Exhibit 10.2
AGREEMENT
AGREEMENT dated
as of the 8th day of July, 2009, by and among Seneca Foods
Corporation, a New York corporation (the "Company"), Carl Marks
Strategic Investments, L.P., a Delaware limited partnership, Nancy
Marks and Marjorie Boas ( all such parties, other than the Company,
referred to herein as the "Original Selling Shareholders"), 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 (all such parties, other
than the Original Selling Shareholders, referred to herein as the
"Additional Selling Shareholders" and, together with the Original
Selling Shareholders, the "Selling Shareholders").
RECITALS
:
A. The Company, the
Original Selling Shareholders, Uranus Fund, Ltd., CMCO, Inc., Edwin
S. Marks and Carl Marks Strategic Investments II LP previously
entered into a Registration Rights Agreement, dated as of June 22,
1998 (the "RR Agreement");
B. The Company and
the Original Selling Shareholders are the only remaining parties to
the RR Agreement;
C. The Original
Selling Shareholders have requested that the Company (i) effect the
registration under the Securities Act of the Original Selling
Shareholders' "Owned Shares" (as defined below) in connection with
the proposed Secondary Offering (as defined below) and (ii) permit
the Additional Selling Shareholders to also effect the registration
under the Securities Act of the Additional Selling Shareholders'
"Additional Owned Shares" (as defined below) in connection with the
proposed Secondary Offering; and
D. The parties hereto
have agreed to various provisions as set forth below concerning
their respective rights and obligations under the RR Agreement and
this Agreement in connection with such proposed Secondary
Offering.
TERMS OF
AGREEMENT :
NOW, THEREFORE,
in consideration of the premises and other good and valid
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Any capitalized
term used but not defined herein shall have the meaning given
thereto as set forth in the RR Agreement.
(a) Each Original
Selling Shareholder confirms to the Company that such Selling
Shareholder is the owner of the shares of the various classes or
series of classes of the Company's stock set forth on Schedule A
hereto (such shares owned by each applicable Original Selling
Shareholder referred to herein as the "Owned Shares"), and that
such Original Selling Shareholder does not own or control, and will
not own or control as of the date of the consummation of the
Secondary Offering, any other shares of the classes or series of
classes of the Company's stock set forth on Schedule A, other than
such Original Selling Shareholder's Owned Shares.
(b) Each Additional
Selling Shareholder confirms to the Company that such Additional
Selling Shareholder is the beneficial owner of the shares of the
various classes or series of classes of the Company's stock set
forth on Schedule B hereto (such shares owned by each applicable
Additional Selling Shareholder referred to herein as the
"Additional Owned Shares"), and that such Additional Selling
Shareholder (other than John Hancock Life Insurance Company and
John Hancock Variable Life Insurance Company) does not own or
control, and will not own or control as of the date of the
consummation of the Secondary Offering, any other shares of the
classes or series of classes of the Company's stock set forth on
Schedule B, other than such Additional Selling Shareholder's
Additional Owned Shares.
(a) Each Original
Selling Shareholder confirms that such Original Selling Shareholder
has requested (the "Registration Request") that (i) pursuant to the
provisions of Section 2.1(a) of the RR Agreement the Company effect
the registration under the Securities Act of (A) all of such
Original Selling Shareholder's Owned Shares which constitute Class
A Common Stock of the Company and (B) all shares of Class A Common
Stock of the Company issuable upon the conversion of Owned Shares
that are not currently Class A Common Stock of the Company to be
sold in an underwritten secondary offering (the "Secondary
Offering"), and (ii) the Company in connection with the Secondary
Offering also effect the registration under the Securities Act of
(A) all of Additional Selling Shareholders' Additional Owned Shares
which constitute Class A Common Stock of the Company and (B) all
shares of Class A Common Stock of the Company issuable upon the
conversion of Additional Owned Shares that are not currently Class
A Common Stock of the Company (collectively the "Offered
Securities").
(b) The Company and
each Selling Shareholder has agreed to take all actions necessary
to convert all shares of the Company’s capital stock being
sold in the Secondary Offering upon conversion which are not
currently Class A Common Stock of the Company into shares of Class
A Common Stock of the Company immediately prior to the consummation
of the Secondary Offering with respect to such shares pursuant to
the terms of the underwriting agreement between the Company, the
Selling Shareholders and Merrill Lynch, Pierce, Fenner & Smith,
Inc. and Piper Jaffray & Co. as representatives of the several
underwriters named therein related to the Secondary Offering (the
"Underwriting Agreement");
(c) Each Original
Selling Shareholder agrees that the 30 day period referenced in
Section 2.1(a)(ii) of the RR Agreement has terminated as of the
date of this Agreement;
(d) The Company and
each Selling Shareholder agrees that no other securities of the
Company shall be included in the Secondary Offering other than the
Offered Securities unless the Company and the Original Selling
Shareholders shall have consented in writing to the inclusion of
such other securities;
(e) Notwithstanding
anything to the contrary set forth in the RR Agreement, and subject
to the provisions of Section 3(f) below, each of the Selling
Shareholders shall severally be responsible for the payment of a
pro rata portion of the Registration Expenses arising in connection
with the Secondary Offering allocated based on the respective
number of Offered Securities of each of the Selling Shareholders
sold in the Secondary Offering. The Company shall pay all fees and
expenses other than Registration Expenses, if any, incident to the
Company’s performance or compliance with the RR Agreement in
connection with the Secondary Offering. All Registration
Expenses payable by a Selling Shareholder hereunder shall be
promptly paid by such Selling Shareholder upon presentment of an
invoice setting forth such Registration Expenses in reasonable
detail; and
(f) If the Secondary
Offering is not consummated for any reason (i) the Company shall be
responsible for the payment of (a) the fees and disbursements of
counsel for the Company and of it
