exv10w1



 





Exhibit
10.1




FIFTH EXTENSION

TO

STOCKHOLDERS’ AGREEMENT




     This FIFTH EXTENSION TO STOCKHOLDERS’ AGREEMENT (the “Fifth Extension”) is hereby entered into
as of the 26th day of December, 2006, by and between Lifeway Foods, Inc., an Illinois
corporation (the “Company”) and DS Waters, L.P., a Delaware limited partnership (“DSW”)
(“Stockholder”). Unless otherwise defined herein, all capitalized terms used herein shall have the
same meaning ascribed to those terms in the Stockholders’ Agreement.



     WHEREAS, Danone Foods, Inc., a Delaware corporation (“DFI”) executed that certain Stock Power
dated November 10, 2005, transferring all the shares of the Company which were held by DFI as of
such date that are the subject of that certain Stockholders’ Agreement by and among DFI and the
Company and certain other parties dated as of October 1, 1999, as amended on December 24, 1999 (as
amended and extended, the “Stockholders’ Agreement”) and as extended by that certain First
Extension to Stockholders’ Agreement dated September 28, 2004 (the “First Extension”) and by that
certain Second Extension to Stockholders’ Agreement dated October 29, 2004 (“Second Extension”) and
by that certain Third Extension to Stockholders’ Agreement dated December 30, 2004 (the “Third
Extension”), and by that certain Fourth Extension to Stockholders’ Agreement dated April
28th of 2006 (the “Fourth Extension”) are the subject of the Stockholders’ Agreement to
DSW;



     WHEREAS, DSW accepted such shares subject to the covenants and restrictions contained in the
Stockholders’ Agreement and DSW hereby agrees to be bound by its terms contained therein;



     WHEREAS, under the Fourth Extension, the Standstill Period and the operative period of Section
6.02 of the Stockholders’ Agreement (“Non-Compete Period”) expired on December 30, 2005; and



     WHEREAS, each of the Company and the Stockholders desires to further amend the Stockholders’
Agreement to extend the Standstill Period and the Non-Compete Period, with the specific exclusion
of the company, Stonyfield Farms, Inc. from any such obligation, of the Stockholders’ Agreement as
more fully provided in this Fifth Extension.



     NOW, THEREFORE, in consideration of the entry of the parties into this Fifth Extension and for
other good and valuable consideration, the receipt of which is acknowledged herein, the parties
hereto agree as follows:



     1. Acceptance of Terms of Stockholders’ Agreement; Acknowledgment. DSW represents to
Company that DSW is an Affiliate of DFI and that DSW has been assigned the Stockholders’ Agreement
and the shares of Company from DFI and, DSW further agrees to be bound by, and receive all the
benefits of, the terms and conditions of the Stockholders’ Agreement.



     2. Extension of Standstill Period. The Standstill Period shall be extended to include
any time during the period beginning on October 1, 1999 and ending at the close of business on
December 31, 2007 and during which the Stockholders Beneficially Owns 10% or more of the
outstanding shares of Common Stock on a Fully Diluted Basis.



 









 





     3. Extension of Non-Compete Period. The Non-Compete Period shall be extended to
include the period beginning on October 1, 1999 and ending at the close of business on December 31,
2007, with the exception that the Stonyfield Farms, Inc. entity shall be specifically excluded from
any and all non-compete obligations. The non-compete obligations shall apply only to kefir,
fromage frais and Greek Yogurt.



     4. Governing Law. This Fifth Extension shall be governed by and construed in
accordance with the laws of the State of Illinois.



     5. No Waiver of Other Rights. The execution, delivery and effectiveness of this Fifth
Extension shall not, except as expressly provided herein, operate as a waiver of any right, power
or remedy of any of the parties to the Stockholders’ Agreement.



     6. Counterparts. This Fifth Extension may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which counterparts
together shall constitute one and the same instrument.



[Signature Page Follows]




 









 








     IN WITNESS WHEREOF, this Fifth Extension is hereby executed as of the date first above
written.



	 	 	 
	LIFEWAY FOODS, INC.,

an Illinois corporation	 	
DS WATERS, L.P.,

a Delaware limited partnership
	 	 	
By: DS Waters General Partner, LLC, its

general partner

	By:  /s/ Julie Smolyansky

Name: Julie Smolyansky

Its: President	 	By:  /s/ Anthony Cicio

Name: Anthony Cicio

Its: Assistant Secretary