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Exhibit 10.10
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of January
28, 1997, is between INTREPID FOOD HOLDINGS, INC., a Delaware corporation (the
"Company"), and the persons and entities listed on Schedule 1.1 hereto (the
"Purchasers").
RECITALS
The Purchasers desire to purchase from the Company, and the Company
desires to issue to the Purchasers, in the aggregate, 70.353 shares of Series A
Preferred Stock of the Company, par value $0.001 per share (the "Preferred
Shares"), and 46.47 shares of Common Stock of the Company, par value $0.001 per
share (the "Common Shares;" the Common Shares and Preferred Shares are sometimes
referred to herein as the "Shares"), for an aggregate purchase price of $75,000,
all upon the terms and subject to the conditions set forth herein.
AGREEMENTS
In consideration of the recitals and the respective agreements,
covenants, representations and warranties contained herein and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
SALE AND PURCHASE OF SHARES
1.1 Sale and Purchase of Shares. Upon the terms and subject to the
satisfaction of the conditions set forth herein, and in reliance upon the
respective representations and warranties of the parties set forth herein, the
Company hereby agrees to sell to each of the Purchasers, and each Purchaser
severally and not jointly agrees to purchase from the Company, at the Closing
(as defined herein), the number of Common Shares and Preferred Shares,
respectively, set forth next to such Purchaser's name on Schedule 1.1, in
exchange for the payment of the total purchase price set forth next to such
Purchaser's name on Schedule 1.1.
1.2 Closing. The closing of the purchase and sale of the Shares
hereunder (the "Closing") will take place at the offices of Xxxxxxx & Xxxxxx,
Three First Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx on the date hereof or
at such other time, date and place as shall be mutually agreed by the Company
and the Purchasers. At the Closing:
(a) the Company will delivery to each Purchaser certificates for the
Common Shares and Preferred Shares purchased by such Purchasers, duly executed
and registered in the name of such person or entity; and
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(b) each Purchaser will deliver to the Company by wire transfer to any
account designated by the Company, a payment equal to the total purchase price
for such Shares being purchased by such Purchaser, as set forth on Schedule 1.1.
ARTICLE II
CONDITIONS TO CLOSING
The obligation of each Purchaser to purchase the Shares being purchased
by such Purchaser at the Closing is subject to the fulfillment to its
satisfaction of each of the following conditions:
2.1 Representations and Warranties Correct. The representations and
warranties made by the Company in Article III shall be true and correct when
made, and shall be true and correct as of the Closing as if made at the Closing.
2.2 Performance. All covenants, agreements and conditions contained in
this Agreement to be performed or complied with by the Company at or prior to
the Closing shall have been performed or complied with.
2.3 Registration Agreement. At or prior to the Closing, the Company,
the Purchasers and the other parties thereto shall have executed and delivered
the Amended and Restated Registration Agreement in the form of Exhibit A
attached hereto (the "Registration Agreement").
2.4 Stockholders Agreement. At or prior to the Closing, the Company,
the Purchasers and the other parties thereto shall have executed and delivered
the Amended and Restated Stockholders Agreement in the form of Exhibit B
attached hereto (the "Stockholders Agreement").
2.5. Legal Investment. As of the Closing, the purchase of the Shares by
each Purchaser shall be legally permitted by all laws and regulations to which
such Purchaser and the Company are subject.
2.6 Purchase by Purchasers. At the Closing, each Purchaser shall have
purchased the number of Shares set forth next to such Purchaser's name on
Schedule 1.1.
2.7. Other Documents and Proceedings. As of the Closing, all corporate
and other proceedings in connection with the transactions contemplated hereby,
and all documents and instruments incident to such transactions, shall be
satisfactory in form and substance to each Purchaser, and each Purchaser shall
have received at or prior to the Closing, all such documents as he or it shall
have requested.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
As a material inducement to Purchasers to enter into the transactions
contemplated by this Agreement, the Company represents and warrants to
Purchasers as follows:
3.1 Organization and Qualification. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
3.2 Corporate Power. The Company has all requisite corporate power and
authority to execute, deliver and perform this Agreement and to issue the Shares
to be issued hereunder, and to execute, deliver and perform all other
instruments, documents and agreements contemplated or required by the provisions
of this Agreement to be executed, delivered or performed by the Company.
3.3 Authorization of Transaction. The execution, delivery and
performance by the Company of this Agreement and the transactions contemplated
hereby (i) have been duly authorized by all necessary corporate action of the
Company, its officers, directors and stockholders and (ii) will not violate,
conflict with, result in any breach of any of the terms, conditions or
provisions of, constitute (with or without the passage of time or giving of
notice or both) a default under, or result in the creation of any lien or
encumbrance upon any property of the Company under the provisions of any law,
rule, regulation, judgment, writ, injunction, order, decree, agreement,
certificate of incorporation, by-law or other instrument to which the Company is
a party or by which the Company or any property of the Company may be bound.
3.4 Binding Obligation; Valid Issuance. This Agreement has been duly
executed by the Company and constitutes a valid and legally binding obligation
of the Company, enforceable in accordance with its terms except as the
enforceability may be limited by bankruptcy, insolvency or other similar laws of
general application affecting the enforcement of creditors' rights or by general
principles of equity.
3.5 Capitalization of Company. The Company's authorized capital stock
consists of 40,000 shares of Common Stock and 25,000 shares of Series A
Preferred Stock. After giving effect to the consummation at the Closing of the
transactions contemplated by this Agreement and consummation of the transactions
contemplated by that certain Stock Purchase Agreement, dated as of January 28,
1997, by and among the Company, Xxxxxxx X. Xxxx and the purchasers named
therein, the only shares of capital stock issued and outstanding, reserved for
issuance or committed to be issued will be:
(a) 14,333.33 fully paid and nonassessable shares of Common Stock, duly
issued and outstanding and owned of record and beneficially by the persons or
entities listed on Schedule 3.5;
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(b) 19,566.667 shares of fully paid and nonassessable Preferred Stock,
duly issued and outstanding and owned of record and beneficially by the persons
or entities listed on Schedule 3.5; and
(c) 333 shares of Common Stock reserved for issuance to Xxxxxxx X. Xxxx
pursuant to that certain Management Option Agreement, dated as of April 15,
1996, as amended and restated January 28, 1997, by and between Xxxxxxx X. Xxxx
and the Company (the "Founder Option Agreement").
Except as otherwise provided herein, in the Stockholders Agreement, in the
Founder Option Agreement or in that certain Employment Agreement, dated October
2, 1995, as amended, by and between the Company and Xxxxxxx X. Xxxx, there are
no outstanding preemptive, conversion or other rights, options, warrants or
agreements granted or issued by or binding upon the Company for the purchase or
acquisition of any shares of its capital stock or obligations to issue or grant
any of the foregoing or any outstanding capital appreciation, profit
participation or similar rights with respect to the Company or obligations to
issue or grant any such rights.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF PURCHASERS
Each Purchaser hereby severally and not jointly represents and warrants
to the other parties to this Agreement with respect to itself or himself that:
(a) such person is acquiring the Shares being acquired by him
or it for investment and not with a view to distributing all or any
part thereof in any transaction which would constitute a "distribution"
within the meaning of the Securities Act of 1933, as amended (the
"Securities Act");
(b) such person acknowledges that the Shares have not been
registered under the Securities Act of 1933, as amended, or any state
securities law, and except as provided in the Registration Agreement,
the Company is under no obligation to file a registration statement
with the Securities and Exchange Commission or any state securities
commission with respect to the Shares;
(c) such person has such knowledge and experience in financial
and business matters that he or it is capable of evaluating the merits
and risks of his or its investment in the Shares;
(d) such person is able to bear the complete loss of its or
his investment in the Shares (and, with respect to a Purchaser, is not
an entity formed solely to make this investment);
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(e) such person has had the opportunity to ask questions of,
and receive answers from, the Company and its management concerning the
Shares, and to obtain additional information; and
(f) such person or entity is an "accredited investor" (as
defined in Rule 501(a) of Regulation D promulgated under the Securities
Act).
ARTICLE V
COVENANTS OF THE COMPANY
5.1 Use of Proceeds. The Company will use the proceeds from the sale
hereunder (i) repay to Frontenac VI Limited Partnership ("Frontenac VI") the
Company's obligations under that certain $1,000,000 promissory note of the
Company payable to Frontenac VI (the "Bridge Note"), and the interest thereon;
(ii) for the payment of the Company's fees and expenses incurred in connection
with the transactions contemplated hereby and (iii) for general corporate
purposes.
5.2 Legend. Until (a) the securities represented by such certificate
are effectively registered under the Securities Act, or (b) the holder of such
securities delivers to the Company a written opinion of counsel to such holder
to the effect that such legend is no longer necessary under the Securities Act,
the Company will cause each certificate representing its securities to be
stamped or otherwise imprinted with the following legend:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and thus may
not be transferred unless so registered or unless an exemption from
registration is available."
ARTICLE VI
MISCELLANEOUS
6.1 Consent to Amendments; Waivers. The provisions of this Agreement
may be amended, and the Company may take any action herein prohibited, or omit
to perform any act herein required to be performed by it, only if the Company
has obtained the written consent of the holder or holders of a majority of the
Common Shares and a majority of the Preferred Shares. No other course of dealing
between the Company and the holder of any securities or any delay in exercising
any rights hereunder or under the Certificate shall operate as a waiver of any
rights of any such holders. Any waiver, permit, consent or approval of any kind
or character on the part of any party of any provisions or conditions of this
Agreement must be made in writing and shall be effective only to the extent
specifically set forth in such writing.
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6.2 Representation and Warranties. All representations and warranties
contained herein or made in writing by any party in connection herewith will
survive the execution and delivery of this Agreement.
6.3 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 will bind and inure to the benefit of the
respective successors and assigns of the parties hereto.
6.4 Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience of reference only and do not constitute a part of
and shall not be utilized in interpreting this Agreement.
6.5 Notices. Any notices required or permitted to be sent hereunder
shall be delivered personally or mailed, certified mail, return receipt
requested, or delivered by overnight courier service to the following addresses,
or such other address as any party hereto designates by written notice to the
Company, and shall be deemed to have been given upon delivery, if delivered
personally, three days after mailing, if mailed, or one business day after
delivery to the courier, if delivered by overnight courier service:
If to the Company to:
Intrepid Food Holdings, Inc.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: President
If to the Purchasers, to the addresses specified on Schedule 1.1
hereof.
6.6 Governing Law. The corporate law of Delaware will 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 the
internal law and not the law of conflicts, of the State of Illinois, and the
performance of the obligations imposed by this Agreement shall be governed by
the laws of the State of Illinois applicable to contracts made and wholly to be
performed in that state.
6.7 Exhibits and Schedules. All exhibits and schedules hereto are an
integral part of this Agreement.
6.8 Exchange of Certificates. Upon surrender by any holder to the
Company of any certificate or certificates evidencing Shares, the Company at its
expense will issue in exchange therefor, and deliver to such holder, a new
certificate or certificates representing such Shares, in such denomination or
denominations as may be requested by such holder. Upon receipt of
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evidence satisfactory to the Company of the loss, theft, destruction or
mutilation of any certificate representing any Shares, and in case of any such
loss, theft or destruction, upon delivery of an indemnity agreement satisfactory
to the Company (provided that in the case of a financial institution or other
institutional investor, its own agreement shall be deemed satisfactory to the
Company), or in case of any such mutilation, upon surrender and cancellation of
such certificate, the Company at its expense will issue and deliver to any such
holder a new certificate evidencing such Shares, in lieu of such lost, stolen,
destroyed or mutilated certificate.
6.9 Final Agreement. This Agreement, together with the Stockholders
Agreement and the Registration Agreement, constitutes the final agreement of the
parties concerning the matters referred to herein, and supersedes all prior
agreements and understandings.
6.10 Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original, and such counterparts together shall constitute one
instrument.
[Remainder of Page Intentionally Left Blank.
Signature page follows.]
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The parties hereto have executed and delivered this Agreement as of the
date first set forth above.
INTREPID FOOD HOLDINGS, INC., a
Delaware corporation
By: /s/ Xxxxxxx X. Xxxx
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Its: President
PURCHASERS:
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
/s/ Chance Bahadur
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Chance Bahadur
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
