Exhibit 10.1
SECOND AMENDMENT
TO
SHAREHOLDERS
AGREEMENT
This Second
Amendment, dated as of July 8, 2009 amends the Shareholders
Agreement by and among Seneca Foods Corporation, a New York
corporation (the "Company") and the parties listed therein, dated
as of June 22, 1998, as amended by a First Amendment to
Shareholders Agreement dated as of June 30, 2002 (the "Shareholders
Agreement").
RECITALS
A. The Company has
entered into an Agreement of even date herewith (the "RR
Amendment") with Carl Marks Strategic Investments, L.P., Nancy
Marks, Marjorie Boas, Carl Marks Strategic Investments III, L.P.,
Nancy Marks 2003 GRAT, Nancy Marks 2009 CMS-GRAT, Carolyn Marks,
Mark and Susan Claster, Andrew and Carol Boas, Linda Katz,
Constance Marks, Laura Katz, James Miller, Richard Boas , John
Hancock Life Insurance Company and John Hancock Variable Life
Insurance Company concerning the rights and obligations of such
parties arising under a Registration Rights Agreement, dated as of
June 22, 1998, among the Company and certain of such parties (as
amended, the "RR Agreement"), including those relating to a
"Secondary Offering" (as defined in the RR Amendment) of certain of
the Company's securities; and
B. The parties hereto
have also agreed, in connection with the transactions contemplated
under the RR Amendment, to modify the terms of the Shareholders
Agreement as set forth below.
C. Capitalized terms
used by not defined herein shall have the meaning set forth in the
RR Agreement.
TERMS OF THIS
AGREEMENT
1. Notwithstanding
anything to the contrary set forth in the Shareholders Agreement,
the Shareholders Agreement shall automatically and immediately
terminate and be of no further force and effect if the "Selling
Shareholders" consummate the sale of any "Owned Shares" or
"Additional Owned Shares" (as respectively defined in the RR
Amendment) in the Secondary Offering (an “Automatic
Termination”).
2. Each of the
"Shareholders" (as defined in the Shareholders Agreement)
represents and warrants to the Company and the other Shareholders
that there are no successors to or assignees of the rights of such
Shareholder arising under the Shareholders Agreement.
3. In the event of an
Automatic Termination pursuant to the provisions of Section 1 of
this Second Amendment, the "Investor Designees" (as defined in
Section 5.2 of the Shareholders Agreement) shall immediately resign
from all positions held with the Company, including their positions
as members of the board of directors and any committee of the board
of directors of the Company. By executing this
Agreement, each of the two current "Investor Designees" (Andrew M.
Boas and James F. Wilson) hereby irrevocably tender their
respective resignations from all such positions with the Company
effective upon the date of an Automatic Termination pursuant to
Section 1 of this Second Amendment; provided, however, that such
resignations shall not take effect unless and until such time as an
Automatic Termination takes effect in accordance with the
provisions of Section 1 of this Second Amendment.
4. This Second
Amendment may be executed and delivered via facsimile or e-mail
transmission; and may be executed in counterparts, each of which
shall be an original and all of which shall constitute one and the
same instrument.
5. This Second
Amendment has been negotiated, executed and delivered in the State
of New York and shall be governed by and construed in accordance
with the laws of the State of New York, without regards to
principles of conflicts of law.
6. This Second
Amendment, together with the Shareholders Agreement (including the
schedules thereto) is intended by the parties as a final expression
of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein and
therein. &
