EXHIBIT 10.15
STOCK PURCHASE AND LOAN AGREEMENT
This Stock Purchase, Stock Pledge, and Loan Agreement ("Agreement") is made
as of December 21, 1998, by and between ANNIE'S HOMEGROWN, INC. ("Company") and
Xxxxxxx Xxxxxxxxx Xxxxxx ("Key Employee").
RECITALS
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WHEREAS, Key Employee has performed and is expected to continue to perform
valuable services for the Company;
WHEREAS, the Company granted to Key Employee certain incentive stock
options ("Options") pursuant to the Company's stockholder-approved 1990
Incentive Stock Option Plan;
WHEREAS, the Options expire on December 30, 1998; and
WHEREAS, to enable Key Employee to purchase up to Forty Three Thousand
Twenty-One (43,021) shares of the Company's common stock ($.001 par value)
("Shares") pursuant to the Options, the Company and Key Employee desire the
Company to make a personal loan ("Loan") to Key Employee subject to the terms
and conditions of this Agreement.
AGREEMENT
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NOW, THEREFORE, in consideration of the covenants, duties, terms, and
conditions set forth in this Agreement, the parties agree as follows:
1. Share Purchase. Subject to the terms and conditions stated in this
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Agreement, the Company hereby agrees to sell to Key Employee and Key Employee
agrees to purchase 43,021 Shares at the price of $1.005 per Share.
2. Loan. Subject to the terms and conditions stated in this Agreement, the
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Company hereby agrees to loan Key Employee $43,236.11. The amount of the Loan is
equal to the purchase price of 43,021 Shares at $1.005 per Share.
3. Use of Proceeds. Key Employee agrees to use all of the proceeds from the
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Loan to purchase from the Company 43,021 Shares at the price of $1.005 per
Share.
4. Interest. The outstanding principal amount of the Loan shall bear interest
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("Interest") at the rate of 4.51%, compounded annually, from the date hereof to
the date of payment. This interest rate is equal to the Mid-Term Applicable
Federal Rate as defined in Section 1274(d) of the Internal Revenue Code of 1986,
as amended.
5. Payment. Interest on any outstanding principal balance shall be payable
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annually on December 30th of each year commencing December 30, 1998, subject to
(i) acceleration of payment under the circumstances described below in Section 8
of this Agreement, and (ii) payment by the
Company under Section 6 of this Agreement. The outstanding principal balance of
the Loan, ("Principal Amount"), shall be due and payable in full on December 30,
2003 (the "Maturity Date"), subject to (i) acceleration of payment on
termination of employment under the circumstances described below in Section 8
of this Agreement, and (ii) the reductions provided under Section 6 of this
Agreement.
6. Payment of Interest: Reduction of Principal Amount.
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6.1. Payment of Interest. If, as of December 29 of each year, Key Employee
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is still employed with the Company, the Company agrees to pay, on Key Employee's
behalf, all Interest associated with the Loan. Any Interest paid by the Company
on Key Employee's behalf will not be distributed to Key Employee but, rather,
will be automatically applied against Key Employee's Interest payment
obligations under this Agreement. Any Interest paid by the Company on Key
Employee's behalf will be deemed to be additional compensation income to Key
Employee.
6.2. Reduction of Principal Amount. The Company agrees to reduce the
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Principal Amount as follows:
(a) If, as of December 29, 1999, Key Employee is still employed by the
Company, the Company agrees to forgive $8,647.22 of the Principal Amount;
(b) If, as of December 29, 2000, Key Employee is still employed by the
Company, the Company agrees to forgive an additional $8,647.22 of the Principal
Amount;
(c) If, as of December 29, 2001, Key Employee is still employed by the
Company, the Company agrees to forgive an additional $8,647.22 of the Principal
Amount;
(d) If, as of December 29, 2002, Key Employee is still employed by the
Company, the Company agrees to forgive an additional $8,647.22 of the Principal
Amount;
(e) If, as of December 29, 2003, Key Employee is still employed by the
Company, the Company agrees to forgive the remaining $8,647.22 of the Principal
Amount.
It is the parties intention that, if Key Employee continues to be employed by
the Company as of December 29, 2003, the Principal Amount will be completely
forgiven.
6.3. Change in Control. In the event that a single person or entity
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(other than the current shareholders of the Company) acquires more than 50% of
the outstanding stock of the Company, then the full amount of the Principal
Amount not yet paid plus all accrued interest thereon, will be due and payable
in accordance with Section 5 and Section 8 shall not apply.
7. Pledge of Stock.
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7.1. Pledged Shares. Key Employee's obligations under this Agreement are
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secured by the Shares, and Key Employee hereby grants the Company a security
interest in the Shares (the "Pledged
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Shares"). The foregoing security interest shall constitute a first priority
interest to secure the payment of the Principal Amount as such amount is reduced
by Section 6 of this Agreement. All certificates representing the Shares, if any
shall have been issued, shall be fully endorsed in blank by Key Employee and
delivered by Key Employee to the Company.
7.2. Rights of the Company as Secured Party. The Company shall have
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all rights and remedies set forth in this Agreement and all other rights of a
secured party at law or in equity.
7.3. Rights Regarding Pledged Shares. The Company has the right to deliver
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any or all of the Pledged Shares to any person, to have any or all of the
Pledged Shares registered in its name or in the name of any other person, and
Key Employee irrevocably appoints the Company its attorney-in-fact authorized at
any time during the term of this Agreement to take any actions or exercise any
rights available to the Company under this Agreement.
7.4. Voting Rights. Key Employee hereby grants the Company the right to
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vote the Pledged Shares until either Key Employee makes full payment of the
Principal Amount and any applicable Interest or the Principal Amount is
completely forgiven pursuant to Section 6.2 of this Agreement.
7.5. Key Employee's Representations Regarding Shares. Key Employee
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represents that, as of the date of this Agreement, Key Employee has not taken
any action that would result in the Pledged Shares being subject to any adverse
claims, liens, or encumbrances (other than the pled-e under this Agreement),
and, to his knowledge, there are no adverse claims, liens, or encumbrances on
the Pledged Shares as of the date of this Agreement.
7.6. Release of Security. As the Principal Amount is reduced pursuant to
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Section 6, Shares (at a value of $1.005/Share for this purpose) will be released
from the pledge to Key Employee, i.e., 20% of the Shares after one (1) year, an
additional 20% after two (2) years, an additional 20% after three (3) years, an
additional 20% after (4) years, and the balance after five (5) years of
employment. Upon full payment of the Principal Amount and any applicable
Interest or complete forgiveness of the Principal Amount pursuant to Section 6.2
of this Agreement, the Company shall cause the Shares representing the balance
of the Pledged Shares to Key Employee to be registered on the books of the
Company's transfer agent.
7.7. Remedies Related to Collateral. Upon an Event of Default (as defined
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in Section 11 of this Agreement), the Company may, in its sole discretion and
with or without further notice to Key Employee (in addition to all rights or
remedies available at law or equity or otherwise): (i) register the Pledged
Shares in the name of the Company or in any such name as the Company may decide,
and (ii) exercise any rights provided to a secured party under the applicable
commercial code.
8. Termination of Employment. Except in the event of a Change of Control, in
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which case Section 6.3 shall apply, if Key Employee ceases to be employed by
the Company, the Company may purchase the Shares sold to Key Employee as
provided in this section.
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8.1. Termination of Employment Before December 29, 2003. In the event of
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termination of Key Employee's employment with the Company before December 29,
2003, the Company shall be entitled to buy back from Key Employee, Shares
purchased pursuant to the terms of this Agreement, at a price equal to $1.005
per Share plus 140% of interest accrued and not yet forgiven on the Loan, as
follows:
(a) If Key Employee's employment is terminated before December 29,
1999, the Company will be entitled to buy back from key Employee all of the
Shares purchased pursuant to this Agreement;
(b) If Key Employee's employment is terminated on or after December
29, 1999 but before December 29, 2000, the Company will be entitled to buy back
from Key Employee 34,416 Shares purchased pursuant to this Agreement;
(c) If Key Employee's employment is terminated on or after December
29, 2000 but before December 29, 2001, the Company will be entitled to buy back
from Key Employee 25,812 Shares purchased pursuant to this Agreement;
(d) If Key Employee's employment is terminated on or after December
29, 2001 but before December 29, 2002, the Company will be entitled to buy back
from Key Employee 17,208 Shares purchased pursuant to this Agreement;
(e) If Key Employee's employment is terminated on or after December
29, 2002 but before December 29, 2003, the Company will be entitled to buy back
from Key Employee 8,604 Shares purchased pursuant to this Agreement.
8.2. Company's Election Not to Buy Back Shares. In the event that the
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Company elects not to buy back Key Employee's Shares pursuant to the terms of
Section 8.1 of this Agreement, Key Employee may either (i) obtain title to the
Pledged Shares and a release of the Company's security interest in the Pledged
Shares by making full payment of the Principal Amount and any applicable
Interest within 45 days of the termination date, or (ii) sell some or all of the
Shares to the Company for the price of $1.005 per Share (plus accrued interest)
in repayment of the Principal Amount and any applicable Interest. The Company
will be obligated to purchase the Shares from Key Employee pursuant to this
Section 8.2 if the Company elects not to purchase the Shares pursuant to Section
8.1 of this Agreement and Key Employee elects to sell the Shares back to the
Company pursuant to the terms of this Section 8.2.
8.3. Termination of Employment On or After December 29, 2003 or Before
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December 29, 2003 for Other Than Good Cause. In the event of termination of
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Key Employee's employment with the Company on or after December 29, 2003 for any
reason whatsoever, or in the event that the Company terminates Key Employee's
employment before December 29, 2003 for other than Good Cause (as defined
below), the Company will not be entitled to buy back the Shares purchased by Key
Employee pursuant to this Agreement other than as provided in Section 8.4 of
this Agreement. Notwithstanding the foregoing, the parties may enter into a
subsequent agreement whereby the Company agrees to purchase Shares held by Key
Employee.
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As used herein, the term "Good Cause" shall mean (i) any act or
omission of gross negligence, willful misconduct, dishonesty, or fraud by Key
Employee in the performance of his duties, (ii) the failure or refusal of Key
Employee to perform the duties or to render the services assigned to him from
time to time, (iii) the charging or indictment of Key Employee in connection
with a felony or any misdemeanor involving dishonesty or moral turpitude, (iv)
the material breach by Key Employee of his fiduciary duty or duty of trust to
the Company, (v) death of Key Employee, or (vi) voluntary termination of
employment by Key Employee.
8.4. Principal Amount and Interest in the Event of Termination. In the
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event the Company exercises its right to buy back the Shares from Key Employee
pursuant to Section 8.1 of this Agreement, any outstanding Principal Amount and
any applicable Interest will be immediately due and payable and shall be applied
against amounts due to Key Employee for purchase of Shares. In the event that
the Company terminates Key Employee's employment before December 29, 2003 for
other than Good Cause, Key Employee may either (i) obtain title to the Pledged
Shares and a release of the Company's security interest in the Pledged Shares by
making full payment of the Principal Amount and any applicable interest within
45 days of the termination date, or (ii) sell Shares to the Company (and the
Company agrees to purchase the Shares) for the price of $1.005 per Share (plus
accrued interest) in repayment of the Principal Amount and any applicable
Interest.
9. Arbitration. If a dispute arises between the Company and Key Employee
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concerning this Agreement, the disputed matter shall be submitted to arbitration
in the City of San Francisco, California, in accordance with the commercial
arbitration rules of the American Arbitration Association ("AAA Rules"). Any
judgment upon the award rendered by the arbitrators may be entered in any court
having jurisdiction thereof. The arbitrators shall have the authority to grant
any equitable and legal remedies that would be available in any judicial
proceeding instituted to resolve the disputed matter. The arbitrators shall
apply the laws of the State of California in making any determination hereunder.
Notwithstanding anything to the contrary which may now or hereafter be contained
in the AAA Rules, the parties agree any such arbitration shall be conducted
before a panel of three arbitrators who shall be compensated for their services
at a rate to be determined by the American Arbitration Association in the event
the parties are not able to agree upon their rate of compensation. Each party
shall have the right to appoint one arbitrator (to be appointed within 20 days
of the notice of a dispute to be resolved by arbitration hereunder), and the two
arbitrators so chosen shall mutually agree upon the selection of the third,
impartial arbitrator. The majority decision of the arbitrators will be final
and conclusive upon the parties hereto.
10. Payments. Any payments due from Key Employee under this Agreement shall be
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made payable to Annie's Homegrown, Inc. and shall be sent to the Company's
offices at 000 Xxxx Xxxxxx, Xxxxxxxxx, XX 00000, Attention: Xxxx Xxxxx.
11. Event of Default. It shall be an event of default (an "Event of Default")
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if Key Employee fails to pay the Company pursuant to Section 5.
12. Right of Employment. Nothing herein shall confer upon Key Employee the
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right to continue in the employment of the Company nor affect any right which
the Company may have to terminate the employment of Key Employee.
13. Miscellaneous.
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13.1. This Agreement contains the full and complete understanding of the
parties and supersedes all prior representations, promises, agreements, and
warranties, whether oral or written.
13.2. This Agreement shall be governed by and interpreted according to the
laws of the Commonwealth of Massachusetts, without regard to the choice of law
provisions thereunder.
13.3. With respect to the Company, this Agreement shall inure to the
benefit of and be binding upon any successors or assigns of the Company. With
respect to Key Employee, this Agreement shall not be assignable but shall inure
to the benefit of estate of Key Employee or his legal successor upon death or
disability.
13.4. The captions of the various sections of this Agreement are inserted
only for convenience and shall not be considered in construing this Agreement.
13.5. This Agreement can be modified, amended, or any of its terms waived
only by a writing signed by both parties.
13.6. If any provision of this Agreement shall be held invalid, illegal,
or unenforceable, the remaining provisions of the Agreement shall remain in full
force and effect and the invalid, illegal, or unenforceable provision shall be
limited or eliminated only to the extent necessary to remove such invalidity,
illegality or unenforceability in accordance with the applicable law at that
time.
13.7. No remedy made available to the Company by any of the provisions of
this Agreement is intended to be exclusive of any other remedy. Each and every
remedy shall be cumulative and shall be in addition to every other remedy given
hereunder as well as those remedies existing at law, in equity, by statute, or
otherwise.
13.8. This Agreement may be executed in counterparts, each of which will
be considered an original and each of which will constitute one and the same
document.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date
specified in the first paragraph.
ANNIE'S HOMEGROWN, INC.
By:___________________________
Xxxx Xxxxx
Its: Chief Financial Officer
KEY EMPLOYEE:
_________________________
Xxxxxxx Xxxxxxxxx Luster
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