.1 hereof, whenever the Majority Participating Holders shall request that such registration shall be effected pursuant to an underwritten offering, such registration shall be so effected, and only securities which are to be distributed by the underwriters may be included in such registration. Such underwriters shall be designated by the following method: (i) the Company will provide a list to the Majority Participating Holders of six (6) underwriters, each of which shall be on the list of the top twenty (20) equity underwriters in the United States, (ii) the Majority Participating Holders may then remove no more than three (3) underwriters from such list, and (iii) the Company may then designate the underwriters for the underwritten offering pursuant to Section 2.1 from those remaining underwriters on such list. If requested by such underwriters, the Company and each participating seller will enter into an underwriting agreement with such underwriters for such offering containing such representations and warranties by the Company and such other terms and provisions applicable to the Company as are customarily contained in underwriting agreements with respect to secondary distributions, including, without limitation, indemnity and contribution. In each such registration pursuant to Section 2.1, each Shareholder agrees that without the consent of the managing underwriter, for a period from fifteen (15) days prior to the effective date of the registration statement until ninety (90) days after such effective date, such Shareholder will not directly or indirectly sell, offer to sell, grant any option for the sale of, or otherwise dispose of any common equity or securities convertible into common equity except (x) for Registered Securities sold in such registered offering and (y) transfers to Permitted Transferees of such Shareholder, each of whom shall have furnished to the Company and the managing underwriter their written consent to be bound by this Agreement, including this Section 2.3. If the managing underwriter shall advise the Shareholders initially requesting registration that the total amount of securities to be included in a registration pursuant to Section 2.1 should be limited due to market conditions or otherwise, the securities so included shall be reduced as follows: (a) all securities which shareholders other than the Shareholders seek to include in the offering shall be excluded from the offering to the extent limitation on the number of shares included in the underwriting is required, (b) if further limitation on the number of shares to be included in the underwriting is required, the number of Registrable Securities held by Shareholders that may be included in the underwriting shall be reduced pro rata among the selling Shareholders in accordance with the number of shares of Registrable Securities held by each such Shareholder. (b) REGISTRATIONS PURSUANT TO SECTION 2.2; CUTBACK. In connection with the exercise of any registration rights granted to Shareholders pursuant to Section 2.2 hereof, if the registration is to be effected by means of an underwritten offering, the Company shall not be 6 10 required to include any of the Shareholders' securities in such underwriting unless they agree to be bound by the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the managing underwriter for the offering shall advise the Company that the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities to be sold other than by the Company that can be successfully offered, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, which the managing underwriter believes will not jeopardize the success of the offering. In such case, the securities so included shall be reduced as follows: (a) all securities which shareholders other than the Company and the Shareholders seek to include in the offering shall be excluded from the offering to the extent limitation on the number of shares included in the underwriting is required, (b) if further limitation on the number of shares to be included in the underwriting is required, the number of Registrable Securities held by Shareholders that may be included in the underwriting shall be reduced pro rata among the selling Shareholders in accordance with the total shares proposed to be included by each Shareholder in the underwriting. (c) SELLERS PARTY TO UNDERWRITING AGREEMENT. The Company shall request and make commercially reasonable good-faith efforts to persuade the underwriter(s) not to require any Shareholder to make any representations and warranties to any underwriter in a registration effected pursuant to Sections 2.1 or 2.2 other than the customary representations, warranties and agreements relating to such Shareholder's title to Registrable Securities and authority to enter into the underwriting agreement. 2.4 EXPENSES OF REGISTRATION. (a) All fees and expenses incident to the Company's performance of or compliance with this Agreement shall be paid by the Company, including without limitation: (i) all registration and filing fees (including, without limitation, with respect to filings required to be made with the NASD); (ii) fees and expenses of compliance with securities or blue sky laws (including, without limitation, fees and disbursements of counsel for the underwriters or selling holder in connection with blue sky qualifications of the Registrable Securities and determination of their eligibility for investment under the laws of such jurisdictions as the managing underwriters or holders of a majority of the Registrable Securities being sold may designate); (iii) printing (including, without limitation, expenses of printing or engraving certificates for the Registrable Securities in a form eligible for deposit with Depository Trust Company and of printing prospectuses), messenger, telephone and delivery expenses; (iv) reasonable fees and disbursements of counsel for the Company, underwriters and for the selling holders of the Registrable Securities; (v) fees and disbursements of all independent certified public accountants of the Company (including, without limitation, the expenses of any special audit and "cold comfort" letters required by or incident to such performance); (vi) fees and disbursements of underwriters as reasonably approved by the Company (excluding (x) discounts, commissions or fees of underwriters, selling brokers, dealer managers or similar securities industry professionals relating to the distribution of the Registrable Securities or (y) legal expenses of any Person other 7 11 than the Company, the underwriters and the selling holders); (vii) securities acts liability insurance if the Company so desires, and in such event, coverage for the underwriters or selling holders of the Registrable Securities should they so request; (viii) fees and expenses associated with other Persons retained by the Company, and (ix) fees and expenses associated with any NASD filing required to be made in connection with the Registration Statement, including, if applicable, the fees and expenses of any "qualified independent underwriter" (and its counsel) that is required to be retained in accordance with the rules and regulations of the NASD (all such expenses being herein called "Registration Expenses"). The Company will, in any event, pay its internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expenses of any annual audit, the fees and expenses incurred in connection with the listing of the securities to be registered on each securities exchange on which similar securities issued by the Company are then listed, rating agency fees and the fees and expenses of any person, including special experts, retained by the Company. (b) In connection with each registration statement subject to this Agreement, the Company will reimburse the holders of Registrable Securities being registered pursuant to such registration statement for the reasonable fees and disbursements of not more than one counsel (or more than one counsel if a conflict exists among such selling holders in the exercise of the reasonable judgment of counsel for the selling holders and counsel for the Company) chosen by the Majority Participating Holders. 2.5 OBLIGATIONS OF THE COMPANY. Whenever required to effect the registration of any Registrable Securities, the Company shall, as expeditiously as reasonably possible: (a) Prepare and file promptly (and in any event within ninety (90) days in the case of a Form S-1, and thirty (30) days in the case of a Form S-3, from receipt by the Company of the written request of the requesting Shareholders) with the SEC a registration statement with respect to such Registrable Securities and use all commercially reasonable best efforts to cause such registration statement to become effective as expeditiously as possible, and, upon the request of the holders of a majority of the Registrable Securities registered thereunder, keep such registration statement effective for up to one hundred twenty (120) days or, if earlier, until the Shareholders have completed the distribution related thereto. (b) Prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement. (c) Furnish to the Shareholders such number of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as they may reasonably request in order to facilitate the disposition of Registrable Securities owned by the Shareholders. 8 12 (d) Use its commercially reasonable best efforts to register and qualify the securities covered by such registration statement under such other securities or Blue Sky laws of such jurisdictions as shall be reasonably requested by the Shareholders, provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions. (e) In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter(s) of such offering. Each Shareholder participating in such underwriting shall also enter into and perform its obligations under such an agreement subject to Section 2.3(c) hereof. (f) Use its commercially reasonable best efforts to cooperate, and to cause its key executives to cooperate, with the Shareholder and, in the case of an underwritten offering, the managing underwriter, in connection with the disposition of the Registrable Securities owned by the Shareholders, including without limitation causing key executives of the Company to participate under the direction of the managing underwriter in a "road show" scheduled by the managing underwriter. (g) Without limiting the obligations of the Company under clause (b) above, notify each holder of Registrable Securities covered by such registration statement at any time when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing. (h) Furnish, at the request of any Shareholder participating in the registration, on the date that such Registrable Securities are delivered to the underwriters for sale, if such securities are being sold through underwriters, or, if such securities are not being sold through underwriters, on the date that the registration statement with respect to such securities becomes effective, (i) an opinion, dated as of such date, of the counsel representing the Company for the purposes of such registration, in such form and substance as is customarily given to underwriters in an underwritten public offering and reasonably satisfactory to the Shareholder requesting registration, addressed to the underwriters, if any, and to the Shareholder requesting registration of Registrable Securities, and (ii) a letter dated as of such date, from the independent certified public accountants of the Company, in such form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering and reasonably satisfactory to such Shareholder requesting registration, addressed to the underwriters, if any, and if permitted by applicable accounting standards, to the Shareholders requesting registration of Registrable Securities. 2.6 TERMINATION OF REGISTRATION RIGHTS. All registration rights granted pursuant to Section 2.1 shall terminate and be of no further force and effect with respect to a Shareholder as of the date when all Registrable Securities held by and issuable to such Shareholder may be sold under Rule 144 under the Securities Act during any ninety (90) day period. 9 13 2.7 COMPANY LOCKUP. In the case of an underwritten offering under Section 2.1 hereof, the Company shall refrain, without the consent of the managing underwriter, for a period from fifteen (15) days before the effective date of the registration sale until ninety (90) days after such effective date, from directly or indirectly selling, offering to sell, granting any option for the sale of, or otherwise disposing of any common equity or securities convertible into common equity (excluding sales, offers and grants relating solely to employee benefit plans or solely with respect to the issuance by the Company of securities pursuant to corporate reorganizations or other transactions under Rule 145 under the Securities Act). 2.8 INDEMNIFICATION. In the event any Registrable Securities are included in a registration statement under Section 2.1 or 2.2: (a) To the extent permitted by law, the Company will, indemnify and hold harmless each Shareholder, the partners, officers, directors and legal counsel of each Shareholder, any underwriter (as defined in the Securities Act) for such Shareholder and each person, if any, who controls such Shareholder or underwriter within the meaning of the Securities Act or the Exchange Act (each a "Covered Person"), against any losses, claims, damages, or liabilities (joint or several) to which they may become subject under the Securities Act, the Exchange Act or other federal or state law, common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively a "Violation") by the Company: (i) any untrue statement or alleged untrue statement of a material fact contained in or incorporated by reference in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, or any document incorporated by reference therein, or any other such disclosure document (including without limitation reports and other documents filed under the Exchange Act to the extent incorporated by reference therein), (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any state or federal law, rule or regulation, including without limitation, any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law in connection with the offering covered by such registration statement; and the Company will reimburse each such Covered Person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the indemnity agreement contained in this Section 2.8(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Company, which consent shall not be unreasonably withheld, nor shall the Company be liable in any such case for any such loss, claim, damage, liability or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished by any Covered Person expressly for use in connection with such registration by such Covered Person. 10 14 (b) To the extent permitted by law, each Shareholder will severally and not jointly, if Registrable Securities held by such Shareholder are included in the securities as to which such registration, qualification or compliance is being effected, indemnify and hold harmless the Company, each of its directors, its officers, and legal counsel and each person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act, any underwriter and any other Shareholder selling securities under such registration statement or any of such other Shareholder's partners, directors or officers or any person who controls such Shareholder, against any losses, claims, damages or liabilities (joint or several) to which the Company or any such director, officer, legal counsel, controlling person, underwriter or other such Shareholder, or partner, director, officer or controlling person of such other Shareholder may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages or liabilities (or actions in respect thereto) arise out of or are based upon any Violation, in each case to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by such Shareholder under an instrument duly executed by such Shareholder and stated to be specifically for use in connection with such registration; and each such Shareholder will reimburse any legal or other expenses reasonably incurred by the Company or any such director, officer, legal counsel, controlling person, underwriter or other Shareholder, or partner, officer, director or controlling person of such other Shareholder in connection with investigating or defending any such loss, claim, damage, liability or action if it is judicially determined that there was such a Violation; provided, however, that the indemnity agreement contained in this Section 2.8(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Shareholder, which consent shall not be unreasonably withheld; provided, further, that no Shareholder shall provide an indemnity under this Section 2.8 for an amount in excess of such Shareholder's net proceeds received in such offering. (c) Promptly after receipt by an indemnified party under this Section 2.8 of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 2.8, deliver to the indemnifying party a written notice of the commencement thereof, and the indemnifying party shall have the right to participate therein, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action, to the extent materially prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 2.8, but the omission so to deliver written notice to the indemnifying party will not relieve it of any liability that it may have to any indemnified party otherwise than under this Section 2.8. (d) If the indemnification provided for in this Section 2.8 is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any losses, 11 15 claims, damages or liabilities referred to herein, the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall to the extent permitted by applicable law contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party on the other in connection with the Violation(s) that resulted in such loss, claim, damage or liability, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by a court of law by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission; provided, that in no event shall any contribution by a Shareholder hereunder exceed the net proceeds from the offering received by such Shareholder. (e) The obligations of the Company and Shareholders under this Section 2.8 shall survive completion of any offering of Registrable Securities in a registration statement. No indemnifying party, in the defense of any such claim or litigation, shall, except with the consent of each indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect of such claim or litigation. 2.9 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company to register Registrable Securities pursuant to this Section 2 may be assigned by a Shareholder to a transferee or assignee of Registrable Securities which (a) is a Permitted Transferee or (b) acquires at least twenty-five percent (25%) of the Registrable Securities held by such Shareholder as of the date of this Agreement (as adjusted for stock splits and combinations etc.); provided, however, (i) the transferor shall, within a reasonable time after such transfer, furnish to the Company written notice of the name and address of such transferee or assignee and the securities with respect to which such registration rights are being assigned and (ii) such transferee shall agree to be subject to all rights and obligations of such transferor Shareholder set forth in this Agreement. Notwithstanding the foregoing, the right to cause the Company to register Registrable Securities pursuant to this Section 2 shall be deemed to have been transferred by the LLC to any of its Members in connection with the transfer by the LLC of Registrable Securities to such Member(s); provided that, such Members are signatories to this Agreement or are Permitted Transferees of such signatories. 2.10 PARTICIPATION BY SHAREHOLDERS. In connection with the preparation and filing of each registration statement registering Registrable Securities under the Securities Act, and before filing any such registration statement or any other document in connection therewith, the Company shall give the participating Holders and their underwriters, if any, and their respective counsel and accountants, the opportunity to participate in the preparation of such registration statement, each prospectus included therein or filed with the SEC, each amendment thereof or supplement thereto and any related underwriting agreement or other document to be filed, and give each of the aforementioned Persons such 12 16 access to its books and records and such opportunities to discuss the business of the Company with its officers and the independent public accountants who have certified its financial statements as shall be necessary, in the opinion of such Holders, underwriters, counsel or accountants, to conduct a reasonable investigation within the meaning of the Securities Act. 2.11 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view to making available to Holders the benefits of Rule 144 promulgated under the Securities Act and any other rule or regulation of the SEC that may at any time permit a Holder to sell Securities of the Company to the public without registration or pursuant to a registration on Form S-3, the Company agrees to: (a) make and keep public information available, as those terms are understood and defined in SEC Rule 144 at all times for so long as the Company remains subject to the periodic reporting requirements under Section 13 or 15(d) of the Exchange Act; (b) file with the SEC in a timely manner all reports and other documents required of the Company under the Act and the 1934 Act; and (c) furnish to any Holder, so long as the Holder owns any Registrable Securities, promptly upon written request (i) a written statement by the Company that it has complied with the reporting requirements of SEC Rule 144, the Act and the 1934 Act, or that it qualifies as a registrant whose securities may be resold pursuant to Form S-3, and (ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed. 3. RIGHT OF FIRST OFFER; CO-SALE RIGHTS Subject to Sections 3.7 and 3.8, the Company is hereby granted a right of first offer with respect to any proposed disposition of shares of Stock owned by Catterton, the Bain Shareholders, and WP, as of the date of this Agreement, and to any shares of Stock transferred to their Permitted Transferees. Any transfer or disposition of stock not in accordance with the provisions of this Section 3 may at the option of the Company be treated as void and not reflected on the stock transfer records of the Company. 3.1 NOTICE OF INTENDED DISPOSITION. In the event that Catterton, the Bain Shareholders, WP or any of their Permitted Transferees are contemplating the transfer of shares of Stock owned by such Shareholder as of the date of this Agreement which transfer is not exempt from the provisions of this Section 3 under the terms of Section 3.7 (the "Transferring Shareholder," and the shares subject to such offer to be hereafter called the "Target Shares"), the Transferring Shareholder shall promptly deliver to the Secretary of the Company and to Catterton, the Bain Shareholders, WP and any of their Permitted Transferees, as the case may be, written notice stating that such Shareholder is contemplating such a transfer and setting forth the number of Target Shares and the purchase price proposed by the Transferring Shareholder (the "Disposition Notice"). 13 17 3.2 EXERCISE OF RIGHT BY THE COMPANY. The Company shall, for a period of forty-five (45) business days from receipt of the Disposition Notice (the "Company Exercise Period"), have the right to make an offer to purchase all of the Target Shares at the purchase price set forth in the Disposition Notice by giving the Transferring Shareholder a written binding offer to purchase the Target Shares (the "Company Offer Notice"), which offer, by its terms, shall remain open for thirty (30) days. At the same time it gives such notice to the Transferring Shareholder, the Company shall provide a copy of the Company Offer Notice to Catterton, the Bain Shareholders, WP and any of their Permitted Transferees, as the case may be. If the Company gives the Transferring Shareholder a Company Offer Notice before expiration of the Company Exercise Period, then, for a period of thirty (30) days following the date on which the Company Offer Notice is given, the Transferring Shareholder may not transfer the Target Shares except to the Company or to a Permitted Transferee pursuant to the terms of this Agreement. If, at the end of the thirtieth (30th) day following the effective date of such Company Offer Notice, the Transferring Shareholder shall not have transferred the Target Shares pursuant to the prior sentence, the Company's first offer rights shall continue to be applicable to any subsequent disposition of the Target Shares by the Transferring Shareholder. 3.3 NON-EXERCISE OF RIGHT OF FIRST REFUSAL. Subject to the co-sale rights described in Section 3.6 below of Catterton, the Bain Shareholders, WP and any of their Permitted Transferees, in the event the Company Offer Notice with respect to the Target Shares is not given to the Transferring Shareholder before the expiration of the Company Exercise Period, the Transferring Shareholder shall have a period of one hundred twenty (120) days from the expiration of the Company Exercise Period in which to sell the Target Shares to the third-party transferee at a purchase price not less than that specified in the Disposition Notice without any further obligation to the Company, with respect to the Target Shares. The third-party transferee shall acquire the Target Shares free and clear of subsequent rights of first offer under this Agreement. In the event the Transferring Shareholder does not consummate the sale or disposition of the Target Shares within one hundred twenty (120) days from the expiration of the Company Exercise Period, the Company's first offer rights shall continue to be applicable to any subsequent disposition of the Target Shares by the Transferring Shareholder until such rights lapse in accordance with Section 3.8 below. Furthermore, the exercise or non-exercise of the rights of the Company under this Agreement to purchase Target Shares from a Transferring Shareholder shall not adversely affect its rights to make subsequent purchases from a Transferring Shareholder of Target Shares. 3.4 CLOSING OF SALE OF TARGET SHARES. If the Transferring Shareholder shall accept the offer contained in the Company Offer Notice, the closing of such purchase and sale of Target Shares by the Company (and/or its assignees) shall take place as soon as reasonably practicable, and in no event later than ten (10) business days, after the Transferring Shareholder gives written notice to the Company that it accepts such offer. At the closing of such purchase and sale of capital stock, and upon delivery by the Company (and/or its assignees) of the purchase price of such capital stock by wire transfer of immediately available funds to an account or accounts designated by the Transferring 14 18 Shareholder, the Shareholder shall deliver to the Company (and/or its assignee) certificates representing the Target Shares to be purchased, each certificate to be properly endorsed for transfer. 3.5 ASSIGNMENT. The right of the Company to purchase any part of the Stock under this Section 3 may be assigned in whole or in part to one or more employees, officers or directors of the Company, or to the Shareholders, following acceptance of the offer contained in the Company Offer Notice by the Transferring Shareholders; provided that if assigned to the Shareholders, such right shall be assigned on a pro rata basis in accordance with the number of Registrable Securities held by each such Shareholder. 3.6 CO-SALE RIGHTS IN SALES BY A TRANSFERRING SHAREHOLDER. (a) Grant of Co-Sale Rights. In the event that the Company does not exercise its right of first offer pursuant to Section 3.2 with respect to the Target Shares, then Catterton, the Bain Shareholders, WP and any of their Permitted Transferees , as the case may be (each a "Tag Along Seller"), shall have the right, exercisable upon written notice to the Transferring Shareholder within twenty (20) days after receipt of the Disposition Notice, to sell a number of shares of Stock owned by such Tag Along Seller to any third-party transferee of the Target Shares upon the same terms and conditions as the Transferring Shareholder and the Transferring Shareholder shall not consummate such sale of Target Shares except in compliance with this Section 3.6. Such written notice delivered to the Transferring Shareholder by such Tag Along Seller shall set forth the number of shares of Stock which such Tag Along Seller desires to sell to a third-party transferee, which number shall not exceed the product obtained by multiplying (i) the aggregate number of Target Shares, by (ii) a fraction, the numerator of which is the number of shares of Stock at the time owned by such Tag Along Seller and the denominator of which is the number of shares of Stock at the time owned by the Transferring Shareholder and such Tag Along Seller, collectively. (b) CUTBACK. If a third-party transferee does not agree to purchase all of the shares of Stock which the Transferring Shareholder and any Tag Along Seller wish to sell, the number of shares which each selling Shareholder shall sell to such third-party transferee shall be reduced pro rata among the selling Shareholders in accordance with the number of shares of Stock which they proposed be sold in such transaction. (c) CONTROL OF SALE PROCESS. The Transferring Shareholder shall, in its sole discretion, decide whether or not to pursue, consummate, postpone or abandon any proposed sale to a third-party transferee and the terms and conditions thereof. The Transferring Shareholder and its Affiliates shall have no liability to a Tag Along Seller or its Affiliates arising from, relating to or in connection with the pursuit, consummation, postponement, abandonment or terms and conditions of any proposed sale of Stock to a third-party transferee except to the extent the Transferring Shareholder shall have failed to comply with the provisions of this Section 3.6. (d) NON-EXERCISE. The exercise or non-exercise of the rights of such Shareholder hereunder to participate in one or more sales of capital stock made by a Transferring Shareholder 15 19 shall not adversely affect its rights to participate in subsequent sales by the Transferring Shareholder. 3.7 EXEMPT TRANSFERS. Notwithstanding the foregoing, the first offer right of the Company and the co-sale rights of the Tag Along Seller set forth in this Section 3 shall not apply to: (a) any transfer of Stock by a Shareholder (i) to a Permitted Transferee of such Shareholder; provided, that, the Permitted Transferee shall furnish the Company with a written agreement to be bound by and comply with the terms of this Agreement, and such transferred Stock shall remain subject to the terms of this Agreement, and (ii) to the public pursuant to a registration statement or pursuant to a "brokers' transaction," within the meaning of the Securities Act, pursuant to Rule 144 under the Securities Act (each, an "Exempt Transfer"); and (b) the transfer of a number of shares of Stock by a Shareholder which, in addition to all other shares of Stock transferred by such Shareholder (except for (i) Shares transferred by such Shareholder in Exempt Transfers and (ii) Target Shares transferred by such Shareholder), does not exceed five percent (5%) of the fully diluted Common Stock of the Company at the time of such transfer. 3.8 TERMINATION. Notwithstanding anything to the contrary in this Agreement, the rights and obligations of the parties pursuant to this Section 3 shall terminate upon (a) a merger of the Company with another corporation or entity (without regard to which entity survives), in which the Company's shareholders immediately prior to the transaction own immediately after the transaction less than fifty percent (50%) of the equity securities of the surviving corporation or its parent, as applicable or (b) a sale of all or substantially all of the assets of the Company. 4. VOTING AGREEMENT 4.1 ELECTION OF MEMBERS OF THE BOARD OF DIRECTORS. (a) The Board of Directors of the Company (and, if applicable, the Nominating Committee thereof) shall: (i) for so long as Catterton and its Permitted Transferees hold at least five percent (5%) of the issued and outstanding Common Stock of the Company, nominate one (1) member of the Company's Board of Directors designated by Catterton, who initially shall be Craig Sakin, (ii) for so long as the Bain Shareholders and their Permitted Transferees hold at least twenty percent (20%) of the issued and outstanding Common Stock of the Company, nominate two (2) members of the Company's Board of Directors designated by the Bain Shareholders, (iii) for so long as the Bain Shareholders and their Permitted Transferees hold at least five percent (5%) but less than twenty percent (20%) of the issued and outstanding Common Stock of the Company, nominate one (1) member of the Company's Board of Directors designated by the Bain Shareholders, (iv) for so long as WP and its Permitted Transferees hold at least five percent (5%) of the issued and outstanding Common Stock of the Company, nominate one (1) member of the Company's Board of Directors designated by WP, who initially shall be 16 20 Ellis Jones, and (v) nominate one (1) member of the Company's Board of Directors designated by the Chief Executive Officer of the Company, who initially shall be D. Stephen C. Williamson. (b) To the extent that additional "independent directors" in addition to those Directors elected pursuant to Section 4.1(a) are required to serve on the Board of Directors of the Company to fulfill the rules and regulations promulgated by the NASD, the Board of Directors of the Company (and, if applicable, the Nominating Committee thereof) shall, for so long as the Bain Shareholders and their Permitted Transferees hold at least twenty percent (20%) of the issued and outstanding Common Stock of the Company, nominate (i) one (1) person designated by the Bain Shareholders to serve as a member of the Company's Board of Directors, and (ii) one (1) person designated by, collectively, the Company, Catterton and WP to serve as a member of the Company's Board of Directors; provided, that, such individuals must meet the criteria established by the NASD for "independent directors" to be so nominated. (c) Each of the Company and the Shareholders shall, in the case of the Shareholders, vote any shares of Common Stock he may own and, in the case of the Company and the Shareholders, take such other action, whether by written consent or otherwise, to (i) elect or cause the election of the foregoing nominees, (ii) fix the number of members of the Company's Board of Directors at five (5), or, in the event that additional "independent directors" are required to serve on the Purchaser Board to fulfill the rules and regulations promulgated by the NASD, then fix the number of members of the Company's Board of Directors at seven (7), and (iii) remove from the Board of Directors such nominee at the written request (and only at the written request) of the party entitled to designate such director. (d) In the event the Company's Board of Directors does not nominate an individual pursuant to Section 4.1(b)(i) or (ii), the parties to this Agreement shall not nominate or vote in favor of a candidate who was not nominated pursuant to the applicable subsection, unless, based upon a written opinion of counsel, which counsel is reasonably acceptable to the relevant designating party pursuant to Section 4.1(b), that the failure to elect an additional "independent director" would be reasonably likely to result in Odwalla's common stock being delisted from the NASDAQ National Market within 30 calendar days. 4.2 TERMINATION OF VOTING AGREEMENT. The rights and obligations of each Shareholder and the Company with respect to Section 4.1 shall cease, (i) with respect to Catterton, the Bain Shareholders and WP, at such time as such Shareholder ceases to hold at least five percent (5%) of the issued and outstanding Common Stock of the Company, or (ii) with respect to the other Shareholders, at such time as such Shareholder ceases to hold at least fifty percent (50%) of the shares held as of the date hereof as reflected in Schedule 1. 5. OTHER AGREEMENTS 5.1 INFORMATION RIGHTS. For so long as each of the Bain Shareholders, Catterton and WP, and each such party's Permitted Transferee, holds at least fifty percent (50%) of the shares held by such party as of the date hereof as reflected in Schedule 1, the Company shall deliver to such party, promptly 17 21 following delivery to the Company's Board of Directors, a copy of each unaudited balance sheet of the Company and its subsidiaries and each unaudited statement of income of the Company and its subsidiaries, in each case prepared in accordance with GAAP (subject to normal year-end adjustments and without footnote disclosure). 5.2 RESTRICTIVE LEGEND. All certificates representing the Stock and any certificates subsequently issued with respect thereto or in substitution therefor shall bear a legend substantially as follows, in addition to any legend the Company determines is required pursuant to any applicable legal requirement: "The shares represented by this certificate may not be offered, sold, pledged, transferred or otherwise disposed of except in accordance with the requirements of the Securities Act of 1933, as amended, and a Shareholders' Rights Agreement, dated as of May 2, 2000, a copy of which Shareholders' Rights Agreement Odwalla, Inc. will furnish, without charge, to the holder of this certificate upon written request therefor." provided, however, that the holder of any such certificate shall be entitled to receive from the Company, at no expense to such holder, a new certificate which does not bear such legend if (a) the Stock represented by such certificate shall have been sold, transferred or otherwise disposed of pursuant to one or more of the alternative conditions set forth in Section 5.28(m) of the Merger Agreement or (b) the conditions of paragraph (k) of Rule 144 promulgated under the Securities Act shall have been satisfied. The Company, at its discretion, may cause a stop transfer order to be placed with its transfer agent(s) with respect to the certificates for the Stock but not as to the certificates for any part of the Stock as to which said legend is no longer appropriate. 5.3 SHAREHOLDER LOCKUP. Except as provided in Section 5.4(b), notwithstanding anything in this Agreement to the contrary: each of the Shareholders agrees not to sell or otherwise transfer or dispose of any shares of Stock except to a Permitted Transferee for a period of one (1) year commencing on the date of this Agreement. 5.4 STANDSTILL. (a) For the period beginning on the date of this Agreement and ending upon a merger of the Company with another corporation or entity (without regard to which entity survives), or a sale of all or substantially all of the assets of the Company, in either case in which the Company's shareholders immediately prior to the transaction own immediately after the transaction less than fifty percent (50%) of the equity securities of the surviving corporation or its parent, neither Catterton, WP nor any Bain Shareholder or any of their respective Affiliates, shall, without the prior written consent of the Board of Directors of the Company: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, including as part of a Group (as such term is defined in Section 13(d)(3) of the Exchange Act), by purchase or otherwise, any additional shares of Common Stock or other voting securities or 18 22 direct or indirect rights to acquire any additional shares of Common Stock or other voting securities of the Company or any subsidiary of the Company, or of any successor to or person in control of the Company (except pursuant to a stock split, stock dividend, recapitalization, reclassification or similar transaction), or any assets of the Company or any subsidiary or division of the Company or of any such successor or controlling person; (ii) make, or in any way participate, directly or indirectly, in any "solicitation" of "proxies" to vote (as such terms are defined in Rule 14a-1 under the Exchange Act), with respect to the solicitation or voting of any voting securities of the Company in opposition to any matter that has been recommended by the Board of Directors of the Company or in favor of any matter that has not been approved by the Board, or become a "participant" in any "election contest" (as such terms are defined or used in Rule 14a-11 under the Exchange Act) with respect to the Company. (iii) make any unsolicited offer or proposal to acquire the Company or shares of Common Stock or other voting securities of the Company. Notwithstanding the foregoing, nothing in this Agreement shall prohibit the Bain Shareholders, Catterton or WP from purchasing in one or more transactions any debt securities, or up to an aggregate of 5% of any class of publicly traded equity securities (the "5% Limitation"), of any company referred to in this Section 5.4. The 5% Limitation shall be computed on a cumulative basis and shall be measured at the time of each purchase of such equity securities, such that at the time of each such purchase the aggregate amount of such equity securities purchased by the Bain Shareholders, Catterton or WP, as applicable, from the date of this Agreement to the time of such purchase, shall not exceed 5% of the outstanding shares of such class of publicly traded equity securities. The Bain Shareholders, Catterton and WP acknowledge that they are aware, and that they will advise their representatives who are informed of any of the confidential information referred to in this Agreement and/or related to the Company, of the restrictions imposed by applicable securities laws restricting trading in securities while in possession of material non-public information received from the issuer of such securities and on communication of such information when it is reasonably foreseeable that the recipient is likely to trade such securities in reliance on such information. (b) The limitations provided in Section 5.3 and Section 5.4(a) shall immediately be suspended as to each Shareholder upon the occurrence of any of the following events: (i) the occurrence of an Acquisition Proposal which has not been initiated by such Shareholder or its Affiliates, (ii) a public announcement that the Company is "for sale" or (iii) the adoption by the Board of Directors of a plan of liquidation or dissolution. The Company shall provide the Shareholders with prompt written notice of the occurrence of any of the events set forth in this clause (b), and in no event more than five (5) business days after the occurrence of such event. 19 23 6. MISCELLANEOUS 6.1 LLC SHARES. For all purposes of this Agreement, all shares of Stock owned by the LLC shall be deemed to be owned by the Bain Shareholders for so long as the Bain Shareholders are Members of the LLC. 6.2 AMENDMENT OF LLC AGREEMENT. Each of the LLC and each Shareholder party to the LLC Agreement dated as of February 2, 2000 hereby agrees that it will not amend, supplement or otherwise modify the provisions of Section 5.2 of such agreement without the prior written consent of the Company. 6.3 GOVERNING LAW. This Agreement is to be construed in accordance with and governed by the laws of the State of California (as permitted by Section 1646.5 of the California Civil Code or any similar successor provision), without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the State of California to the rights and duties of the parties. 6.4 TERMINATION OF EXISTING RIGHTS AGREEMENT. Each of the Company and Catterton hereby agrees the Existing Rights Agreement is hereby terminated and shall be of no further force and effect and that no party thereto shall have any further rights or obligations thereunder. 6.5 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors, and administrators of the parties hereto and shall inure to the benefit of and be enforceable by each person who shall be a transferee of a Shareholder from time to time; provided, however, that prior to the receipt by the Company of adequate written notice of the transfer of any Registrable Securities specifying the full name and address of the transferee, the Company may deem and treat the person listed as the holder of such Registrable Securities in its records as the absolute owner and holder of such Registrable Securities for all purposes, including the payment of dividends or any redemption price. 6.6 SEVERABILITY. In case any provision of this Agreement shall be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. 6.7 AMENDMENT AND WAIVER. 20 24 Except as otherwise expressly provided, the rights and obligations of the Company and the Shareholders under this Agreement may be amended, modified or waived only with the written consent of the Company and the holders of at least a seventy-five percent (75%) of the Registrable Securities, provided, however, that such consent is not required if the sole purpose of such amendment or modification is to add additional shareholders of the Company to this Agreement; and provided further that no amendment which would adversely affect any Shareholder or group of Shareholders shall be effective without the written consent of such Shareholder or such group. 6.8 DELAYS OR OMISSIONS. It is agreed that no delay in exercising or omission to exercise any right, power, or remedy accruing to any Shareholder, upon any breach, default or noncompliance of the Company under this Agreement, shall impair any such right, power, or remedy, nor shall it be construed to be a waiver of any such breach, default or noncompliance, or any acquiescence therein, or of any similar breach, default or noncompliance thereafter occurring. It is further agreed that any waiver, permit, consent, or approval of any kind or character on any Shareholder's part of any breach, default or noncompliance under the Agreement or any waiver on such Shareholder's part of any provisions or conditions of this Agreement must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement, by law, or otherwise afforded to Shareholders, shall be cumulative and not alternative. 6.9 NOTICES. All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (i) upon personal delivery to the party to be notified, (ii) when sent by confirmed telex or facsimile if sent during normal business hours of the recipient; if not, then on the next business day, (iii) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) one (1) day after deposit with a nationally recognized overnight courier, specifying next-day delivery, with written verification of receipt. All communications shall be sent to the addresses set forth on Schedule 2 attached hereto or such other address as may be specified by any Shareholder by giving notice to the Company as aforesaid. 6.10 ATTORNEYS' FEES. In the event that any dispute among the parties to this Agreement should result in litigation, arbitration or other method of dispute resolution, the Person presiding over such action or other proceeding may award reasonable attorneys' fees, costs and disbursements to the prevailing party (in addition to any other relief to which the prevailing party may be entitled). 6.11 TITLES AND SUBTITLES. The headings contained in this Agreement are for convenience of reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement. 21 25 6.12 COUNTERPARTS. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument. 6.13 CONSTRUCTION. For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include the masculine and feminine genders. 6.14 ENTIRE AGREEMENT. This Agreement, which includes the Exhibits and other agreements expressly referenced herein (if any), constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes any prior agreements (including, but not limited to, the Existing Rights Agreement), representations, statements, negotiations, understandings, proposals or undertakings, oral or written, with respect to the subject matter expressly set forth herein. 22 26 IN WITNESS WHEREOF, the parties hereto have executed this SHAREHOLDERS' RIGHTS AGREEMENT as of the date set forth in the first paragraph hereof. THE COMPANY: ODWALLA, INC., a California corporation By: --------------------------------- Name: D. Stephen C. Williamson Title: Chief Executive Officer SHAREHOLDER: CATTERTON-SIMON PARTNERS III, L.P., a Delaware limited partnership By: --------------------------------- Name: Title: SHAREHOLDER: D. STEPHEN C. WILLIAMSON, an individual By: --------------------------------- Name: D. Stephen C. Williamson SHAREHOLDER: U.S. EQUITY PARTNERS, L.P., a Delaware limited partnership By: --------------------------------- Name: Title: 23 27 SHAREHOLDER: U.S. EQUITY PARTNERS (OFFSHORE), L.P., a Cayman Islands limited partnership By: --------------------------------- Name: Title: SHAREHOLDER: BANCBOSTON INVESTMENTS INC. a Massachusetts corporation By: --------------------------------- Name: Title: SHAREHOLDER: BAIN CAPITAL FUND VI, L.P., By: Bain Capital Partners VI, L.P., its general partner By: Bain Capital Investors VI, Inc., its general partner By: --------------------------------- Name: Title: Managing Director SHAREHOLDER: BCIP ASSOCIATES II BCIP TRUST ASSOCIATES II BCIP ASSOCIATES II-B BCIP TRUST ASSOCIATES II-B BCIP ASSOCIATES II-C, By: Bain Capital, Inc., their Managing Partner By: --------------------------------- Name: Title: Managing Director 24 28 SHAREHOLDER: PEP INVESTMENTS PTY LTD., By: Bain Capital, Inc., its Attorney-in-Fact By: --------------------------------- Name: Title: Managing Director SHAREHOLDER: RGIP, LLC, a Delaware limited liability company By: --------------------------------- Name: Title: Authorized Person SHAREHOLDER: JIP ENTERPRISES, INC., a British Virgin Islands corporation By: --------------------------------- Name: Title: Authorized Person 25 29 SHAREHOLDER: MICHAEL CARTER, an individual By: --------------------------------- Name: Title: SHAREHOLDER: DOUGLAS LEVIN, an individual By: --------------------------------- Name: Title: SHAREHOLDER: SAMANTHA INVESTORS, LLC, a Massachusetts limited liability company By: --------------------------------- Name: Title: 26 EX-10.6 8 PREFERRED STOCK CONVERSION AGREEMENT 1 EXHIBIT 10.6 ================================================================================ ODWALLA, INC. PREFERRED STOCK CONVERSION AGREEMENT Dated as of April 24, 2000 ================================================================================ 2 TABLE OF CONTENTS
Page ---- 1. Conversion of Preferred Stock and Cancellation of Warrant........................... 1 2. Tax Treatment....................................................................... 2 3. Closing............................................................................. 2 4. Closing Conditions.................................................................. 2 5. Representations and Warranties of Catterton......................................... 3 5.1 Authorization................................................................ 3 5.2 Disclosure of Information.................................................... 3 5.3 Status....................................................................... 3 5.4 Investment Intent; Certain Restrictions...................................... 4 5.5 Restricted Securities........................................................ 4 6. Representations and Warranties of the Company....................................... 4 6.1 Authorization................................................................ 4 6.2 Private Placement............................................................ 5 7. Other Matters....................................................................... 5 7.1 Limitation on Conversion of Preferred Stock.................................. 5 7.2 Restrictive Legend........................................................... 5 7.3 California Securities Laws................................................... 5 8. Termination......................................................................... 6 8.1 General...................................................................... 6 8.2 Effect of Termination........................................................ 6 8.3 Exclusivity of Termination Rights............................................ 6 9. Miscellaneous....................................................................... 6 9.1 Further Assurances........................................................... 6 9.2 Fees and Expenses............................................................ 6 9.3 Attorneys' Fees.............................................................. 6 9.4 Governing Law; Arbitration................................................... 6 9.5 Successors and Assigns....................................................... 7 9.6 Entire Agreement............................................................. 7
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Page ---- 9.7 Separability................................................................. 7 9.8 Amendments................................................................... 7 9.9 Notices...................................................................... 8 9.10 Publicity and Use of Confidential Information................................ 8 9.11 Counterparts................................................................. 9 9.12 Delays or Omissions; Waivers................................................. 9 9.13 Remedies Cumulative; Specific Performance.................................... 9 9.14 Headings..................................................................... 10 9.15 Construction................................................................. 10
ii 4 ODWALLA, INC. PREFERRED STOCK CONVERSION AGREEMENT THIS PREFERRED STOCK CONVERSION AGREEMENT (the "Agreement") is entered into as of April 24, 2000, by and between ODWALLA, INC., a California corporation (the "Company"), and CATTERTON-SIMON PARTNERS III, L.P., a Delaware Limited Partnership ("Catterton"). RECITALS A. The Company, Orange Acquisition Sub, a Maine corporation and wholly owned subsidiary of the Company ("Merger Sub"), Fresh Samantha, Inc., a Maine corporation ("Samantha"), and the other signatories thereto, have entered into that certain Agreement and Plan of Merger, dated as of February 2, 2000 (the "Merger Agreement"), to effectuate the merger (the "Merger") of Merger Sub with and into Samantha, with Samantha as the surviving corporation and wholly owned subsidiary of the Company. B. Pursuant to that certain Stock and Warrant Purchase Agreement, dated as of January 29, 1999 (the "Purchase Agreement"), by and between the Company and Catterton, Catterton purchased (i) 1,000,000 shares of the Company's Series A Preferred Stock (the "Preferred Stock") convertible into the Common Stock of the Company (the "Common Stock") on a 1:1 basis, and (ii) a Warrant, dated as of February 10, 1999, to purchase 75,000 shares of the Company's Common Stock at $10.00 per share (the "Warrant"). C. Pursuant to the dividend preference of the Preferred Stock, Catterton has received stock dividends in the amount of 74,666 shares of Preferred Stock. D. In connection with the Merger, Catterton and U.S. Equity Partners, L.P. (and its affiliates) have entered into that certain Stock Purchase Agreement, dated as of February 12, 2000, pursuant to which Catterton shall purchase an additional 160,128 shares of Common Stock. E. Pursuant to the terms of the Merger, the obligation of the parties to consummate the Merger is subject to, among other things, both the conversion of the Preferred Stock into Common Stock and the cancellation of the Warrant. AGREEMENT The Company and Catterton, intending to be legally bound, agree as follows: 1. CONVERSION OF PREFERRED STOCK AND CANCELLATION OF WARRANT. In consideration of both the conversion of the Preferred Stock into Common Stock and the cancellation of the Warrant pursuant this Section 1, and subject to the terms and conditions hereof, the approval of the shareholders of the Company and the amendment of the Certificate of Determination, filed January 26, 1999, setting forth the preference and rights of the Preferred Stock (the "Certificate"), at the Closing (a) the 1,074,666 shares of Preferred Stock presently 1 5 held by Catterton shall be converted into 1,333,333 shares of Common Stock pursuant to a conversion ratio of 1:1.2407, and (b) the Warrant shall be cancelled and be of no further force and effect. 2. TAX TREATMENT. For tax purposes, the parties hereto acknowledge and agree that the transactions contemplated by this Agreement (the "Transactions") shall be treated as a recapitalization in accordance with Section 368(a)(1)(E) of the Internal Revenue Code of 1986, as amended. 3. CLOSING (a) The closing (the "Closing") shall take place at the offices of Morrison & Foerster LLP, 425 Market Street, San Francisco, California 94105, at 10:00 a.m. (Pacific time) contemporaneous with the Merger Closing Date (as defined below) or on such other date or at such other place or time as the Company and Catterton may mutually agree (such date is hereinafter referred to as the "Closing Date"). (b) At the Closing: (i) Catterton will deliver: (i) the stock certificate(s) representing the Preferred Stock; (ii) the Warrant, marked "CANCELLED;" and (iii) any other documents and agreements reasonably requested by the Company to be delivered at the Closing; and (ii) the Company shall deliver: (i) certificates representing the Common Stock to be issued to Catterton pursuant to this Agreement in proper form for transfer; and (ii) the other documents and agreements required hereunder to be delivered by the Company at the Closing. (c) The "Merger Closing Date" shall refer to that date upon which all of the conditions set forth in Sections 4.1 and 4.2 of the Merger Agreement, other than the condition requiring the conversion of the Preferred Stock held by Catterton into Common Stock, are satisfied or waived. 4. CLOSING CONDITIONS. Each of the Company's obligation to issue the Common Stock at the Closing, and Catterton's obligations to convert the Preferred Stock into Common Stock and cancel the Warrant at the Closing, are subject to the satisfaction of the following conditions: (a) the amendment to the Certificate, substantially in the form attached hereto as Exhibit A, shall have been accepted for filing by the Secretary of State of the State of California; (b) the Merger shall have been consummated pursuant to all of the material terms and conditions contained in the Merger Agreement, except (i) for the condition requiring the conversion of the Preferred Stock held by Catterton into Common Stock, and (ii) with the consent of Catterton (which consent shall not be unreasonably withheld), to the extent (A) any 2 6 change in the terms and conditions of the Merger Agreement benefit the Company, or (B) the waiver or non-satisfaction of a condition contained in the Merger Agreement is for the benefit of the Company; and (c) neither the consummation nor the performance of the Transactions will, directly or indirectly (with or without notice or lapse of time), contravene or conflict with or result in a violation of, or cause a material adverse effect on the condition (financial or otherwise), assets, liabilities, obligations, business, properties, prospects or results of operations of the Company as presently conducted or as proposed to be conducted, together with its subsidiaries taken as a whole, as a result of, specifically, (i) a change in any applicable legal requirement after the date of this Agreement or any federal or state judgment, order, writ, decree, statute or regulation of any court, regulatory body or administrative agency or other governmental body applicable to the Company (an "Order") issued after the date of this Agreement, or (ii) any legal requirement or Order that is proposed after the date of this Agreement by or before any governmental body. 5. REPRESENTATIONS AND WARRANTIES OF CATTERTON. Catterton hereby represents and warrants to the Company that: 5.1 AUTHORIZATION. Catterton has full power and authority to enter into this Agreement, and this Agreement constitutes the valid and legally binding obligation of Catterton, enforceable against Catterton in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors' rights generally, and (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies. 5.2 DISCLOSURE OF INFORMATION. Catterton further represents that it has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the conversion of the Preferred Stock and the business, properties, prospects and financial condition of the Company. 5.3 STATUS. (a) Catterton is an "accredited investor" as that term is defined in Rule 501(a) of Regulation D of the Securities Act. (b) Catterton, by reason of its business and financial experience has such knowledge, sophistication and experience in financial and business matters and in making investment decisions of this type that it is capable of (i) evaluating the merits and risks of an investment in the Common Stock of the Company and making an informed investment decision, (ii) protecting its own interest, and (iii) bearing the economic risk of such investment for an indefinite period of time. 3 7 5.4 INVESTMENT INTENT; CERTAIN RESTRICTIONS. (a) Catterton is acquiring the Common Stock for investment for its own account, not as a nominee or agent and not with the view to, or any intention of, a resale or distribution thereof, in whole or in part, or the grant of any participation therein. Catterton understands that the Common Stock has not been, and will not be, registered under the Securities Act or state securities laws by reason of specific exemptions from the registration provisions of the Securities Act and applicable state securities laws that depend upon, among other things, the bona fide nature of Catterton's investment intent and the accuracy of Catterton's representations as set forth in this Section 5. Catterton has not been formed for the specific purpose of acquiring the Common Stock. Catterton further understands that, other than pursuant to that certain Shareholders' Rights Agreement, to be entered into on the Merger Closing Date by and among the Company, Catterton and the other signatories thereto, the Company shall have no obligation to register the Common Stock under the Securities Act or any state securities laws or to take any action that would make available any exemption from the registration requirements of such laws. Catterton hereby acknowledges that because of the restrictions on transfer and assignment of the Common Stock, Catterton may have to bear the economic risk of the investment in the Common Stock for an indefinite period of time. (b) Catterton will observe and comply with the Securities Act and the rules and regulations promulgated thereunder, as now in effect and as from time to time amended, in connection with any offer, sale, pledge, transfer or other disposition of the Common Stock. 5.5 RESTRICTED SECURITIES. Catterton understands that the shares of Common Stock issuable by the Company upon conversion of the Preferred Stock are characterized as "restricted securities" under the federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the Securities Act only in certain limited circumstances. In this connection, Catterton represents that it is familiar with Rule 144, as presently in effect, and understands the resale limitations imposed hereby and by the Securities Act. 6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby represents and warrants to Catterton that: 6.1 AUTHORIZATION. The Company has full power and authority to enter into this Agreement, and this Agreement constitutes the valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors' rights generally, and (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies. 4 8 6.2 PRIVATE PLACEMENT. The offer, sale and issuance of the Common Stock upon conversion of the Preferred Stock as contemplated by this Agreement is exempt from the registration requirements of the Securities Act of 1933, as amended (the "Securities Act") and state securities "blue sky" laws, and neither the Company nor any authorized agent acting on its behalf will take any action hereafter that would cause the loss of such exemptions. 7. OTHER MATTERS. 7.1 LIMITATION ON CONVERSION OF PREFERRED STOCK. The parties hereto agree and understand that they are entering into this Agreement in connection with the Merger, and therefore Catterton covenants and agrees that, notwithstanding the acceptance by the Secretary of State of the State of California of the aforementioned amendment to the Certificate, Catterton shall only convert the Preferred Stock at the higher conversion ratio contained in such amendment pursuant to the terms of this Agreement in connection with the consummation of the Merger. 7.2 RESTRICTIVE LEGEND. All certificates representing the Common Stock deliverable to Catterton pursuant to this Agreement, and any certificates subsequently issued with respect thereto or in substitution therefor, shall bear the following legend: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS PURSUANT TO THE TERMS specified in thAT certain SHAREHOLDERS' rights agreement, dated as of APRIL __, 2000. copIES of such Agreements may be obtained froM ODWALLA, INC. without charge, by the holder of this certificate upon written request therefor. 7.3 CALIFORNIA SECURITIES LAWS. THE SALE OF THE SECURITIES THAT ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION FOR SUCH SECURITIES PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT FROM QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO EXEMPT. 5 9 8. TERMINATION. 8.1 GENERAL. This Agreement may be terminated prior to Closing by the mutual consent of the Company and Catterton. 8.2 EFFECT OF TERMINATION. If this Agreement is terminated pursuant to Section 8.1, all further obligations of the parties under this Agreement shall terminate provided, further, that Sections 9.2, 9.3, 9.4, 9.9 and 9.10 shall survive the termination of this Agreement. 8.3 EXCLUSIVITY OF TERMINATION RIGHTS. Except to the extent termination occurs due to the bad faith of the other party, the termination rights and obligations provided in this Section 8 shall be deemed to be exclusive. The parties shall not have any other or further liabilities to or with respect to one another by reason of this Agreement or its termination. 9. MISCELLANEOUS. 9.1 FURTHER ASSURANCES. Each party hereto shall execute and/or cause to be delivered to each other party hereto such instruments and other documents, and shall take such other actions, as such other party may reasonably request (prior to, at or after the Closing) for the purpose of carrying out or evidencing any of the Transactions. 9.2 FEES AND EXPENSES. The Company shall bear the reasonable costs and expenses with respect to the negotiation, execution and delivery of this Agreement and in connection with the Transactions, including any transfer, recording or similar taxes levied as a result of the consummation of the Transactions. 9.3 ATTORNEYS' FEES. If any legal action or other legal proceeding (including arbitration) relating to the Transactions or the enforcement of any provision of any of this Agreement is brought against any party hereto, the person presiding over such action or other proceeding may award reasonable attorneys' fees, costs and disbursements to the prevailing party (in addition to any other relief to which the prevailing party may be entitled). 9.4 GOVERNING LAW; ARBITRATION. (a) This Agreement is to be construed in accordance with and governed by the laws of the State of California (as permitted by Section 1646.5 of the California Civil Code or 6 10 any similar successor provision), without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the State of California to the rights and duties of the parties. (b) Any controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its then existing Commercial Arbitration rules and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator shall be appointed by mutual agreement of the Company and Catterton involved in such controversy or claim, but, if the Company and Catterton fail to agree, the arbitrator shall be appointed by the American Arbitration Association in accordance with its then existing rules. The place of the arbitration shall be San Francisco, California and the governing law shall be the laws of the State of California in accordance with Section 9.4(a) of this Agreement. 9.5 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto and shall inure to the benefit of and be enforceable by each person who shall be a holder from time to time of the Common Stock to be issued pursuant to this Agreement. None of the parties hereto may assign any of its or their rights or obligations hereunder to any other party (by contract, operation of law or otherwise) without the prior written consent of the other, which consent shall not be unreasonably withheld, and any attempted assignment in violation thereof shall be void and of no effect. 9.6 ENTIRE AGREEMENT. This Agreement constitutes the full and entire understanding and agreement among the parties thereto with regard to the subjects hereof and supersede all prior agreements and understandings among or between any of the parties relating to the subject matter hereof and thereof. 9.7 SEPARABILITY. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, unless such provision is material to the terms of this Agreement, in which case the Company and Catterton shall in good faith agree upon such amendments as are necessary to restore the original intent and arrangement between the parties. 9.8 AMENDMENTS. This Agreement may be amended or modified only upon the written consent of the Company and Catterton. Any amendment or modification effected pursuant to this Section 9.8 shall be binding upon the Company and Catterton. 7 11 9.9 NOTICES. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in writing and shall be deemed properly delivered and given (a) on the date delivered or given, when delivered or given by hand or by telecopier during business hours, (b) one business day after being delivered or given by courier or next-day express delivery service, or (c) two business days after being delivered or give by registered mail to the address set forth beneath the name of such party below (or to such other address or telecopier number as such party shall have specified in a written notice given to the other parties hereto): if to the Company: Odwalla, Inc. 120 Stone Pine Road Half Moon Bay, CA 94019 Attention: D. Stephen C. Williamson Telecopier: (650) 712-5967 with a copy to: Morrison & Foerster LLP 425 Market Street San Francisco, California 94105 Attention: Robert Townsend, Esq. Telecopier: (415) 268-7522 if to Catterton-Simon Partners: Greenwich Office Park Greenwich, Connecticut 06830 Attention: Craig Sakin Telecopier: (203) 629-4903 with copies to: Morgan, Lewis & Bockius LLP 101 Park Avenue New York, NY 10178-0060 Attention: Philip H. Werner Telecopier: (212) 309-6273 9.10 PUBLICITY AND USE OF CONFIDENTIAL INFORMATION. (a) Notwithstanding anything to the contrary contained in any agreement among the parties hereto, the Company shall have the right to disclose the terms of this Agreement through the use of printed offering materials or otherwise or as otherwise required by applicable legal requirements, in connection with the preparation of a proxy statement (the "Proxy 8 12 Statement") in connection with the solicitation by the Board of Directors of the Company of the affirmative vote of a majority of the outstanding Common Stock and Preferred Stock to approve the Merger and related matters. (b) Neither Catterton, on the one hand, nor the Company, on the other hand, shall issue or disseminate any press release or other publicity concerning any of the Transactions, or permit any press release or other publicity concerning any of the Transactions to be issued or otherwise disseminated on its behalf without the prior written consent of Catterton, in the case of the Company, or the Company, in the case of Catterton; provided, however, that the Company and Catterton may disclose or disseminate such information as required by any applicable law or rule to which the Company or the Catterton are subject, including the Securities Exchange Act of 1934, as amended, and the rules of the National Association of Securities Dealers. 9.11 COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. 9.12 DELAYS OR OMISSIONS; WAIVERS. (a) No failure on the part of any person to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any person in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise or waiver of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. (b) No person shall be deemed to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such person; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given. 9.13 REMEDIES CUMULATIVE; SPECIFIC PERFORMANCE. (a) All remedies, either under this Agreement or by law or otherwise afforded to the parties hereto, shall be cumulative and not alternative. (b) Each of the parties hereto agrees that if the conditions to such party's obligation to consummate the Transactions have been satisfied as set forth in Section 4, as the case may be, and such party nonetheless refuses to consummate the Transactions, then the other party shall be entitled (in addition to any other remedy that may be available to it) to (i) a decree or order of specific performance or mandamus to enforce the observance and performance of such obligation to consummate the Transactions, and (ii) an injunction restraining such non-performance. 9 13 9.14 HEADINGS. The headings contained in this Agreement are for convenience of reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement. 9.15 CONSTRUCTION. (a) For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include the masculine and feminine genders. (b) The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement. (c) As used in this Agreement, the words "include" and "including," and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words "without limitation." (d) Except as otherwise specified, all references in this Agreement to "Sections" are intended to refer to Sections of this Agreement. 10 14 IN WITNESS WHEREOF, the parties hereto have executed this PREFERRED STOCK CONVERSION AGREEMENT as of the date set forth in the first paragraph hereof. COMPANY: ODWALLA, INC., a California corporation By: ------------------------------------- Name: D. Stephen C. Williamson Title: Chief Executive Officer CATTERTON-SIMON PARTNERS III, L.P., a Delaware limited partnership By: ------------------------------------- Name: Craig Sakin Title: Authorized Person 11 15 EXHIBIT A AMENDMENT TO CERTIFICATE OF DETERMINATION OF SERIES A PREFERRED STOCK 12 EX-10.7 9 LETTER AGREEMENT, DATED MAY 1, 2000 1 EXHIBIT 10.7 BAIN CAPITAL FUND VI, L.P. Two Copley Place Boston, MA 02116 May 1, 2000 Mr. Stephen Williamson, CEO Odwalla, Inc. 120 Stone Pine Road Half Moon Bay, CA 94019 Mr. Craig Sakin Catterton-Simon Partners III, L.P. 9 Greenwich Office Park Greenwich, CT 06830 Re: Working Capital Adjustment Agreement dated as of May 1, 2000 Dear Gentlemen: I refer to the: (i) Working Capital Adjustment agreement (the "Working Capital Agreement"), entered into as of May 1, 2000, by and among, Odwalla, Inc. ("Odwalla"), Fresh Samantha, Inc. ("Fresh Samantha") and certain individuals and entities set forth therein; and (ii) the Shareholders Rights Agreement (the "Rights Agreement") to be entered into on May 2, 2000, by and among Odwalla, Samantha Investors, LLC and certain other individuals and entities set forth on Schedule 1 attached thereto. Capitalized words used herein without definition are as defined in the Rights Agreement. Pursuant to Section 4.1(b)(i) of the Rights Agreement, to the extent additional "independent directors" are required to serve on Odwalla's Board of Directors to fulfill the rules and regulations promulgated by the NASD and for so long as the Bain Shareholders and their Permitted Transferees hold at least twenty percent (20%) of the issued and outstanding Common Stock of Odwalla, the Odwalla Board of Directors shall nominate one independent member of Odwalla's Board of Directors as designated by the Bain Shareholders. Notwithstanding the foregoing, in consideration of the settlement of the working capital dispute as reflected in the Working Capital Agreement, as long as 1 2 Catterton-Simon Partners III, L.P. ("Catterton") holds at least five percent (5%) of the issued and outstanding Common Stock of Odwalla, the Bain Shareholders hereby agree that commencing as of the effective time of the Merger and for so long as the Bain Shareholders have the right to designate an independent director for nomination to Odwalla's Board of Directors pursuant to Section 4.1(b)(i) of the Rights Agreement, the Bain Shareholders will, prior to nominating such director, provide written notice of the proposed nominee to Catterton, and shall only designate such person for nomination with Catterton's approval in the manner set forth below, which approval shall not be unreasonably withheld. The Company, Catterton and the Bain Shareholders agree and understand the aforementioned right of Catterton to approve such proposed designee(s) shall not apply to an individual already serving on Odwalla's Board. After the date hereof, if Catterton's approval shall be required prior to designating a person to serve on Odwalla's Board of Directors pursuant to Section 4.1(b)(i) of the Rights Agreement, Catterton shall be deemed to have approved such person unless, within six (6) business days of the giving of written notice to Catterton as provided in the previous paragraph, it shall have given the Bain Shareholders written notice that it does not approve of such person, which notice shall include the reasons for such disapproval . The giving of all notices hereunder shall be governed by the provisions set forth in Section 6.9 of the Rights Agreement. If Catterton shall have given the Bain Shareholders notice that it does not approve a designee for nomination to the Odwalla Board of Directors as provided in the previous paragraph, (i) the Bain Shareholders shall have the right to propose additional designee(s) and (ii) Odwalla shall not take any action, or suffer any action to be taken, to elect as an additional director any person not designated by the Bain Shareholders, unless, based upon a written opinion of counsel, which counsel is reasonably acceptable to the Bain Shareholders, Odwalla determines that the failure to elect an additional "independent director" would be reasonably likely to result in Odwalla's common stock being delisted from the NASDAQ National Market within 30 calendar days. The Company hereby agrees that it shall take all actions (including, without limitation, actions to satisfy the rules and regulations promulgated by the NASD) to prevent such delisting without electing an additional "independent director" not designated by the Bain Shareholders. [The remainder of this page intentionally left blank] 2 3 If the foregoing correctly sets forth our understanding and agreement, please so indicate by signing a copy of this Letter Agreement in the space provided below. Very truly yours, BAIN CAPITAL FUND IV, L.P. By: ------------------------------- Name: ----------------------------- Title: ---------------------------- ACKNOWLEDGED AND AGREED: ODWALLA, INC. By: ------------------------------- Name: ----------------------------- Title: ---------------------------- CATTERTON-SIMON PARTNERS III, L.P. By: ------------------------------- Name: ----------------------------- Title: ---------------------------- 3 EX-99 10 PRESS RELEASE, DATED MAY 3,2000 1 EXHIBIT 99 MEDIA CONTACT: Karen Lucas FOR IMMEDIATE RELEASE Odwalla, Inc. 650) 712-5578 INVESTOR CONTACT: Jim Steichen Odwalla, Inc. (650) 712-5517 ODWALLA COMPLETES MERGER WITH FRESH SAMANTHA (Half Moon Bay, Calif., May 3, 2000) - Odwalla, Inc. (NASDAQ: ODWA) announced today the completion of its merger with Saco, Maine based Fresh Samantha, Inc. Odwalla is the national leader in the super premium juice category and has strengthened its position with the merger with Fresh Samantha. Simultaneous with the merger, Odwalla also strengthened its financial position through the sale of common stock to Catterton-Simon Partners and Wasserstein Perella's U.S. Equity Partners Fund. Odwalla now has the support of three major equity sponsors in Bain Capital, Catterton-Simon Partners and Wasserstein Perella. "The West Coast leader Odwalla and East Coast leader Fresh Samantha are joining forces. Both Odwalla and Fresh Samantha are innovative companies that share similar roots, values and energy. This combination will create a true national leader and will deliver nourishment coast to coast" said Stephen Williamson, chairman and chief executive officer. Odwalla, Inc. is the nation's leading brand of all-natural, super-premium juices and smoothies, dairy-free shakes, natural spring water and food bars serving thousands of accounts coast to coast from its production facility in Dinuba, California. As a brand of Odwalla, Fresh Samantha will continue to be the leading supplier of all natural, super premium fruit and vegetable juices, soy shakes, water, and frozen fruit bars from the facility in Saco, Maine. To learn more about the Odwalla and Fresh Samantha brands, please visit us at www.odwalla.com and at www.freshsamantha.com. # # # -----END PRIVACY-ENHANCED MESSAGE-----