EXHIBIT 10.35
AMENDMENT TO STOCK PURCHASE AGREEMENT
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THIS AMENDMENT TO STOCK PURCHASE AGREEMENT (this "Agreement") is entered
into as of the 29th day of September, 1997, by and among Colorado Greenhouse
Holdings, Inc., a Delaware corporation (the "Company"), Xxxxxxxxx-Xxxxx Partners
III, L.P., a Delaware limited partnership ("Xxxxxxxxx-Xxxxx"), BCI Growth IV,
L.P., a Delaware limited partnership ("BCI"), H & Q Colorado Greenhouse
Investors, L.P., a Delaware limited partnership ("H&Q") and Xxxxxxxxx - CGH
Partners, LLC, a Delaware limited liability company ("Xxxxxxxxx, LLC").
Xxxxxxxxx-Xxxxx, BCI, H&Q and Xxxxxxxxx, LLC are collectively referred to herein
as "Purchasers."
RECITALS
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A. Purchasers and the Company previously entered into that certain Stock
Purchase Agreement (the "Stock Purchase Agreement") dated as of January 21,
1997, pursuant to which the Purchasers purchased certain shares of the Company's
Series B Preferred Stock. Capitalized terms not defined herein shall have the
meaning assigned to them in the Stock Purchase Agreement.
B. Purchasers made claims against the Company concerning certain alleged
nondisclosures and misrepresentations made by the Company at the time Purchasers
purchased the Series B Preferred Stock.
C. Purchasers and the Company have agreed to settle such claims and in
connection therewith, have agreed to amend the Stock Purchase Agreement as set
forth herein.
AGREEMENT
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NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Amendments. The following sections of the Stock Purchase Agreement
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shall be amended:
(a) The following definitions in Section 1.1 shall be deleted in
their entirety: "Actual EBIT," "Adjustment Price," "Consolidated Net
Income," "1997 Target EBIT" and "1998 Target EBIT."
(b) Section 2.5 ("Preferred Stock Conversion Adjustments") is hereby
deleted in its entirety.
(c) Exhibit H is hereby deleted in its entirety.
(d) Schedule 2 is hereby deleted in its entirety.
2. Interpretation. Except as expressly amended by this Agreement, the
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Stock Purchase Agreement shall remain in full force and effect without change.
3. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which when executed and delivered shall be an original,
but all of which together shall constitute one and the same instrument.
[signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first above written.
COLORADO GREENHOUSE HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
Chief Executive Officer
XXXXXXXXX-XXXXX PARTNERS III, L.P.
By: Xxxxxxxxx-Xxxxx Managing Partner III, LLC, its
general partner
By: /s/ Xxxxx Xxxxx
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Its: _____________________________________________
BCI GROWTH IV, L.P.
By: Glenpointe Associates, LLC, its general
partner
By: /s/ Xxxxxxx X. Xxxx
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Its: Member
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H & Q COLORADO GREENHOUSE
INVESTORS, L.P.
By: /s/ Xxxxxx Xxxxxxxxxxxx
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Xxxxxx Xxxxxxxxxxxx, Attorney-In-Fact
XXXXXXXXX - CGH PARTNERS, LLC
By: Xxxxxxxxx Partners Management Company,
LLC, its Manager
By: /s/ Xxxxx Xxxxx
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Manager
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