Exhibit 2.4
EXECUTION COPY
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement"), is made as of June 13,
2003 by and among (i) VI ACQUISITION CORP., a Delaware corporation (the
"Company"), (ii) WIND POINT PARTNERS IV, L.P., WIND POINT PARTNERS V, L.P. and
WIND POINT IV EXECUTIVE ADVISOR PARTNERS, L.P., each of which is a Delaware
limited partnership, and WIND POINT ASSOCIATES IV, LLC, a Delaware limited
liability company (collectively, "WPP"), (iii) MID OAKS INVESTMENTS LLC, a
Delaware limited liability company ("Mid Oaks"), (iv) X.X. XXXXXXX PRIVATE
EQUITY PARTNERS QP II, L.P. and X.X. XXXXXXX PRIVATE EQUITY PARTNERS II, L.P.,
each of which is a Delaware limited partnership (collectively, "AGE"), (v) XXXXX
XXXXXX ("Xxxxxx"), (vi) XXXXXX XXX XXXXXXXXXX ("van Benthuysen," and together
with WPP, Mid Oaks, AGE, Xxxxxx, and any additional purchaser deemed an Investor
pursuant to Section 6.05 hereof, the "Investors") and (vii) XXXXXX XXXXXXXXXX
("Xxxxxxxxxx") and XXXXXX XXXXXXXX ("Xxxxxxxx") and the other Executives
identified on the signature pages to this Agreement (each individually, an
"Executive" and collectively the "Executives"). The Investors and the Executives
are herein called the "Purchasers". Capitalized terms not otherwise defined
herein shall have the meanings ascribed to them in Section 5 of this Agreement.
RECITALS:
WHEREAS, the Company has been organized for the purpose of operating and
managing family dining restaurants and enterprises (the "Core Business"), which
Core Business will be operated by the Company through its direct subsidiary,
VICORP Restaurants Inc., a Colorado corporation ("VICORP"), and through the
direct subsidiaries of VICORP.
WHEREAS, on the date hereof, the Company will acquire VICORP pursuant to
that certain Stock Purchase Agreement dated as of April 15, 2003, attached as
EXHIBIT A hereto (the "Acquisition Agreement").
WHEREAS, in order to partially fund the transactions contemplated by the
Acquisition Agreement, the Company proposes to issue and sell to the Purchasers
up to $72,237,500 worth of its capital stock, comprising up to 1,237,500 shares
of its Common Stock, par value $.0001 per share (the "Common Stock"), and up to
71,000 shares of its Series A Preferred Stock, par value $.0001 per share (the
"Series A Preferred Stock"), each having the rights and preferences set forth in
the Company's Amended and Restated Certificate of Incorporation attached as
EXHIBIT B hereto (the "Certificate of Incorporation").
The parties hereto agree as follows:
SECTION 1. AUTHORIZATION AND CLOSING.
1.01 Authorization of the Stock. The Company has authorized the issuance and
sale to the Purchasers of up to 1,237,500 shares of its Common Stock and
up to 71,000 shares of Series A Preferred Stock, each having the rights
and preferences set forth in the Certificate of Incorporation. The Common
Stock and the Series A Preferred Stock are collectively referred to herein
as the "Stock".
1.02 Purchase and Sale of the Stock. At the Closing (as defined in Section 1.03
below), the Company shall issue to the Purchasers and, subject to the
terms and conditions set forth herein, such Purchasers shall acquire from
the Company, shares of Common Stock at a price of $1.00 per share and
shares of Series A Preferred Stock at a price of $1000.00 per share and/or
the Preferred Stock Options (which shares and options shall total
1,237,500 shares of Common Stock and 71,000 shares of Series A Preferred
Stock). The number of shares to be acquired by the Purchasers at the
Closing or pursuant to the Preferred Stock Options is set forth on EXHIBIT
C hereto. The number of shares and Preferred Stock Options to be acquired
by each Executive is set forth on his or her signature page.
1.03 Closing. The closing of the purchase and sale of the Stock to be purchased
by the Purchasers and of the transactions contemplated by the Acquisition
Agreement (the "Acquisition") shall take place at the offices of Xxxxxxxx
& Xxxxxx, 00 X. Xxxxxx Xxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 at 9:00
a.m. on June 13, 2003, or at such other place or on such other date as may
be mutually agreeable to the Company and WPP (the "Closing"). At the
Closing, the Company shall deliver to each Purchaser stock certificates
evidencing the Stock to be purchased by such Purchaser, registered in such
Purchaser's name, upon payment of the purchase price therefor.
SECTION 2. CONDITIONS TO THE PURCHASER'S OBLIGATION AT THE CLOSINGS.
The obligation of the Purchasers (other than WPP) to purchase and pay for
the Stock to be purchased by them at the Closing is conditioned upon the
contemporaneous purchase by WPP of the Stock being purchased by it at the
Closing and satisfaction of each of the conditions set forth below:
2.01 Representations and Warranties. The representations and warranties
contained in Section 4 hereof shall be true and correct at and as of the
Closing as though then made, except to the extent of changes caused by the
transactions expressly contemplated herein, and the Company shall have
performed in all material respects all of the covenants required to be
performed by it hereunder prior to the Closing.
2.02 Certificate of Incorporation. The Certificate of Incorporation of the
Company shall have been filed with the Secretary of State of Delaware in
the form attached as EXHIBIT B hereto, shall be in full force and effect
under the laws of Delaware as of the Closing and shall not have been
amended or modified.
2.03 Management and Employment Agreement. The Company shall have entered into a
management agreements (the "Management Agreements") and VICORP shall have
entered into employment agreements (the "Employment Agreements"),
substantially in the forms of EXHIBITS D and E attached hereto,
respectively, with Xxxxxx, Xxxxxxxxxx and Xxxxxxxx effective as of the
Closing. Such Management Agreements and Employment Agreements shall not
have been amended or modified and shall be in full force and effect as of
the Closing, and the Executives shall have purchased the Stock proposed to
be purchased by each of them thereunder.
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2.04 Stockholders Agreement. The Company, the Purchasers and the other parties
signatory thereto shall have entered into a stockholders agreement
substantially in the form of EXHIBIT F attached hereto (the "Stockholders
Agreement"), and the Stockholders Agreement shall be in full force and
effect as of the Closing.
2.05 Professional Services Agreement. The Company and WPP shall have entered
into a professional services agreement substantially in the form of
EXHIBIT G attached hereto (the "Professional Services Agreement"), and the
Professional Services Agreement shall be in full force and effect as of
the Closing.
2.06 Registration Rights Agreement. The Company, the Purchasers and the other
parties signatory thereto shall have entered into a registration rights
agreement substantially in the form of EXHIBIT H attached hereto (the
"Registration Rights Agreement"), and the Registration Rights Agreement
shall be in full force and effect as of the Closing.
2.07 Closing Documents. The Company, on behalf of itself and VICORP, shall have
delivered to each Investor all of the following documents:
(a) An Officer's Certificate, dated the date of the Closing,
stating that the conditions specified in Sections 2.01 through 2.06 have
been fully satisfied;
(b) Certified copies of the resolutions duly adopted by the
Governing Body (if there is a Governing Body for such Person) of VICORP
and of Company authorizing the execution, delivery and performance of this
Agreement, the Management Agreement, the Employment Agreement, the
Stockholders Agreement, the Professional Services Agreement and the
Registration Rights Agreement and each of the other agreements
contemplated hereby, the filing of the Certificate of Incorporation
referred to in Section 2.02, the issuance and sale of the Stock and the
consummation of all other transactions contemplated by this Agreement;
(c) Certified copies of the Company's Organizational Documents,
each as in effect at the Closing;
(d) Certified copies of VICORP's Organizational Documents, each as
in effect at the Closing; and
(e) Such other documents relating to the transactions contemplated
by this Agreement as such Purchaser or its counsel may reasonably request.
2.08 Fees and Expenses. The Company shall have reimbursed certain Purchasers
for the fees and expenses as and to the extent provided in Section 6.01
hereof.
2.09 Compliance with Applicable Laws. The purchase of Stock by each Purchaser
hereunder shall not be prohibited by any applicable law or governmental
regulation, shall not subject such Purchaser to any penalty, liability or,
in such Purchaser's good faith judgment, other onerous conditions under or
pursuant to any applicable law or governmental regulation, and shall be
permitted by laws and regulations of the jurisdictions to which such
Purchaser is subject.
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2.10 Waiver. Any condition specified in this Section 2 may be waived only if
such waiver is set forth in a writing executed by such Purchaser.
SECTION 3. COVENANTS.
3.01 Affirmative Covenants. So long as any Purchaser holds any Stock, the
Company shall, and shall cause each Subsidiary to comply with all
applicable laws, rules and regulations of all governmental authorities,
the violation of which could reasonably be expected to have a material
adverse effect upon the financial condition, operating results, assets or
operations of the Company and its Subsidiaries taken as a whole, and pay
and discharge when payable all material taxes, assessments and
governmental charges (except to the extent the same are being contested in
good faith and adequate reserves therefor have been established).
3.02 Public Disclosures. The Company shall not, nor shall it permit any
Subsidiary to, disclose any Purchaser's name or identity as an investor in
the Company in any press release or other public announcement or in any
document or material filed with any governmental entity, without the prior
written consent of such Purchaser, unless such disclosure is required by
applicable law or governmental regulations or by order of a court of
competent jurisdiction, in which case prior to making such disclosure the
Company shall give written notice to such Purchaser describing in
reasonable detail the proposed content of such disclosure and shall permit
such Purchaser to review and comment upon the form and substance of such
disclosure.
3.03 Financial Statements and Budget Information.
(a) At any time prior to the Company's Initial Public Offering,
the Company shall deliver to each Investor (so long as such Investor holds
any Stock) and to each holder of at least five percent (5%) of the
outstanding Series A Preferred Stock or at least five percent (5%) of the
outstanding Common Stock:
(i) Periodic Statements. As soon as available but in any event
within thirty (30) days after the end of each of thirteen (13)
twenty-eight (28) day accounting periods in each fiscal year (except for
the first three sets of financial statements required under this
subsection, which shall be due within forty-five (45) days after the
first, second and third month ending after the Closing Date), unaudited
consolidated statements of income and cash flows of the Company and its
Subsidiaries for such period and for the period from the beginning of the
fiscal year to the end of such twenty-eight (28) day period, and
consolidated balance sheets of the Company and its Subsidiaries as of the
end of such period, all certified on behalf of the Company by an
appropriate responsible officer as being complete and correct and fairly
presenting, in accordance with GAAP, consistently applied, the financial
position and results of operations of the Company and its Subsidiaries,
subject to the absence of footnote disclosures and to normal year-end
adjustments; and
(ii) Annual Statements. As soon as available, but not later than
one hundred five (105) days after the end of each fiscal year of the
Company, a copy of the audited
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consolidated balance sheet of the Company as at the end of such year and
the related consolidated statements of income or operations, shareholders'
equity and cash flows for such fiscal year, in conformity with GAAP
applied on a basis consistent with prior years.
(iii) Budget. Within ninety (90) days after the beginning of each
fiscal year, an annual budget prepared on a monthly basis for VICORP and
its Subsidiaries.
(b) Each Purchaser acknowledges that the information provided to
Purchasers pursuant to this Section 3.03 is confidential and not for
dissemination to any person not a party to this Agreement (other than
advisors of such Purchaser who agree to maintain the confidentiality of
such information) without the prior written consent of the Company.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
As a material inducement to the Purchasers to enter into this Agreement
and purchase the Stock, the Company hereby represents and warrants to each
Purchaser that as of the Closing:
4.01 Organization and Corporate Power. Each of the Company and VICORP is a
corporation duly organized, validly existing and in good standing under
the laws of its state of organization. Each of the Company and VICORP is
qualified to do business in every jurisdiction in which such entity
currently conducts, and presently proposes to conduct, its business. Each
of the Company and VICORP has all requisite corporate or limited liability
company power and authority and all material licenses, permits and
authorizations necessary to own and operate its properties, to carry on
its business as now conducted and presently proposed to be conducted and
to carry out the transactions contemplated by this Agreement.
4.02 Capital Stock and Related Matters.
(a) As of the Closing and immediately thereafter, the authorized
capital stock of the Company shall consist of 3,000,000 shares of Stock,
of which (i) 100,000 shares shall be designated as Series A Preferred
Stock, 69,428.898 shares of which shall be issued and outstanding pursuant
to this Agreement and 1,571.102 shares of which shall be reserved for
issuance upon exercise of the Preferred Stock Options, (ii) 100,000 shares
of which are undesignated preferred stock, none of which are outstanding
as of the Closing, and (iii) 2,800,000 shares shall be designated as
Common Stock, (A) 1,440,000 shares of which shall be issued and
outstanding pursuant to this Agreement and the Management Agreements with
the Executives, (B) 22,800 shares of which shall be issued and outstanding
to other management employees of the Company, (C) 37,200 shares of which
shall be reserved for issuance to additional executives or management
employees of the Company or its Subsidiaries, and (D) 95,745 shares of
which shall be reserved for issuance upon the exercise of the Warrants. As
of the Closing, the Company shall not have outstanding any stock or
securities convertible or exchangeable for any shares of its capital stock
or containing any profit participation features, nor shall it have
outstanding any rights or options to subscribe for or to purchase its
capital stock or any stock or securities convertible into or exchangeable
for its capital stock or any stock appreciation
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rights or phantom stock plans other than pursuant to and as contemplated
by this Agreement and the Management Agreements. As of the Closing, the
Company shall not be subject to any obligation (contingent or otherwise)
to repurchase or otherwise acquire or retire any shares of its capital
stock or any warrants, options or other rights to acquire its capital
stock, except pursuant to this Agreement, the Stockholders Agreement and
the Management Agreements. As of the Closing, all of the outstanding
shares of the Company's capital stock shall be validly issued, fully paid
and nonassessable.
(b) There are no statutory or, to the best of the Company's
knowledge, contractual stockholders' preemptive rights or rights of
refusal with respect to the issuance of the Stock hereunder or the
issuance of the Stock pursuant to Section 1.02 hereof, except as expressly
provided herein. Based in part on the investment representations of the
Purchasers in Section 6.03 hereof and of each of the Executives in Section
1(c) of their respective Management Agreements, the Company has not
violated any applicable federal or state securities laws in connection
with the offer, sale or issuance of any of its capital stock, and the
offer, sale and issuance of the Stock hereunder and pursuant to Section
1.02 hereof do not and will not require registration under the Securities
Act or any applicable state securities laws. To the best of the Company's
knowledge, there are no agreements between the Company's stockholders with
respect to the voting or transfer of the Company's capital stock or with
respect to any other aspect of the Company's affairs, except for the
Stockholders Agreement and the Management Agreement.
4.03 Authorization; No Breach. The execution, delivery and performance of this
Agreement, the Management Agreement, the Employment Agreement, the
Stockholders Agreement, the Professional Services Agreement, the
Registration Rights Agreement and the Acquisition Agreement (hereinafter
collectively called the "Agreements") and the transactions contemplated
thereby, the filing of the Certificate of Incorporation and the issuance
of the Stock have been duly authorized by the Company and VICORP, as
applicable, and, when delivered and paid for by their respective
Purchasers pursuant to this Agreement, the shares of Stock will be validly
issued, fully paid and non-assessable. The Agreements and the Certificate
of Incorporation each constitute a valid and binding obligation of the
Company, enforceable in accordance with its terms. The execution and
delivery by the Company of the Agreements and all other agreements
contemplated hereby to which the Company is a party, the offering, sale
and issuance of the Stock hereunder, the filing of the Certificate of
Incorporation and the fulfillment of and compliance with the respective
terms hereof and thereof by the Company do not and will not (i) conflict
with or result in a breach of the terms, conditions or provisions of, (ii)
constitute a default under, (iii) result in the creation of any lien,
security interest, charge or encumbrance upon the Company's or any of its
Subsidiaries' capital stock or assets, (iv) give any third party the right
to modify, terminate or accelerate any obligation under, (v) result in a
violation of; or (vi) require any authorization, consent, approval,
exemption or other action by or notice to any court or administrative or
governmental body pursuant to, the Certificate of Incorporation or bylaws
of the Company, or any law, statute, rule or regulation to which the
Company or any of it Subsidiaries is subject, or any agreement,
instrument, order, judgment or decree to which the Company or any of its
Subsidiaries is a party or by which it is bound.
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4.04 Closing Dates. The representations and warranties of the Company contained
in this Section 4 and elsewhere in this Agreement and all information
contained in any exhibit, schedule or attachment hereto or in any writing
delivered by, or on behalf of, the Company to the Purchasers shall be true
and correct in all material respects on the date of the Closing as though
then made, except as affected by the transactions expressly contemplated
by this Agreement.
SECTION 5. DEFINITIONS.
For the purposes of this Agreement, the following terms have the meanings
set forth below:
5.01 "Affiliate" of any particular person or entity means any other person or
entity controlling, controlled by or under common control with such
particular person or entity and, for any Purchaser that is a partnership,
will also include any general or limited partner of such Purchaser.
5.02 "Governing Body" means (i) in the case of a corporation, that
corporation's Board of Directors, and (ii) in the case of a limited
liability company, that company's Board of Managers or Board of Members,
if any.
5.03 "Initial Public Offering" means the initial offering by the Company of
shares of Common Stock pursuant to a public distribution under the
Securities Act.
5.04 "Officer's Certificate" means a certificate signed by the Company's
president or its chief financial officer, stating that (i) the officer
signing such certificate has made or has caused to be made such reasonable
investigations as are necessary in order to permit him to verify the
accuracy of the information set forth in such certificate and (ii) to the
best of such officer's knowledge, such certificate does not misstate any
material fact and does not omit to state any fact necessary to make the
certificate not misleading.
5.05 "Organizational Documents" means, (i) in the case of a corporation, that
corporation's charter and by-laws, (ii) in the case of a limited liability
company, that company's articles or certificate of organization and
operating agreement, if any, and (iii) in the case of a partnership, the
partnership agreement.
5.06 "Person" means an individual, a partnership, a limited liability company,
a corporation, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
5.07 "Preferred Stock Options" means options issued to certain Executives to
purchase a total of 1,571.102 shares of Series A Preferred Stock.
5.08 "Securities Act" means the Securities Act of 1933, as amended, or any
similar federal law then in force.
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5.09 "Subsidiary" means, with respect to any Person, any corporation, limited
liability company, partnership, association or other business entity of
which (1) if a corporation, a majority of the total voting power of shares
of stock entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the
time owned or controlled, directly or indirectly, by that Person or one or
more of the other Subsidiaries of that Person or a combination thereof, or
(ii) if a limited liability company, partnership, association or other
business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or
indirectly, by any Person or one or more Subsidiaries of that Person or a
combination thereof. For purposes hereof, a Person or Persons shall be
deemed to have a majority ownership interest in a limited liability
company, partnership, association or other business entity if such Person
or Persons shall be allocated a majority of limited liability company,
partnership, association or other business entity gains or losses or shall
be or control any managing director or general partner of such limited
liability company, partnership, association or other business entity.
5.10 "Warrants" means the common stock purchase warrants entitling the holders
thereof to purchase shares of Common Stock, subject to adjustment as
provided therein, issued pursuant that certain Investment Agreement
between the Company and the purchasers named therein, dated of even date
herewith.
SECTION 6. MISCELLANEOUS.
6.01 Expenses. The Company agrees to pay (i) as a transaction fee, One Million
Dollars ($1,000,000) to WPP, (ii) the fees and expenses of WPP, including
but not limited to their legal counsel and accountants, arising in
connection with the negotiation and execution of this Agreement, the
Acquisition Agreement and the consummation of the transactions
contemplated by this Agreement and the Acquisition Agreement, and (iii)
the legal and accounting fees and related reasonable expenses incurred by
WPP with respect to any amendments or waivers under or in respect of this
Agreement, the Acquisition Agreement, the Stockholders Agreement, the
Registration Rights Agreement, the Warrants and the Certificate of
Incorporation.
6.02 Remedies. Each holder of Stock shall have all rights and remedies set
forth in this Agreement and the Certificate of Incorporation and all
rights and remedies which such holders have been granted at any time under
any other agreement or contract and all of the rights which such holders
have under any law.
6.03 Purchaser's Investment Representations. Each Purchaser hereby represents
the following:
(a) Such Purchaser is acquiring the Stock purchased hereunder at
the Closing for its own account with the present intention of holding such
securities for purposes of investment, and has no intention of selling
such securities in a public distribution in violation of the federal
securities laws. Each certificate for the Stock shall be imprinted with a
legend in substantially the form set forth in Section 6.04.
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(b) Such Purchaser has received all the information such Purchaser
considers necessary or appropriate for deciding whether to acquire the
Stock. Such Purchaser further represents that such Purchaser has had an
opportunity to ask questions and receive answers from the Company
regarding the terms and conditions of the Stock and the business,
properties, prospects and financial condition of the Company.
(c) Such Purchaser is an investor in securities of privately held
companies and acknowledges that such Purchaser can bear the economic risk
of such Purchaser's investment, and has such knowledge and experience in
financial or business matters that such Purchaser is capable of evaluating
the merits and risks of the purchase of the Stock.
(d) Such Purchaser is an "accredited investor" as such term is
defined in Regulation D of the Securities Act or is an employee of the
Company or its Affiliates.
(e) Such Purchaser understands that the Stock is not currently
being registered under the Securities Act by reason of the contemplated
issuance in a transaction exempt from registration and prospectus delivery
requirements of the Securities Act pursuant to Section 701, Regulation D
and/or Section 4(2) thereof.
6.04 Legend. Each certificate for Stock shall be imprinted with a legend in
substantially the following form:
"The securities represented by this certificate were originally
issued on ___________, 2003 and have not been registered under the
Securities Act of 1933, as amended. The transfer of the securities
represented by this certificate is subject to the conditions
specified in the Stockholders Agreement dated as of ____________,
2003, among the issuer (the "Company") and certain investors, and
the Company reserves the right to refuse the transfer of such
securities until such conditions have been fulfilled with respect to
such transfer. A copy of such conditions shall be furnished by the
Company to the holder hereof upon written request and without
charge."
6.05 Additional Purchasers. Subject to the terms of the Stockholders Agreement
and this Agreement, the Company and/or any of the Purchasers may sell
shares of the Stock to any Person, and in such event, by an amendment to
this Agreement in the form of a supplement to this Agreement, the Company
may permit such Person to become a party to this Agreement and succeed to
all of the rights and obligations of an "Investor" hereunder without
requiring the consent of any of the other parties to this Agreement. At
the time of execution of each supplement to this Agreement, EXHIBIT C
shall be revised accordingly.
6.06 Consent to Amendments. Except as otherwise expressly provided herein, the
provisions of this Agreement may be amended or waived at any time only by
the written agreement of (i) the Company; (ii) WPP, so long as WPP owns at
least twenty percent (20%) of the outstanding Common Stock; (iii)
Purchasers holding not less than a majority of the Common Stock issued and
outstanding at the time, calculated on a fully-diluted basis and
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including, without limitation, Common Stock issuable upon the exercise of
the Warrants; and (iv) Purchasers holding not less than a majority of the
Preferred Stock issued and outstanding at the time. Notwithstanding the
foregoing, no provision of this Agreement may be amended or waived if such
amendment or waiver of any provisions would have the effect of limiting
any benefit of, imposing additional obligations on or waiving any rights
of any of the Purchasers or treating preferentially in any way any
Purchaser over other Purchasers except by written agreement of the
Purchaser affected thereby. No other course of dealing between the Company
and the holder of any Stock or any delay in exercising any rights
hereunder or under the Certificate of Incorporation shall operate as a
waiver of any rights of any such holders. For purposes of this Agreement,
shares of Stock held by the Company or any Subsidiaries shall not be
deemed to be outstanding.
6.07 Survival of Representations and Warranties. All representations and
warranties contained herein or made in writing by any party in connection
herewith shall survive the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby, regardless of
any investigation made by the Purchasers or on their behalf with respect
to any claim; provided that any such claim must be made by the Purchasers
in writing and delivered to the Company within three (3) years of the
Closing.
6.08 Successors and Assigns. Except as otherwise expressly provided herein, all
covenants and agreements contained in this Agreement by or on behalf of
any of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto whether so
expressed or not. In addition, and whether or not any express assignment
has been made, the provisions of this Agreement which are for any
Purchaser's benefit as a purchaser or holder of Stock are also for the
benefit of, and enforceable by, any subsequent holder of such Stock. The
rights and obligations of each Purchaser under this Agreement and the
agreements contemplated hereby may be assigned by such Purchaser at any
time in whole or in part to any investment fund managed by Wind Point
Investors, L.L.C. or any successor thereto or Affiliate thereof, or as
otherwise permitted by this Agreement, the Stockholders Agreement or the
Management Agreements, as the case may be.
6.09 Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the
remainder of this Agreement.
6.10 Counterparts. This Agreement may be executed in two or more counterparts,
any one of which need not contain the signatures of more than one party,
but all such counterparts taken together shall constitute one and the same
agreement.
6.11 Descriptive Headings; Interpretation. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part
of this Agreement. The use of the word "including" in this Agreement shall
be by way of example rather than by limitation.
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6.12 Governing Law. The corporate law of the State of Delaware shall govern all
issues concerning the relative rights of the Company and its stockholders.
All other questions concerning the construction, validity and
interpretation of this Agreement and the exhibits and schedules hereto
shall be governed by and construed in accordance with the internal laws of
the State of Illinois, without giving effect to any choice of law or
conflict of law provision or rule (whether of the State of Illinois or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Illinois.
6.13 Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be
in writing and shall be deemed to have been given (a) when delivered
personally to the recipient, (b) one (1) business day following deposit
with a reputable express courier service for next day delivery (charges
prepaid), (c) three (3) business days after it is mailed to the recipient
by certified or registered mail, return receipt requested and postage
prepaid, or (d) one (1) business day after receipt is electronically
confirmed, if sent by fax (provided that a hard copy shall be promptly
sent by first class mail, postage prepaid). Such notices, demands and
other communications shall be sent to the Purchasers and to the Company at
the address indicated below or to such other address or to the attention
of such other person as the recipient party has specified by prior written
notice to the sending party.
If to the Company
VI Acquisition Corp.
c/o Wind Point Partners
000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Tel.: (000) 000-0000
Attn.: Xxxxxxx X. Xxxxx
If to WPP, to:
Wind Point Partners IV, L.P.
Wind Point Partners V, L.P.
Wind Point IV Executive Advisor Partners, L.P.
Wind Point Associates IV, LLC
000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Tel: (000) 000-0000
Attn: Xxxxxxx X. Xxxxx
with a copy to:
11
Xxxxxxxx & Xxxxxx, Ltd.
00 X. Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Tel: (000) 000-0000
Attn: Xxxx X. Xxxxxxx, Esq.
If to Mid Oaks, to:
Mid Oaks Investments LLC
000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Tel: (000) 000-0000
Attn: Xxxxx X. Xxxxxxxx
with a copy to:
Altheimer & Xxxx
00 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Fax: (000) 000-0000
Tel: (000) 000-0000
Attn: Xxxxx X. Xxxxxxxxxx
If to AGE, to:
X.X. Xxxxxxx Capital, Inc.
Xxx Xxxxx Xxxxxxxxx
Xx. Xxxxx, XX 00000
Fax: (000) 000-0000
Tel: (000) 000-0000
Attn: Xxxxxxxx X. Xxxx
If to Xxxxxx, van Benthuysen or an Executive, to his or her address set
forth on the Company's records.
6.14 Waiver of Jury Trial. Each of the parties hereto hereby irrevocably waives
any and all right to trial by jury of any claim or cause of action in any
legal proceeding arising out of or related to this Agreement or the
transactions or events contemplated hereby or any course of conduct,
course of dealing, statements (whether verbal or written) or actions of
any party hereto. The parties hereto each agree that any and all such
claims and causes of action shall be tried by a court trial without a
jury. Each of the parties hereto further waives any right to seek to
consolidate any such legal proceeding in which a jury trial has been
waived with any other legal proceeding in which a jury trial cannot or has
not been waived.
12
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
THE COMPANY:
VI ACQUISITION CORP.
By: /s/ Xxxxx Xxxxxx
------------------------------------------
Name: Xxxxx Xxxxxx
Its: Executive Vice President
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
VI Acquisition Corp.
Stock Purchase Agreement
S-1
THE INVESTORS:
WIND POINT PARTNERS IV, L.P.
By: Wind Point Investors IV, L.P.
Its: General Partner
By: Wind Point Advisors LLC
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxx
Its: Managing Member
By: /s/ Xxxxx X. XxxXxxxx
-----------------------------------------------
Name: Xxxxx X. XxxXxxxx
Its: Managing Member
WIND POINT PARTNERS V, L.P.
By: Wind Point Investors V, L.P.
Its: General Partner
By: Wind Point Advisors LLC
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxx
Its: Managing Member
By: /s/ Xxxxx X. XxxXxxxx
-----------------------------------------------
Name: Xxxxx X. XxxXxxxx
Its: Managing Member
[INVESTOR SIGNATURES CONTINUED ON FOLLOWING PAGE]
VI Acquisition Corp.
Stock Purchase Agreement
S-2
MID OAKS INVESTMENTS LLC
By: /s/ Xxxxx Xxxxxxxx
------------------
Name: Xxxxx Xxxxxxxx
Its: Chairman and CEO
[INVESTOR SIGNATURES CONTINUED ON FOLLOWING PAGE]
VI Acquisition Corp.
Stock Purchase Agreement
S-3
X.X. XXXXXXX PRIVATE EQUITY PARTNERS QP II, L.P.
By: X.X. Xxxxxxx Capital, Inc.
Its: General Partner
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Its: Vice President
X.X. XXXXXXX PRIVATE EQUITY PARTNERS II, L.P.
By: X.X. Xxxxxxx Capital, Inc.
Its: General Partner
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Its: Vice President
[INVESTOR SIGNATURES CONTINUED ON FOLLOWING PAGE]
VI Acquisition Corp.
Stock Purchase Agreement
S-4
/s/ Xxxxx Xxxxxx
---------------------------------------------------
XXXXX XXXXXX
/s/ Xxxxxx Xxx Xxxxxxxxxx
--------------------------------------------------
XXXXXX XXX XXXXXXXXXX
[INVESTOR SIGNATURES CONTINUED ON FOLLOWING PAGE]
VI Acquisition Corp.
Stock Purchase Agreement
S-5
WIND POINT IV EXECUTIVE ADVISOR PARTNERS, L.P.
By: Wind Point Investors IV, L.P.
Its: General Partner
By: Wind Point Advisors LLC
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxx
Its: Managing Member
WIND POINT ASSOCIATES IV, LLC
By: Wind Point Investors IV, L.P.
Its: Manager
By: Wind Point Advisors LLC
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxx
Its: Managing Member
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
VI Acquisition Corp.
Stock Purchase Agreement
S-6
EXECUTIVES:
/s/ Xxxxxx Xxxxxxxx
---------------------------------------------------
Xxxxxx Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxxxxx
---------------------------------------------------
Xxxxxx X. Xxxxxxxxxx
/s/ Xxxxxxx X. Xxxxxx
---------------------------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxxx
---------------------------------------------------
Xxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
---------------------------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
---------------------------------------------------
Xxxxxx X. Xxxxxxx
VI Acquisition Corp.
Stock Purchase Agreement
S-7
LIST OF EXHIBITS
Exhibit A Acquisition Agreement
Exhibit B Amended and Restated Certificate of Incorporation
Exhibit C Stock to be Purchased
Exhibit D Form of Management Agreement
Exhibit E Form of Employment Agreement
Exhibit F Form of Stockholders Agreement
Exhibit G Form of Professional Services Agreement
Exhibit H Form of Registration Rights Agreement
