Exhibit 4.4
IN ORDER TO PURCHASE SHARES, THIS KEY EMPLOYEE STOCK PURCHASE AGREEMENT
MUST BE COMPLETED AND RETURNED TO XXXXXX XXXXXX BY AUGUST 30, 2002.
BPC HOLDING CORPORATION
KEY EMPLOYEE STOCK PURCHASE AGREEMENT
Parties
This Key Employee Stock Purchase Agreement, dated as of August ___,
2002 (this "AGREEMENT"), between BPC Holding Corporation, a Delaware
corporation (the "COMPANY") and ______________ ("PURCHASER").
RECITAL
WHEREAS, the Company has adopted the BPC Holding Corporation Key
Employee Equity Investment Plan, a copy of which is attached hereto as
Exhibit A (the "PLAN"), providing for the sale by the Company of shares of
common stock, par value $0.01 per share, of the Company (the "COMMON
STOCK"), to certain key employees of the Company and its subsidiaries, on
the terms and conditions set forth in the Plan; and
WHEREAS, the Company has offered Purchaser the opportunity to
participate in the Plan and to purchase up to _____ shares of the Common
Stock at a purchase price of $100.00 per share (the "PER SHARE PURCHASE
PRICE"); and
WHEREAS, Purchaser desires to participate in the Plan and to purchase
shares of Common Stock from the Company at the Per Share Purchase Price.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual undertakings set forth
in this Agreement, the parties hereby agree as follows:
1. STOCK PURCHASE. Simultaneously with the execution of this Agreement:
1.1 SHARES. The Company is selling to Purchaser, and Purchaser is
purchasing from the Company and acknowledges purchase of,
___________________ whole shares ("SHARES") of Common Stock (not to
exceed _____ shares).
1.2 PAYMENT. The total purchase price for the Shares (the "TOTAL PURCHASE
PRICE") to be paid by Purchaser is $_______________($100.00 multiplied
by the number of shares purchased pursuant to Section 1.1), receipt of
which is hereby acknowledged by the Company. Payment is being made as
follows (check appropriate box):
( ) IN FULL IN CASH or BY CERTIFIED OR OFFICIAL BANK CHECK, from the
funds of Purchaser; OR
( ) _____% (NOT LESS THAN 33.33%) of the Total Purchase Price referenced
in Section 1.2 ($______________) IN CASH or BY CERTIFIED OR
OFFICIAL BANK CHECK, from the funds of Purchaser, and the balance of
the Total Purchase Price evidenced by Purchaser's promissory note, in
the form attached hereto as Exhibit B (the "NOTE"), executed and
delivered to the Company in the principal amount of $_______________.
2. REPRESENTATIONS AND WARRANTIES BY PURCHASER. Purchaser hereby
represents and warrants to the Company as follows:
2.1 BINDING OBLIGATION. This Agreement constitutes the valid and binding
obligation of Purchaser, enforceable against Purchaser in accordance
with its terms.
2.2 KNOWLEDGE ABOUT THE COMPANY. Purchaser has received a copy of the Plan
and the prospectus regarding the Plan dated as of August 6, 2002, which
Purchaser has reviewed and understood.
3. STOCKHOLDERS AGREEMENT; TRANSFER OF SHARES.
3.1 As a condition to the purchase of the Shares hereunder Purchaser shall
to execute the Stockholders Agreement, dated July 22, 2002, among the
Company and the stockholder parties thereto (the "STOCKHOLDERS
AGREEMENT"), in the form attached hereto as Exhibit C, concurrently with
the execution of this Agreement.
3.2 Except as expressly provided in the Stockholders Agreement or pursuant
to the Note, Purchaser may not directly or indirectly sell, transfer,
assign, pledge, encumber or otherwise transfer the Shares.
4. NOTICES. All notices and other communications given or made pursuant to
this Agreement shall be in writing and shall be delivered personally,
sent by commercial courier or registered mail (postage prepaid, return
receipt requested) or transmitted by facsimile with confirming copy by
first class prepaid mail, to the parties at their respective following
addresses and numbers or such other addresses or numbers as a party
shall designate by notice in writing to the other in accordance
herewith, and shall be deemed to be given or made when so delivered
personally or by commercial courier or when transmitted and received by
facsimile, or if mailed, five business days after the date of mailing;
except that notice of a change of address shall be deemed given only
when actually received by the other party:
TO THE COMPANY AT:
BPC Holding Corporation
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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TO PURCHASER AT:
_________________________
_________________________
_________________________
_________________________
5. MISCELLANEOUS PROVISIONS.
5.1 ENTIRE AGREEMENT. This Agreement contains the entire agreement among
the parties with respect to the purchase of the Shares.
5.2 WAIVERS AND AMENDMENTS. This Agreement may be amended or modified, and
the terms and conditions of this Agreement may be waived, only by a
written instrument signed by each party hereto or, in the case of a
waiver, the party waiving compliance. No delay on the part of any party
in exercising any right, power or privilege under this Agreement shall
operate as a waiver thereof, nor shall any waiver on the part of any
party of any right, power or privilege under this Agreement, nor any
single or partial exercise of any right, power or privilege under this
Agreement, preclude any other or further exercise thereof or the
exercise of any other right, power or privilege under this Agreement.
The rights and remedies provided in this Agreement are cumulative and
are not exclusive of any rights or remedies which any party may
otherwise have at law or in equity.
5.3 GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware applicable to
agreements made and to be performed entirely within that State.
5.4 JURISDICTION; CONSENT TO SERVICE OF PROCESS. Each of the parties
hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of any New York state court or federal
court of the United States of America sitting in the Southern District
of New York, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or the
transactions it contemplates, or for recognition or enforcement of any
judgment. Each of the parties hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may
be heard and determined in such New York state court or, to the extent
permitted by law, in such federal court. The consent of such parties to
the jurisdiction of a New York state court shall not preclude the right
of any party to remove such action to the United States District Court
for the Southern District of New York, or other United States District
Court as may be permitted by applicable law, should such removal be
permitted under applicable law. Each of the parties agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.
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5.5 BINDING EFFECT. This Agreement shall inure to the benefit of and shall
be binding upon the parties hereto and their respective heirs, legal
representatives, successors and assigns. Neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by
Purchaser without the prior written consent of the Company.
5.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
5.7 HEADINGS. The headings in this Agreement are intended solely for
convenience of reference and shall be given no effect in the
interpretation of this Agreement.
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EXECUTION
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on and as of the day and year first above written.
PURCHASER
_________________________________________
Name:
BPC HOLDING CORPORATION
By:______________________________________
Name: Xxx Boots
Title: President and Chief Executive
Officer
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