1
EXHIBIT 10.3
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement") is made as of May 9,
1997, by and among Colorado Prime Acquisition Corp., a Delaware Corporation,
(the "Company"), ▇▇▇▇▇▇ Equity Investors III, L.P., a Delaware limited
partnership ("▇▇▇▇▇▇"), and certain individuals listed on Exhibit A hereto
(collectively, such individuals are referred to herein as the "Managers" and
together with ▇▇▇▇▇▇ are referred to herein as the "Buyers").
W I T N E S S E T H:
WHEREAS, ▇▇▇▇▇▇ and KPC Holdings Corporation, a Delaware corporation
("Holdings"), are parties to a Merger Agreement dated as of March 25, 1997 (the
"Merger Agreement");
WHEREAS, pursuant to the Merger Agreement the Company is to be merged with
and into Holdings, following which Holdings will be the surviving corporation,
the existing holders of capital stock of Holdings other than the Company are to
receive cash upon the surrender of their shares of capital stock of Holdings,
each share of Common Stock (as defined below) and Preferred Stock (as defined
below) of the Company will be converted into a share of common stock or
preferred stock of Holdings, as the case may be, and Holdings will be renamed
Colorado Prime Holdings, Inc. (the "Merger");
WHEREAS, in connection with the Merger, the Company is to be capitalized
by the Equity Contribution (as defined below) of ▇▇▇▇▇▇ and the Managers;
WHEREAS, the Company has 300,000 shares of authorized common stock, par
value $0.01 per share, (the "Common Stock") and 45,000 shares of authorized 15%
payable-in-kind redeemable preferred stock, par value $0.01 per share, (the
"Preferred Stock");
WHEREAS, subject to the terms and the conditions specified herein, the
Buyers desire to purchase from the Company, and the Company desires to sell to
the Buyers, 150,000 shares of Common Stock and 10,000 shares of Preferred Stock,
(such shares of Common Stock and Preferred Stock are referred to herein as the
"Shares"); and
2
-2-
WHEREAS, in connection with the purchase by ▇▇▇▇▇▇ of the Preferred Stock,
the Company shall cause Holdings, upon the consummation of the Merger, to issue
to ▇▇▇▇▇▇ a warrant representing the right to acquire 26,471 shares of Common
Stock of Holdings upon the terms and conditions as more fully set forth in form
of Warrant Certificate (as defined below);
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, representations, warranties and covenants contained herein and
intending to be legally bound hereby, the Parties hereto hereby agree as
follows:
ARTICLE 1.
DEFINITIONS
In addition to other terms defined elsewhere herein, the following terms
shall have the meanings set forth below when used herein:
1.1. "Affiliate" with respect to a Party, shall mean (i) any Person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such Party or (ii) a general
partner, limited liability company manager or similar control person of such
Party.
1.2. "Closing" shall mean the closing described in Article 6 hereof at
which the Parties shall consummate the transactions contemplated hereby.
1.3. "Closing Date" shall mean the date that the Closing occurs.
1.4. "Common Stock Purchase Price" shall mean, (i) with respect to ▇▇▇▇▇▇,
the dollar amount set forth opposite ▇▇▇▇▇▇'▇ name on Exhibit A hereto, and (ii)
with respect to each Manager, the dollar amount or the number of shares of
existing Management Common Stock of Holdings opposite such Manager's name on
Exhibit A hereto
3
-3-
1.5. "Employment Agreements" shall mean the employment agreements, each
dated May 9, 1997, by and between Colorado Prime Corporation, a Delaware
corporation and a wholly-owned subsidiary of Holdings, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
1.6. "Encumbrance" shall mean any title defect, conflicting claim of
ownership, order, decree, judgment, stipulation, settlement, attachment,
restriction, lien, pledge, right of first refusal, option, charge, security
interest, mortgage, reservation, lease or any other encumbrance of any nature
whatsoever.
1.7. "Equity Contribution" shall mean the subscription of (i) Common Stock
and Preferred Stock pursuant to the terms and conditions of this Agreement by
▇▇▇▇▇▇ in exchange for the Common Stock Purchase Price and Preferred Stock
Purchase Price of ▇▇▇▇▇▇ and (ii) Common Stock pursuant to the terms and
conditions of this Agreement by the Managers in exchange for the Common Stock
Purchase Price of each Manager.
1.8. "Governmental Entity" shall mean any federal, state, local or foreign
legislative authority, court, governmental agency or other regulatory, judicial
or administrative authority.
1.9. "Material Adverse Effect" shall mean, with respect to any Person, a
material adverse effect on (i) the consolidated business, results of operations,
financial condition or prospects of such Person or (ii) the ability of such
Person to consummate the transactions contemplated hereby.
1.10. "Parties" shall mean the Company, Holdings and each of the Buyers.
1.11. "Person" shall mean an individual, partnership, corporation, trust,
unincorporated organization, government or any department or agency thereof and
any other entity.
4
-4-
1.12. "Preferred Stock Purchase Price" shall mean $10,000,000.
1.13. "Related Agreements" shall mean the Merger Agreement, the
Shareholders' Agreement and Employment Agreements.
1.14. "Rights" shall mean warrants, options, rights, convertible
securities and other arrangements or commitments which obligate an entity to
issue or dispose of any of its capital stock, and stock appreciation rights,
performance units, repurchase rights and other similar stock-based rights
whether they obligate the issuer thereof to issue stock or other securities or
to pay cash.
1.15. "Securities Act" shall mean the Securities Act of 1933, as amended.
1.16. "Shareholders' Agreement" shall mean the Shareholders' Agreement
dated as of May 9, 1997 by and among ▇▇▇▇▇▇ Equity Investors III, L.P., Colorado
Prime Holding, Inc. and the Managers.
1.17. "Warrant Certificate" shall mean the warrant certificate attached
hereto as Exhibit B.
ARTICLE 2.
PURCHASE AND SALE
At the Closing, on the terms and subject to the conditions set forth
herein, the following actions shall occur simultaneously:
(i) The Company shall issue and sell to the Buyers, and each
Buyer shall purchase severally and not jointly, the number
of Shares set forth next to such Buyer's name on Exhibit A
at a price equal to such Buyer's Common Stock Purchase Price
and/or Preferred Stock Purchase Price, as the case may be;
(ii) (A) ▇▇▇▇▇▇ shall pay its Common Stock Purchase
5
-5-
Price and the Preferred Stock Purchase Price to the Company in
immediately available funds by wire transfer to the account
designated by the Company in writing at least two business
days prior to the Closing and (B) each Manager shall pay his
Common Stock Purchase Price to the Company by the delivery to
the Company of the stock certificates representing the shares
of Management Common Stock of Holdings set forth opposite such
Manager's name on Exhibit A, which stock certificates shall
either be (i) duly endorsed to the Company, (ii) endorsed in
blank by such Manager or (iii) accompanied by a duly executed
instrument of transfer separate from such certificate,
provided that such instrument of transfer shall be in form and
substance satisfactory to the Company;
(iii) The Company shall deliver to each Buyer stock certificates
representing the Shares purchased by such Buyer and shall take
and cause to be taken all actions necessary to transfer to
each Buyer good and valid title to the Shares purchased by
such Buyer and to record the issuance of such Shares to such
Buyer on the books and records of the Company; and
(iv) The Company shall cause Holdings to deliver to ▇▇▇▇▇▇ the
Warrant Certificate and shall take and cause to be taken all
actions necessary to transfer to ▇▇▇▇▇▇ good and valid title
to the Warrant Certificate and to record the issuance of such
Warrant Certificate to ▇▇▇▇▇▇ on the books and records of the
Company.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
6
-6-
The Company represents and warrants to the Buyers as follows:
3.1. CAPITAL STRUCTURE OF THE COMPANY
The authorized capital stock of the Company (the "Capital Stock") consists
solely of (i) 300,000 shares of Common Stock, of which none are issued and
outstanding and (ii) 45,000 shares of Preferred Stock, of which none are issued
and outstanding.
3.2. ORGANIZATION, STANDING AND AUTHORITY
The Company is a duly organized corporation, validly existing and in good
standing under the laws of the State of Delaware. The Company (i) has full
corporate power and authority to carry on its business as now conducted and (ii)
is duly licensed or qualified to do business in all jurisdictions of the United
States and foreign jurisdictions where its ownership or leasing of property or
the conduct of its business requires such licensing or qualification, except
where the failure to be so licensed or qualified would not have a Material
Adverse Effect on the Company.
3.3. AUTHORIZED AND EFFECTIVE AGREEMENT
(a) The Company has all requisite corporate power and authority to enter
into and perform all of its obligations under this Agreement and the Related
Agreements to which it is a party. The execution and delivery of this Agreement
and the Related Agreements to which the Company is a party, and the consummation
of the transactions contemplated hereby and thereby, have been duly and validly
authorized by all necessary corporate action in respect thereof on the part of
the Company. This Agreement has been, and each of the Related Agreements to
which the Company is a party, shall be executed and delivered by a duly
authorized agent of the Company. The Shares, when issued, sold and delivered in
accordance with this Agreement, shall be duly authorized, validly issued, fully
paid and nonassessable and will not have been issued in violation of any
preemptive rights. Upon consummation of the purchase of the Shares, the Buyers
will acquire from the Company good and marketable title to the Shares, free and
clear of all Encumbrances.
7
-7-
(b) Neither the execution and delivery of this Agreement or any of the
Related Agreements, nor consummation of the transactions contemplated hereby or
thereby, nor compliance by the Company with any of the provisions hereof or
thereof shall (i) conflict with or result in a breach of any provision of the
certificate of incorporation or bylaws (or similar charter documents) of the
Company, (ii) constitute or result in a breach of any term, condition or
provision of, or constitute a default under, or give rise to any right of
termination, cancellation or acceleration with respect to, or result in the
creation of any Encumbrance upon any property or asset of the Company pursuant
to, any note, bond, mortgage, indenture, license, lease, contract, agreement or
other instrument or obligation (other than Encumbrances to be granted pursuant
to the terms and conditions of that certain Credit Agreement dated as of May 9,
1997 by and among Colorado Prime Corporation, Holdings, Dresdner Bank AG, New
York and Cayman Branches, and certain other parties thereto (the "Credit
Agreement")), (iii) violate any order, writ, injunction, decree, statute, rule
or regulation applicable to the Company, except for such violations, rights,
breaches, Encumbrances or defaults which, either individually or in the
aggregate, will not have a Material Adverse Effect on the Company.
(c) No consent, approval or authorization of, or declaration, notice,
filing or registration with, any Governmental Entity (collectively,
"Governmental Authorizations") or any other Person, is required to be made or
obtained by the Company in connection with the execution, delivery and
performance of this Agreement or the Related Agreements or the consummation of
the transactions contemplated hereby or thereby, other than (i) any applicable
filings under federal or state securities laws, (ii) Governmental Authorizations
which have been made or obtained as of the date hereof and (iii) Governmental
Authorizations the failure of which to make or obtain would not have a Material
Adverse Effect on the Company.
8
-8-
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF BUYERS
Each Buyer hereby severally represents and warrants (but only with respect
to the representations and warranties in this Article applicable to such Buyer)
to the Company as follows:
4.1. ORGANIZATION, STANDING AND AUTHORITY OF ▇▇▇▇▇▇
▇▇▇▇▇▇ is duly organized as a limited partnership, validly existing and in
good standing under the laws of the State of Delaware. ▇▇▇▇▇▇ (i) has all
requisite partnership power and authority to carry on its business as now
conducted or proposed to be conducted and (ii) is duly licensed or qualified to
do business in all jurisdictions of the United States and foreign jurisdictions
where its ownership or leasing of property or the conduct of its business
requires such licensing or qualification, except where the failure to be so
licensed or qualified would not have a Material Adverse Effect.
4.2. AUTHORIZED AND EFFECTIVE AGREEMENT
(a) Each of the Managers has the legal capacity to enter into and perform
all of his obligations under this Agreement and the Related Agreements to which
such Manager is a party. Upon execution and delivery by each Manager of this
Agreement and each of the Related Agreements to which such Manager is a party,
the Agreement and each such Related Agreement shall constitute the legal, valid
and binding obligations of such Manager, enforceable against him in accordance
with its respective terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, reorganization, bulk sales, or
similar laws from time to time in effect which affect the enforcement of
creditors' rights generally and by general equity principles.
(b) ▇▇▇▇▇▇ has all requisite partnership power and authority to enter into
and perform all of its obligations under this Agreement. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have been duly
9
-9-
and validly authorized by all necessary partnership action in respect thereof on
the part of ▇▇▇▇▇▇. This Agreement, when executed and delivered by ▇▇▇▇▇▇, shall
be executed and delivered by a duly authorized agent of ▇▇▇▇▇▇ and shall
constitute a valid and binding obligation of ▇▇▇▇▇▇, enforceable against ▇▇▇▇▇▇
in accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, reorganization, bulk sales, or
similar laws from time to time in effect which affect the enforcement of
creditors' rights generally and by general equity principles.
(c) Neither the execution and delivery of this Agreement or the Related
Agreements to which such Buyer is a party, nor the consummation of the
transactions contemplated hereby or thereby, nor the compliance by any Buyer
with any of the provisions hereof, shall (i) conflict with or result in a breach
of such Buyer's constitutive documents (to the extent applicable), (ii)
constitute or result in a breach of any term, condition or provision of, or
constitute a default under, or give rise to any right of termination,
cancellation or acceleration with respect to, or result in the creation of any
Encumbrance upon any property or asset of such Buyer pursuant to, any note,
bond, mortgage, indenture, license, lease, contract, agreement or other
instrument or obligation, or (iii) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to such Buyer, except for such
violations, rights, breaches, Encumbrances or defaults which, either
individually or in the aggregate, will not have a Material Adverse Effect.
(d) No consent, approval or authorization of, or declaration, notice,
filing or registration with, any Governmental Entity or any other Person, is
required to be made or obtained by such Buyer in connection with the execution,
delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby, other than (i) any applicable filings under
federal or state securities laws or (ii) Governmental Authorizations which have
been made or obtained as of the date hereof and (iii) Governmental
Authorizations the failure of which to make or obtain would not have a Material
Adverse Effect on the Company.
10
-10-
4.3. ACCESS; SOPHISTICATION
Each Buyer has had an opportunity to ask questions and receive answers
concerning the terms and conditions of this Agreement and the Related Agreements
and has had full access to such other information concerning the Company,
Colorado Prime Corporation and Holdings and the transactions contemplated herein
and in the Related Agreements as such Buyer has requested. Each Buyer is an
"accredited investor," as such term is defined in Rule 501 under the Securities
Act. Each Buyer and such Buyer's respective agents and representatives have such
knowledge and experience in financial and business matters as to enable them to
utilize the information made available to them in connection with the
transactions contemplated hereby, to evaluate the merits and risks of an
investment in the Shares and to make an informed decision with respect thereto,
and such an evaluation and informed decision has been made. Each Buyer
acknowledges receipt of a copy of an Offering Memorandum dated May 6, 1997
relating to the issuance of certain senior Notes of Colorado Prime Corporation,
which Offering Memorandum contains information concerning the Merger, Holdings
and Colorado Prime Corporation.
4.4. INVESTMENT REPRESENTATION
Each Buyer is acquiring the Shares to be received by such Buyer at the
Closing for such Buyer's own account for investment only and not with a view to
making a distribution thereof within the meaning of the Securities Act. Each
Buyer agrees not to sell or transfer such Shares, except in accordance with the
terms of the Shareholders' Agreement and the legend set forth below. Each Buyer
is aware that the Shares have not been registered under the Securities Act or
any state or other jurisdiction's securities laws, and that the Shares must be
held indefinitely unless subsequently registered or an exemption from such
registration is available. Each Buyer acknowledges that investment in the Shares
involves substantial risks, including the risk of total loss of such Buyer's
investment in the Shares. Each Buyer represents that such Buyer (i) is able to
hold the Shares for an indefinite period of time; (ii) has adequate means, other
than the Shares or
11
-11-
funds invested therein, of providing for such Buyer's current and foreseeable
needs; (iii) has no foreseeable need to sell or otherwise dispose of any of the
Shares; and (iv) has sufficient net worth to sustain a loss of such Buyer's
entire investment in the Shares in the event such loss should occur. Each
Manager is a bona fide resident of the States of Connecticut, Florida,
Pennsylvania, Texas or New York and has no present intention of changing such
Manager's residence. Each Buyer understands and agrees that the certificate or
certificates representing the Shares to be received by such Buyer will bear a
legend substantially to the effect set forth below and that a stop transfer
order may be placed with respect thereto.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TRANSFER
RESTRICTIONS AND OTHER TERMS OF A SHAREHOLDERS' AGREEMENT DATED AS OF MAY
9, 1997, AMONG COLORADO PRIME HOLDINGS, INC. AND CERTAIN SHAREHOLDERS
THEREOF AND MAY NOT BE TRANSFERRED EXCEPT IN ACCORDANCE WITH SUCH
AGREEMENT. A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF
COLORADO PRIME CORPORATION AND WILL BE FURNISHED UPON REQUEST TO THE
HOLDER OF RECORD OF THE SHARES REPRESENTED BY THIS CERTIFICATE.
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE
SECURITIES LAW OF ANY JURISDICTION AND MAY NOT BE TRANSFERRED UNTIL (A) A
REGISTRATION STATEMENT UNDER SUCH SECURITIES ACT AND SUCH APPLICABLE
SECURITIES LAWS SHALL HAVE BECOME EFFECTIVE WITH REGARD THERETO OR (B) IN
THE OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY, REGISTRATION
UNDER SUCH SECURITIES ACT AND SUCH APPLICABLE SECURITIES LAWS IS NOT
REQUIRED IN CONNECTION WITH SUCH PROPOSED TRANSFER.
4.5. SPECIAL REPRESENTATIONS OF THE MANAGERS
In addition to the representations and warranties set forth above, each
Manager severally represents and warrants to the Company and to ▇▇▇▇▇▇ that such
Manager is, and on the Closing
12
-12-
Date will be, the sole record and beneficial owner of the shares of Management
Common Stock of Holdings set forth opposite such Manager's name on Exhibit A
hereto, free and clear of any Encumbrances, and that such Manager has and shall
have full power and authority to transfer, assign, sell and contribute such
shares of Management Common Stock of Holdings to the Company as contemplated by
this Agreement.
ARTICLE 5.
COVENANTS
5.1. COMPLIANCE
The Parties covenant and agree that between the date hereof and the
Closing, none of them shall take any action that would cause their
representations and warranties made herein not to be true and correct, in all
material respects, as of such Closing.
5.2. BEST EFFORTS
Subject to the terms and conditions of this Agreement, each Party shall
use its reasonable best efforts and shall cooperate with the other Parties as
promptly as practicable to take, or cause to be taken, all actions, and to do,
or cause to be done, all things necessary, proper or advisable under applicable
laws and regulations or otherwise to consummate, as soon as practicable, the
transactions contemplated hereby and by the Related Agreements.
ARTICLE 6.
CLOSING; CONDITIONS
6.1. CLOSING
The transactions contemplated by this Agreement shall be consummated at a
Closing to be held at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP or at such
other place as the Company and
13
-13-
the Buyers shall agree, on May 9, 1997 or such later date within 14 days
thereafter as shall be specified by the Company (the "Closing Date"). All
actions taken at the Closing shall be deemed to occur simultaneously, and no
document shall be deemed to be delivered until all documents are delivered.
Unless otherwise indicated, each document delivered at the Closing shall be
dated as of the Closing Date.
6.2. CONDITIONS TO THE OBLIGATIONS OF BUYERS
The Buyers' obligations under this Agreement are subject to the
satisfaction at or prior to the Closing of the following conditions, but
compliance with any such conditions may be waived by any Buyer:
(a) The Merger shall have been consummated in accordance with the terms
and conditions of the Merger Agreement and ▇▇▇▇▇▇, the Company and Holdings
shall have executed and delivered all Related Agreements to which they are
parties;
(b) The representations and warranties of the Company contained in this
Agreement shall be true and correct, in all material respects, at and as of the
Closing, and ▇▇▇▇▇▇, the Company and Holdings shall have performed and complied
with all the covenants and agreements and satisfied all the conditions, in all
material respects, required by this Agreement and Related Agreements, to be
performed or complied with or satisfied by ▇▇▇▇▇▇, the Company and Holdings at
or prior to the Closing;
(c) No order, judgment or decree shall have been issued restraining or
prohibiting the consummation of the transactions contemplated by this Agreement
or any of the Related Agreements. No inquiry, action or proceeding which, in the
opinion of ▇▇▇▇▇▇, is material shall have been instituted to restrain or
prohibit the consummation of the transactions contemplated by this Agreement or
any of the Related Agreements, or to challenge the validity of such transactions
or any part thereof, or seeking damages on account or as a result thereof; and
14
-14-
(d) All necessary Governmental Authorizations shall have been obtained and
all other requirements prescribed by law which are necessary to the consummation
of the transactions contemplated hereby or by any Related Agreement shall have
been satisfied.
6.3. CONDITIONS TO THE OBLIGATIONS OF COMPANY
The obligations of the Company under this Agreement are subject to the
satisfaction at or prior to the Closing of the following conditions, but
compliance with any such conditions may be waived by the Company:
(a) The Merger shall have been consummated in accordance with the terms
and conditions of the Merger Agreement and ▇▇▇▇▇▇, the Company, Holdings and all
of the Managers shall have executed and delivered all Related Agreements to
which they are parties;
(b) The representations and warranties of the Buyers contained in this
Agreement shall be true and correct, in all material respects, at and as of the
Closing, and the Buyers shall have performed and complied with all the covenants
and agreements and satisfied all the conditions, in all material respects,
required by this Agreement and the Related Agreements to be performed or
complied with or satisfied by the Buyers at or prior to the Closing;
(c) No order, judgment or decree shall have been issued restraining or
prohibiting the consummation of the transactions contemplated by this Agreement
or any of the Related Agreements; and
(d) All necessary Governmental Approvals shall have been obtained and all
other requirements prescribed by law which are necessary to the consummation of
the transactions contemplated hereby or by any Related Agreement shall have been
satisfied.
15
-15-
ARTICLE 7.
TERMINATION
7.1. TERMINATION
This Agreement may be terminated and the transactions contemplated hereby
abandoned at any time prior to the Closing, only as follows:
(a) By ▇▇▇▇▇▇ in writing, if the Managers have, in any material respect,
breached (i) any covenant or agreement contained herein or (ii) any
representation or warranty contained herein, and in either case if such breach
has not been cured by the earlier of 15 business days after the date on which
written notice of such breach is given to the Party committing such breach or
the Closing Date;
(b) By any Party in writing, if the Closing Date has not occurred by the
close of business on May 31, 1997, unless the failure of the Closing to occur by
such date shall be due to the failure of the Party seeking to terminate this
Agreement to perform or observe the covenants and agreements set forth herein;
or
(c) By ▇▇▇▇▇▇ in writing, if any Governmental Entity of competent
jurisdiction shall have issued a final non-appealable order enjoining or
otherwise prohibiting the transactions contemplated hereby and by the Related
Agreements.
7.2. EFFECT OF TERMINATION
In the event this Agreement is terminated pursuant to Section 7.1 hereof,
this Agreement shall become void and have no effect, provided, however, that
nothing herein shall relieve any Party from liability for the breach of any
representations or warranties or the breach of, or failure to perform, any
covenant made by it herein.
16
-16-
ARTICLE 8.
MISCELLANEOUS
8.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations, warranties and covenants contained in this Agreement
shall not survive the Closing.
8.2. AMENDMENT
This Agreement may be amended or supplemented at any time by the mutual
agreement in writing of the Parties.
8.3. NO WAIVER OF RIGHTS
No failure or delay on the part of any Party in the exercise of any power
or right hereunder shall operate as a waiver thereof. No single or partial
exercise of any right or power hereunder shall operate as a waiver of such right
or of any other right or power. The waiver by any Party of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
other or subsequent breach hereunder. Except as otherwise expressly provided
herein, all rights and remedies existing under this Agreement are cumulative
with, and not exclusive of, any rights or remedies otherwise available.
8.4. EXPENSES
Each Party hereto shall bear and pay all costs and expenses incurred by it
in connection with the transactions contemplated in this Agreement, including
fees and expenses of its own financial consultants, accountants and counsel.
8.5. ENTIRE AGREEMENT; SUCCESSORS; THIRD PARTIES
This Agreement and the Related Agreements contain the entire agreement
between the Parties with respect to the transactions contemplated hereunder and
thereunder and supersede all prior arrangements or understandings with respect
thereto, written or
17
-17-
oral, other than documents referred to herein or therein. The terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the Parties hereto and their respective successors and permitted assigns. Except
as specifically set forth herein or in any Related Agreement, nothing in this
Agreement or any Related Agreement, expressed or implied, is intended to confer
upon any party, other than the parties hereto and thereto, and their respective
successors and permitted assigns, any rights, remedies, obligations or
liabilities.
8.6. NO ASSIGNMENT
No Party hereto may assign any of its rights or obligations under this
Agreement to any other Person, except that ▇▇▇▇▇▇ may assign its rights and/or
obligations to an Affiliate of ▇▇▇▇▇▇.
8.7. NOTICES
All notices or other communications which are required or permitted
hereunder shall be in writing and sufficient if delivered personally, by
facsimile or sent by overnight express or by registered or certified mail,
postage prepaid, addressed as follows:
If to the Company or ▇▇▇▇▇▇:
▇▇▇▇▇▇ Equity Investors, III, L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: V. ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a required copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
18
-18-
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to any of the Managers, to the address set forth beneath the signature of
such Manager on the signature page hereof, with a required copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇)▇▇▇-▇▇▇▇
All such deliveries shall be deemed effective when received by the Persons
entitled to such receipt or when delivery has been attempted but refused by such
Person or Persons. Any Party may change the Persons or addresses to which such
deliveries shall be made with respect to such Party by delivering notice thereof
to the other Parties hereto in accordance with this Section 8.7.
8.8. CAPTIONS
The captions contained in this Agreement are for reference purposes only
and are not part of any such agreement.
8.9. COUNTERPARTS
This Agreement may be executed in any number of counterparts, and each
such counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
8.10. GOVERNING LAW AND VENUE
The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Delaware applicable to
agreements made and entirely to be performed within such jurisdiction. The Party
bringing any
19
-19-
action under this Agreement shall only be entitled to choose the federal or
state courts of the State of Delaware or the federal or state courts of the
State of New York, sitting in the Borough of Manhattan, as the venue for such
action, and each Party consents to the jurisdiction of the court chosen in such
manner for such action.
8.11. SEVERABILITY
The provisions of this Agreement are severable, and the unenforceability
of any provision of this Agreement shall not affect the enforceability of the
remainder of this Agreement. The Parties acknowledge that it is their intention
that if any provision of this Agreement is determined by a court to be invalid,
illegal or unenforceable as drafted, that provision should be construed in a
manner designed to effectuate the purpose of that provision to the greatest
extent possible under applicable law.
8.12. SPECIFIC PERFORMANCE
The rights of the Parties under this Agreement and the Related Agreements
are unique and the failure of a Party to perform its obligations hereunder or
thereunder would irreparably harm the other Parties hereto. Accordingly, the
Parties shall, in addition to such other remedies as may be available at law or
in equity, have the right to enforce their rights hereunder by actions for
specific performance and/or injunctive relief to the extent permitted by law.
-- END OF PAGE --
[signatures appear on the following pages]
20
-20-
IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound
hereby, have caused this Agreement to be executed as of the day and year first
above written.
COLORADO PRIME ACQUISITION CORP.
By: /s/ V. ▇▇▇▇▇ ▇▇▇▇▇▇
___________________________
▇▇▇▇▇▇ EQUITY INVESTORS, III, L.P.
By: TC Equity Partners, L.L.C.,
its General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
_____________________
MANAGERS:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇
-▇▇-
/▇/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
________________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
________________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
________________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
________________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
22
-22-
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
________________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
________________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
________________________________________
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
________________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇
-▇▇-
/▇/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
________________________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
________________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇
________________________________________
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇
________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
24
-24-
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇. ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
25
EXHIBIT A
SHARES OF SHARES OF
CLASS A COMPANY SHARES OF
MANAGEMENT COMMON COMPANY
CASH TO BE COMMON TO STOCK TO PREFERRED
CONTRIBUTED BE BE STOCK TO BE
BUYERS ($) CONTRIBUTED PURCHASED PURCHASED
------------------------------ ------------ ----------- --------- ---------
▇▇▇▇▇▇ Equity Investors, III, 22,880,000 128,800 10,000
L.P.
Managers: 37,782.04 10,000
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 18,891.02 5,000
▇▇▇▇▇▇ ▇▇▇▇▇▇ 8,689.87 2,300
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 6,234.04 1,650
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 1,511.28 400
▇▇▇▇▇▇ ▇▇▇▇▇▇ 1,322.37 350
▇▇▇▇▇▇▇ ▇▇▇▇▇ 1,133.46 300
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 944.55 250
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 755.64 200
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 755.64 200
▇▇▇▇▇▇ ▇▇▇▇▇▇ 188.91 50
▇▇▇▇ ▇▇▇▇▇▇ 40,000 400
▇▇▇▇▇▇ ▇. ▇▇▇ 5,000 50
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 5,000
---------- ---------- ------- ------
Total: $22,930,000 72,208.82 150,000 10,000
========== ========= ======= ======
26
EXHIBIT B
(Warrant Certificate)
