STOCK PURCHASE AND CONTRIBUTION AGREEMENT
STOCK PURCHASE AND CONTRIBUTION AGREEMENT,
dated as of October 10, 1996 (the "Agreement"), by and
among UST Inc., a Delaware corporation ("UST"), UST
Enterprises, Inc., a Delaware corporation ("Enterprises",
and together with UST, the "Sellers"), W/F Investment
Corp., a California corporation, or its nominee (the
"Purchaser"), and Camera Platforms International, Inc., a
Delaware corporation (the "Company").
This Agreement sets forth the terms and
conditions upon which, among other things, (a) the
Sellers are selling to the Purchaser, and the Purchaser
is purchasing from the Sellers, an aggregate of 9,403,168
shares of Common Stock, par value $0.0005 per share (the
"Common Stock"), of the Company (such 9,403,168 shares
being referred to herein as the "Shares"), (b) the
Purchaser is making a capital contribution of $191,783
to the Company, (c) the Purchaser has arranged a line of
credit or other bank facility in the amount of $850,000
to be made available to the Company as of the Closing (a
copy of such line of credit or other bank facility has
been provided to the Company and UST), (d) UST has
forgiven all debt for borrowed money owed to UST by the
Company in excess of $250,000 and to defer repayment of
such $250,000 for eighteen months and one day, (e) the
Company has agreed to repay such $250,000, plus accrued
interest, on the first day following the date that is
eighteen months after the Closing, which amount shall
constitute full satisfaction of the principal and
interest due UST, and (f) UST has agreed to indemnify
certain persons for certain claims arising with respect
to the Company.
In consideration of the mutual agreements
contained herein, the parties agree as follows:
1. Purchase and Sale of Shares. Subject to
the terms and conditions of this Agreement, and in
reliance on the representations and warranties contained
herein and the other actions being taken by the Purchaser
and the Sellers hereunder, at the Closing described in
Section 2 hereof, which is taking place concurrently with
the execution and delivery of this Agreement, the Seller
is selling, assigning, transferring and conveying to the
Purchaser, and the Purchaser is purchasing from the
Seller, all of the Shares for an aggregate purchase price
of $94,032 (the "Purchase Price").
2. Closing; Deliveries at the Closing. At the
closing of the sale and purchase of the Shares
contemplated by Section 1 hereof (the "Closing"), (a) the
Sellers are delivering to the Purchaser stock
certificates representing all the Shares, together with
stock powers duly executed to transfer to the Purchaser
good, valid and marketable title to the Shares, (b) the
Purchaser is delivering to the Sellers the Purchase Price
by cashier's check, (c) the Purchaser is delivering to
the Company a cashier's check in the amount of $191,783
as a contribution to capital, (d) the Purchaser is
causing to be made available to the Company a line of
credit or other bank facility in the amount of $850,000
for working capital purposes to be used exclusively by
the Company (a portion of which may be held back by the
Lender (as defined below) pending satisfaction of certain
conditions) and (e) UST is providing a letter of credit
to the Lender to secure certain of UST's indemnity
obligations set forth in Section 9(a) hereof. The
Closing shall be held at the offices of Weissmann, Wolff,
Xxxxxxx, Xxxxxxx & Xxxxxxxxx, 0000 Xxxxxxxx Xxxxxxxxx,
Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx, concurrently with
the execution and delivery of this Agreement by each
party hereto.
3. Outstanding UST Indebtedness.
(a) The Sellers have (i) forgiven, prior to the
Closing, in consideration of the Purchaser's and the
Company's willingness to enter into this Agreement, all
debt for borrowed money (including accrued interest) owed
by the Company to the Sellers or their affiliates in
excess of $250,000 and (ii) agreed to defer repayment of
such $250,000 for eighteen months and one day. In
consideration of the foregoing, the Company hereby agrees
to repay, on the first day following the date that is
eighteen months after the Closing, such $250,000 plus
accrued interest from the date of the Closing to the date
of payment. Interest shall be calculated using the prime
rate as set by the Bank of Boston from time to time.
Such payment, which shall be made by delivery to UST of a
cashier's check for the full amount due, shall be in full
satisfaction of all indebtedness (including principal and
interest) owed by the Company to the Sellers.
(b) UST recognizes that the Company's
obligations under the preceding subsection (a) (the "UST
Obligations") shall be subordinated in right of payment
to the Company's obligations to the Lender (as such term
is defined in Section 9(a) hereof) under the credit
facility extended by the Lender to the Company (the
"Facility"). In furtherance of the foregoing, UST and
the Company acknowledge and agree, for the benefit of the
Lender, that during the existence of an Event of Default
under the Facility relating to the payment of money, the
Company shall not pay or repay the UST Obligations, and,
at any such time, the Company's obligation to pay the UST
Obligations shall be subordinated and junior to the prior
payment in full of all of the Company's obligations
(including post-petition interest) to the Lender under
the Facility, such subordination to remain in effect
before, during and after any bankruptcy, reorganization
or other insolvency proceeding affecting the Company. In
addition, UST agrees not to take, at any such time, any
action to enforce or obtain payment of the UST
Obligations in contravention of the foregoing
subordination provisions, and, should it receive any such
payment, it shall promptly pay same over to the Lender.
The provisions of this subsection (b) may not be changed
or modified without the prior written consent of the
Lender. For purposes of this Agreement, "Facility" shall
include, without limitation, (i) all extensions,
modifications, amendments and supplements to the Facility
(including, but not limited to, any increases in the
amount of the Facility) and (ii) all fees, costs and
expenses owing by the Company to Lender in connection
with the Facility. The UST Obligations shall remain
subordinate to the Facility regardless of whether Lender
extends, modifies, amends, supplements, increases the
amount of, and/or accepts or releases collateral for the
Facility from time to time.
4. Representations and Warranties of the
Sellers. The Sellers represent and warrant to the
Purchaser and the Company as follows:
(a) The Sellers have the requisite
corporate power and authority to execute, deliver and
carry out the terms and provisions of this Agreement and
to consummate the transactions contemplated hereby, and
have taken all necessary corporate action to authorize
the execution, delivery and performance of this
Agreement;
(b) the Sellers are corporations duly
organized, validly existing and in good standing under
the laws of the State of Delaware;
(c) this Agreement has been duly and
validly authorized, executed and delivered by the
Sellers, and constitutes a valid and binding obligation
of each of the Sellers, enforceable against each in
accordance with its terms;
(d) the Sellers are the beneficial owner
of, and have good and marketable title with respect to,
all the Shares, and there exist no liens, claims,
options, proxies, voting agreements, charges or
encumbrances of whatever nature ("Liens") affecting the
Shares;
(e) upon transfer to the Purchaser by the
Sellers of the Shares at the Closing, the Purchaser will
have good and marketable title to the Shares, free and
clear of all Liens;
(f) the execution of this Agreement by
the Sellers does not, and the performance by the Sellers
of their obligations hereunder will not, constitute a
violation of, conflict with or result in a default under
any contract, commitment, agreement, understanding,
arrangement or restriction of any kind to which either
Seller is a party or by which either Seller is bound or
any judgment, decree or order applicable to either
Seller; and
(g) neither the execution and delivery of
this Agreement nor the performance by either Seller of
its obligations hereunder will violate any provision of
law applicable to either Seller or require any consent or
approval of, or filing with or notice to, any public body
or authority under any provision of law applicable to
either Seller other than notices or filings pursuant to
the federal securities laws or the rules and regulations
of the New York Stock Exchange, Inc. (the "NYSE") or the
National Association of Securities Dealers (the "NASD").
5. Representation and Warranties of the
Company. The Company represents and warrants to the
Sellers and the Purchaser as follows:
(a) The Company has the requisite
corporate power and authority to execute, deliver and
carry out the terms and provisions of this Agreement and
to consummate the transactions contemplated hereby, and
has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement;
(b) the Company is a corporation duly
organized, validly existing and in good standing under
the laws of the State of Delaware;
(c) this Agreement has been duly and
validly authorized, executed and delivered by the Company
and constitutes a valid and binding obligation of the
Company, enforceable in accordance with its terms;
(d) the execution of this Agreement by
the Company does not, and the performance by the Company
of its obligations hereunder will not, constitute a
violation of, conflict with or result in a default under
any contract, commitment, agreement, understanding,
arrangement or restriction of any kind to which the
Company is a party or by which the Company is bound or
any judgment, decree or order applicable to the Company;
and
(e) neither the execution and delivery of
this Agreement nor the performance by the Company of its
obligations hereunder will violate any provision of law
applicable to the Company or require any consent or
approval of, or filing with or notice to, any public body
or authority under any provision of law applicable to the
Company other than notices or filings pursuant to the
federal securities laws or the rules and regulations of
the NYSE or the NASD.
6. Representation and Warranties of the
Purchaser. The Purchaser represents and warrants to the
Sellers and the Company as follows:
(a) The Purchaser has the requisite
corporate power and authority to execute, deliver and
carry out the terms and provisions of this Agreement and
to consummate the transactions contemplated hereby, and
has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement;
(b) the Purchaser is a corporation duly
organized, validly existing and in good standing under
the laws of the State of California;
(c) this Agreement has been duly and
validly authorized, executed and delivered by the
Purchaser and constitutes a valid and binding obligation
of the Purchaser, enforceable in accordance with its
terms;
(d) the execution of this Agreement by
the Purchaser does not, and the performance by the
Purchaser of its obligations hereunder will not,
constitute a violation of, conflict with or result in a
default under any contract, commitment, agreement,
understanding, arrangement or restriction of any kind to
which the Purchaser is a party or by which the Purchaser
is bound or any judgment, decree or order applicable to
the Purchaser;
(e) neither the execution and delivery of
this Agreement nor the performance by the Purchaser of
its obligations hereunder will violate any provision of
law applicable to the Purchaser or require any consent or
approval of, or filing with or notice to, any public body
or authority under any provision of law applicable to the
Purchaser other than notices or filings pursuant to the
federal securities laws or the rules and regulations of
the NYSE or NASD;
(f) the Purchaser (i) acknowledges that
it has reviewed the public filings of the Company and has
been given an opportunity to conduct due diligence and
ask questions of management of the Company and
(ii) recognizes that (w) the offer and sale of the Shares
have not been registered under the Securities Act of
1933, as amended (the "Securities Act"), (x) the Shares
are being acquired by the Purchaser for its own account
and without a view towards distribution or resale in
violation of the Securities Act, (y) the Shares must be
held indefinitely and the Purchaser must continue to bear
the economic risk of the investment in the Shares unless
the offer and sale of such Shares is subsequently
registered under the Securities Act and all applicable
state securities laws or an exemption from such
registration is available, and (z) a notation shall be
made in the appropriate records of the Company indicating
that the Shares are subject to restrictions on transfer
and appropriate stop-transfer instructions will be issued
to the Company's transfer agent with respect to the
Shares; and
(g) the Purchaser acknowledges that
neither the Sellers nor the Company are making any
representation or warranties to the Purchaser, except as
specifically set forth herein.
7. Guarantees. The Company agrees to use its
reasonable efforts to insure that neither Sellers nor
their respective affiliates, officers and/or directors
will have any liability under the Distributorship
Agreement with Panther GmbH and acknowledges its
responsibility to indemnify, defend and hold harmless the
Sellers and their respective affiliates, directors and
officers from any liabilities, losses, damages, costs and
expenses resulting from any and all claims that arise out
of any minimum purchase guarantees thereunder.
8. Additional Capital Contribution. The
Purchaser shall make an additional contribution to the
capital of the Company in the amount of $107,000 (without
receiving any additional shares in consideration
therefor) at such time as the Company shall have resolved
with the appropriate authorities of the State of
California the Company's prior violations of California
emission laws (as described on pages 6 and 7 of the
Company's most recent Annual Report on Form 10-K),
provided that any such resolution does not, and is not
reasonably expected to, have a material adverse effect on
the Company. The incurrence of expenses and/or fines in
an aggregate amount not to exceed $125,000 to resolve
such matters and retrofit the Company's camera trucks in
connection with any such resolution shall not be deemed
to constitute a material adverse effect for purposes of
this Section.
9. Indemnification.
(a) The parties acknowledge that on
August 7, 1996, certain shareholders of the Company filed
a shareholders' derivative action against the Company and
certain past and present officers and directors of the
Company. That action, entitled Xxxx Xxxx et al. v.
Camera Platforms International, Inc. et al. (the
"Action"), was filed in the United States District Court
for the District of Minnesota, and bears Case No. 4-96
CIV. 776. UST hereby agrees to indemnify, defend and
hold harmless the Company, the Purchaser, its current
lender, Foothill Capital Corporation, and any successor
lender (collectively, the "Lender"), the officers and
directors of the Company and the Lender, the current and
future officers and directors of the Purchaser, the
respective shareholders, employees and representatives of
the Purchaser and the Lender, and all or any assignees of
or participants with the Lender (singularly, an
"Indemnified Party," and collectively, the "Indemnified
Parties"), from and against any and all claims, cross-
claims, losses, judgments, damages, liabilities, demands,
deficiencies, deductibles, costs and expenses (including,
without limitation, attorneys fees, court costs and any
legal or other expenses for investigating or defending)
(collectively, "Losses") incurred by the Indemnified
Parties in connection with or as a result of (i) the
Action (including, with respect to the Company, as a
result of any obligation which the Company shall have to
indemnify any of its officers and/or directors), or (ii)
any other action or claim (whether or not related to the
Action) brought, and/or threatened to be brought, by any
shareholder of the Company as a result of or in
connection with any acts or omissions of the Company
and/or its officers and directors at any time prior to
the Closing, whether brought before or after the Closing
(each of the foregoing shall hereinafter be known,
singularly, as an "Indemnified Matter," and collectively,
the "Indemnified Matters"). In light of the foregoing,
UST shall be entitled to select counsel (after
consultation with the Company) to defend any Indemnified
Matter and control the defense thereof; and the Company
shall cooperate with such counsel in the defense of such
Indemnified Matter, including by using its reasonable
efforts to make available any of its employees as and to
the extent required. UST also shall be entitled to
settle an Indemnified Matter on behalf of the Company
(after consultation with the Company), provided that any
such settlement involves only the payment of money to be
paid by UST and does not involve any payment or any form
of equitable relief involving or affecting the Company.
In connection with any such settlement, UST shall use
reasonable efforts to obtain a release of the Indemnified
Parties from any liabilities arising under the action
being settled. An Indemnified Party may participate with
counsel of its choice in the defense of any Indemnified
Matter at its own cost (or with respect to the Lender, at
UST's cost, if the Lender shall have been named a party),
provided that counsel selected by UST shall be lead
counsel and counsel appointed by an Indemnified Party
shall cooperate in good faith with counsel selected by
UST. In addition, UST shall be entitled to any insurance
proceeds from and to the extent of any insurance policies
maintained by UST covering any payments made by UST
pursuant to this Section 9. In the event that counsel
selected by UST shall fail to defend an Indemnified
Matter in good faith, then the Indemnified Parties shall
have the right to incur such costs and expenses as they
shall deem necessary or advisable, in their sole
discretion, to protect their own interests (including
without limitation settling claims in the Indemnified
Matter), and to recover such costs and expenses,
including attorney's fees, from UST under this section.
The parties further acknowledge that so long as any
monies are owed by the Company to the Lender, the Company
shall not waive any of its or the Lender's rights under
this Section 9 without the prior written consent of the
Lender. If a court should determine this indemnification
to be unenforceable, then the Indemnified Parties shall
have rights of implied indemnity, equitable indemnity
and/or contribution against UST to the fullest extent
permissible under applicable law, provided that such
rights do not expand the indemnification that such
Indemnified Parties would otherwise have been entitled
from UST.
(b) UST acknowledges that the Lender has
expressed some concern with respect to the effect that
any judgment entered in the Action which is not satisfied
by UST in accordance with the preceding subsection (a)
may have on the Company's ability to satisfy its
obligations to the Lender under the Facility. In order
to provide comfort to the Lender with respect to UST's
indemnity obligations pursuant to the preceding
subsection (a), UST is providing a letter of credit to
the benefit of the Lender issued by Bank of Boston in the
aggregate amount of $850,000. The Lender agrees to
return to UST the letter of credit, along with a letter
duly executed by an officer of the Lender addressed to
Bank of Boston that instructs Bank of Boston to cancel
the letter of credit, upon the earliest to occur of the
following events: (i) the Action is dismissed with
prejudice or without prejudice if the Action is not
recommenced within ninety (90) days following any such
dismissal without prejudice, (ii) any judgement entered
in the Action is satisfied, (iii) any loans made to the
Company by the Lender are paid off in full and the
Facility shall have been terminated or (iv) the Lender
consents. The Lender may draw upon the letter of credit
in an amount sufficient to satisfy all unpaid amounts
outstanding under the Facility upon the entry of any
judgment in the Action requiring the payment of money and
the satisfaction of the following conditions: (i) 30
consecutive days shall have elapsed without such judgment
having been stayed, discharged, paid, bonded or vacated;
(ii) the Lender shall have declared all amounts
outstanding under the Facility to be due and payable, and
(iii) the Company shall have failed to discharge its
obligations under the Facility within 15 days of
receiving any notice from the Lender so declaring all
such amounts due and payable. To draw upon the letter of
credit, the Lender shall present to the Bank of Boston
(a) the letter of credit, and (b) a statement duly
executed by an officer of the Lender stating (i) that the
conditions to drawing set forth in Section 9(b) of the
Agreement have been satisfied, (ii) the amount of any and
all unpaid obligations under the Facility, and (iii) that
the Lender has provided a copy of such statement to UST
at least three business days in advance of it having been
presented to Bank of Boston. UST shall maintain the
letter of credit (or a substitute letter of credit) until
such time as the Lender shall be required to return such
letter of credit pursuant to the second sentence of this
subsection (b); provided, however, that the amount of the
letter of credit may be reduced from time to time to
correspond to any reduction in the amount that the Lender
is committed to provide to the Company under the
Facility. The provisions of this subsection (b) shall
not limit any rights which the Lender may have under the
preceding subsection (a).
(c) In consideration for UST's
willingness to provide the indemnity and the letter of
credit, W/F Investment Corp. agrees to reimburse UST for
the costs of obtaining and maintaining the letter of
credit. In addition, the Company agrees to reimburse UST
for any amounts drawn under the letter of credit, net of
any amounts which UST may owe the Company under the
preceding subsection (a).
10. Further Assurances, etc. Following the
Closing, the Sellers will provide the Purchaser with all
additional instruments of conveyance, assignment,
transfer and delivery which may reasonably be requested
by the Purchaser and will take all reasonable further
steps requested by the Purchaser to enable the Purchaser
to obtain all rights and benefits provided it hereunder.
11. Expenses. All fees and expenses incurred
by any of the parties hereto shall be borne by the party
incurring such fees and expenses. All sales, transfer or
other similar taxes payable in connection with this
Agreement will be borne by the party incurring such
taxes, except that the Seller shall be responsible for
all stock transfer taxes with respect to the transactions
contemplated hereby.
12. Brokerage. Each of the Purchaser and the
Sellers represents and warrants to the other and the
Company that the negotiations relevant to this Agreement
have been carried on by each of the Purchaser, on the one
hand, and the Sellers, on the other hand, directly with
the other, and that there are no claims for finder's fees
or brokerage commissions or other like payments in
connection with this Agreement or the transactions
contemplated hereby. Xxxxx/Xxxxxx and Associates has
asserted a claim for a commission, which is disputed, but
which shall be the sole responsibility of Purchaser. The
Purchaser, on the one hand, and the Sellers, on the other
hand, agree to indemnify and hold harmless the other and
the Company from and against any and all claims or
liabilities for finder's fees or brokerage commissions or
other like payments incurred by reason of any written or
oral agreement entered into by it.
13. Severability. If any term, provision,
covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions,
covenants and restrictions will remain in full force and
effect and will in no way be affected, impaired or
invalidated.
14. Miscellaneous.
(a) This Agreement constitutes the entire
agreement and supersedes all prior agreements and
understandings, whether oral or written, among the
parties hereto with respect to the subject matter hereof.
This Agreement may not be amended orally, but only by an
instrument in writing signed by each of the parties to
this Agreement.
(b) This Agreement shall inure to the
benefit of and be binding upon the parties hereto and
their successors and assigns.
(c) Section headings contained in this
Agreement are for reference purposes only and shall not
affect the meaning or interpretation of this Agreement.
(d) This Agreement may be executed in
counterparts, each of which shall, when executed, be
deemed to be an original, and both of which shall be
deemed to be one and the same instrument. Delivery of an
executed counterpart of this Agreement by telefacsimile
shall be equally as effective as delivery of a manually
executed counterpart of this Agreement. Any party
delivering an executed counterpart of this Agreement by
telefacsimile also shall deliver a manually executed
counterpart of this Agreement, but the failure to deliver
a manually executed counterpart shall not affect the
validity, enforceability, and binding effect of this
Agreement.
(e) This Agreement shall be governed by
and construed and enforced in accordance with the
substantive laws of the State of California, without
reference to the conflict of laws principles thereof.
(f) All notices and other communications
under this Agreement shall be in writing and delivery
thereof shall be deemed to have been made either (i) if
mailed, when received, or (ii) when transmitted by hand
delivery, telegram, telex, or facsimile transmission, to
the party entitled to receive the same at the addresses
indicated below or at such other address as such party
shall have specified by written notice to the other
parties hereto given in accordance herewith:
(i) If to the Sellers:
UST Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Corporate Secretary
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
(ii) If to the Purchaser:
W/F Investment Corp.
1900 Avenue of the Stars, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx
with a copy to:
Xxxxxxxxxx & Xxxxxxxxx
1900 Avenue of the Stars, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
(iii) If to the Company:
Camera Platforms International,
Inc.
00000 Xxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000-0000
Attention: President
with a copy to:
Xxxxxxxxx Xxxxx Xxxxxxx Xxxxxxx &
Xxxxxxxxx
Suite 900
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
IN WITNESS WHEREOF, and intending to be legally
bound hereby, the Purchaser, the Sellers and the Company
have executed or caused this Agreement to be executed on
the date first above written.
UST INC.
By /s/ Xxxx X. Xxxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxxx
Title: Executive Vice President
and Chief Financial Officer
UST ENTERPRISES INC.
By /s/ Xxxx X. Xxxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxxx
Title: Executive Vice President
and Chief Financial Officer
CAMERA PLATFORMS
INTERNATIONAL, INC.
By /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Treasurer and Controller
SHOTMAKER ACQUISITION CORP., as
nominee of
W/F INVESTMENT CORP.
By /s/ Xxxxxxx X. Xxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chairman of the Board
For purposes of Sections 3(b) and
9(b) of this Agreement, and intending
to be legally bound hereby, the
undersigned hereby executes this
Agreement as of the date first
written above:
FOOTHILL CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President
