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Exhibit 10.3
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ODWALLA, INC.
STOCK PURCHASE AGREEMENT
Dated as of February 11, 2000
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TABLE OF CONTENTS
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1. Agreement To Sell And Purchase Stock.................................................1
1.1 Sale and Purchase of Stock....................................................1
1.2 Payment of Purchase Price and Delivery of Certificates........................1
2. Closing Conditions...................................................................2
2.1 Conditions Precedent to the Obligations of the Company........................2
2.2 Conditions Precedent to the Obligations of the Investors......................3
3. Representations and Warranties of the Company........................................4
3.1 Organization; Good Standing; Qualification....................................4
3.2 Capitalization................................................................4
3.3 Subsidiaries..................................................................5
3.4 Authorization.................................................................5
3.5 Valid Issuance of the Stock...................................................6
3.6 Governmental and Third-Party Consents.........................................6
3.7 SEC Filings; Financial Statements.............................................6
3.8 No Changes....................................................................7
3.9 Compliance with Laws..........................................................7
3.10 Compliance with Other Instruments; No Conflict................................7
3.11 Litigation....................................................................8
3.12 Tax Returns and Payments......................................................8
3.13 Finders and Brokers; Fees.....................................................9
3.14 Rights of Registration........................................................9
3.15 Voting Rights.................................................................9
3.16 Labor Relations and Employee Matters..........................................9
3.17 No Other Agreements to Sell the Assets or Capital Stock of the
Company......................................................................10
3.18 Private Placement............................................................10
4. Representations and Warranties of the Investors.....................................10
4.1 Authorization................................................................10
4.2 Disclosure of Information....................................................10
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4.3 Status.......................................................................10
4.4 Investment Intent; Certain Restrictions......................................11
4.5 Restricted Securities........................................................11
5. Pre-Closing Covenants of the Company................................................11
5.1 Notification; Updates to Company Disclosure Schedule.........................11
5.2 Best Efforts.................................................................12
6. Pre-Closing Covenants of the Investors..............................................12
6.1 Best Efforts.................................................................12
7. Other Matters.......................................................................12
7.1 Restrictive Legend...........................................................12
7.2 California Securities Laws...................................................12
7.3 Public Disclosure............................................................13
8. Termination.........................................................................13
8.1 Termination Events...........................................................13
8.2 Termination Procedures.......................................................13
8.3 Effect of Termination........................................................14
8.4 Exclusivity of Termination Rights............................................14
9. Miscellaneous.......................................................................14
9.1 Further Assurances...........................................................14
9.2 Fees and Expenses............................................................14
9.3 Attorneys' Fees..............................................................14
9.4 Governing Law; Arbitration...................................................14
9.5 Successors and Assigns.......................................................15
9.6 Entire Agreement.............................................................15
9.7 Separability.................................................................15
9.8 Amendments...................................................................15
9.9 Notices......................................................................15
9.10 Publicity and Use of Confidential Information................................17
9.11 Counterparts.................................................................17
9.12 Delays or Omissions; Waivers.................................................17
9.13 Remedies Cumulative; Specific Performance....................................18
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9.14 Headings.....................................................................18
9.15 Construction.................................................................18
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ODWALLA, INC.
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is entered into as of
February 11, 2000, by and among ODWALLA, INC., a California corporation (the
"Company"), and the investors on Schedule I attached hereto (each, an
"Investor," and collectively, the "Investors").
RECITALS
A. The Company, Orange Acquisition Sub, a Maine corporation ("Merger Sub"),
Fresh Samantha, Inc., a Maine corporation ("Samantha"), and certain
other signatories thereto, have entered into that certain Agreement and
Plan of Merger, dated as of February 2, 2000 (the "Merger Agreement"),
to effectuate the merger (the "Merger") of Merger Sub with and into
Samantha with Samantha as the surviving corporation and wholly owned
subsidiary of the Company.
B. In connection with the Merger, pursuant to the terms and subject to the
conditions of this Agreement, the Investors wish to collectively
purchase Six Million Dollars ($6,000,000) of the Common Stock of the
Company (the "Common Stock," and such shares to be purchased pursuant to
this Agreement, the "Stock").
AGREEMENT
The Company and each of the Investors, intending to be legally bound,
agree as follows:
1. AGREEMENT TO SELL AND PURCHASE STOCK.
1.1 SALE AND PURCHASE OF STOCK.
Upon the terms and subject to the conditions set forth in this
Agreement, each Investor agrees, severally and not jointly, to purchase at the
Closing (as defined below), and the Company agrees to sell and issue to each
Investor at the Closing, the number of shares of Stock set forth next to such
Investor's name on Schedule I attached hereto for the purchase price (the
"Purchase Price") set forth next to such Investor's name on Schedule I attached
hereto.
1.2 PAYMENT OF PURCHASE PRICE AND DELIVERY OF CERTIFICATES.
(a) The closing (the "Closing") shall take place at the offices
of Xxxxxxxx & Xxxxxxxx LLP, 000 Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,
at 10:00 a.m. (Pacific time) on the first business date after the Merger Closing
Date (as defined below) or on such other date or at such other place or time as
the Company and the Investors may mutually agree (such date is hereinafter
referred to as the "Closing Date").
(b) At the Closing:
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(i) each Investor shall (i) pay the Purchase Price to the
Company by wire transfer of immediately available funds, and (ii) deliver the
documents and agreements required hereunder to be delivered by such Investor at
the Closing; and
(ii) the Company shall deliver (i) certificates
representing the Stock sold to the Investors pursuant to this Agreement, and
(ii) the other documents and agreements required hereunder to be delivered by
the Company at the Closing.
(c) The "Merger Closing Date" shall refer to that date upon which
all of the conditions set forth in Sections 4.1 and 4.2 of the Merger Agreement
are satisfied or waived.
2. CLOSING CONDITIONS.
2.1 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE COMPANY.
The Company's obligation to sell and issue the Stock at the Closing is
subject to the satisfaction of the following conditions:
(a) the representations and warranties made by the Investors in
Section 4 hereof shall be true and accurate in all material respects as of the
date of this Agreement and as of the Closing Date as though made on and as of
the Closing Date;
(b) all covenants and agreements contained in this Agreement to
be observed by the Investors on or prior to the Closing shall have been
performed or complied with in all material respects;
(c) each Investor shall have delivered the following documents to
the Company:
(i) the Shareholders' Rights Agreement, substantially in
the form attached hereto as Exhibit A (the "Rights Agreement"), duly executed by
each Investor;
(ii) a certificate (the "Investor Closing Certificate") of
each Investor, dated as of the Closing Date, and certifying to the satisfaction
of the conditions specified in Sections 2.1(a) and (b) with respect to such
Investor;
(d) each of the consents identified or required to be identified
in Part 3.6 of the Disclosure Schedule shall have been obtained and shall be in
full force and effect;
(e) the Merger shall have been consummated pursuant to all of the
material terms and conditions contained in the Merger Agreement as of the date
of this Agreement, including the conversion of the shares of Preferred Stock (as
defined below) held by Xxxxxxxxx (as defined below) into shares of Common Stock;
except to the extent (A) (i) any change in the material terms and conditions
contained in the Merger Agreement as of the date of this Agreement benefit the
Company, or (ii) the waiver or non-satisfaction of a condition contained in the
Merger Agreement is for the benefit of the Company, and (B) the Merger is
consummated, including the conversion of the shares of Preferred Stock held by
Xxxxxxxxx into shares of Common Stock; and
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(f) neither the consummation nor the performance of the
transactions contemplated by this Agreement (the "Transactions") will, directly
or indirectly (with or without notice or lapse of time), contravene or conflict
with or result in a violation of, or cause a material adverse effect on the
condition (financial or otherwise), assets, liabilities, obligations, business,
properties, prospects or results of operations (a "Material Adverse Effect") of
the Company as presently conducted or as proposed to be conducted, together with
its subsidiaries taken as a whole, as a result of, specifically, (i) a change in
any applicable legal requirement after the date of this Agreement or any federal
or state judgment, order, writ, decree, statute or regulation of any court,
regulatory body or administrative agency or other governmental body applicable
to the Company (an "Order") issued after the date of this Agreement, or (ii) any
legal requirement or Order that is proposed after the date of this Agreement by
or before any governmental body.
2.2 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE INVESTORS.
Each Investor's obligation to purchase the Stock at the Closing is
subject to the satisfaction of the following conditions:
(a) the representations and warranties made by the Company in
Section 3 hereof shall be true and accurate in all material respects as of the
date of this Agreement and as of the Closing Date as though made on and as of
the Closing Date;
(b) all covenants and agreements contained in this Agreement to
be observed by the Company on or prior to the Closing shall have been performed
or complied with in all material respects;
(c) the Company shall have delivered the following documents to
the Investors:
(i) the Rights Agreement, duly executed by the Company;
(ii) the legal opinion of Xxxxxxxx & Xxxxxxxx, LLP,
counsel to the Company, dated the Closing Date, in substantially the form of
Exhibit B;
(iii) a certificate (the "Company Closing Certificate")
executed on behalf of the Company by a senior executive officer of the Company,
dated as of the Closing Date, certifying to the satisfaction of the conditions
specified in Sections 2.2(a) and (b) with respect to the Company;
(d)there shall not have occurred and be continuing any material
disruption of, or material adverse change in, the conditions of financial,
banking or capital markets;
(e)there shall have been no event or circumstance after the date
of this Agreement that is reasonably likely to have a Material Adverse Effect on
the Company;
(f) neither the consummation nor the performance of the
Transactions will, directly or indirectly (with or without notice or lapse of
time), contravene or conflict with or result in a violation of, or cause a
Material Adverse Effect on the Company as a result of, specifically, (i) a
change in any applicable legal requirement after the date of this Agreement or
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any Order issued after the date of this Agreement, or (ii) any legal requirement
or Order that is proposed after the date of this Agreement by or before any
governmental body; and
(g)all of the material terms and conditions contained in the
Merger Agreement as of the date of this Agreement shall have been complied with
or satisfied, as the case may be, by the applicable party thereto; except to the
extent (i) any change in the material terms and conditions contained in the
Merger Agreement as of the date of this Agreement benefit the Company, or (ii)
the waiver or non-satisfaction of a condition contained in the Merger Agreement
is for the benefit of the Company.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Except as specifically set forth in the disclosure schedule provided by
the Company and attached hereto as Schedule II (the "Disclosure Schedule"), the
parts of which are numbered to correspond to the Section numbers of this
Agreement, the Company hereby represents and warrants to the Investors as
follows:
3.1 ORGANIZATION; GOOD STANDING; QUALIFICATION.
The Company is a corporation duly organized, validly existing, and in
good standing under the laws of the State of California, has all requisite
corporate power and authority to own and operate its properties and assets, to
lease the property or assets it operates as lessee and to carry on its business
as described in the Company SEC Reports (as defined in Section 3.7) filed on or
prior to the date of this Agreement (the "Existing Company SEC Reports"), to
execute and deliver this Agreement, to issue and sell the Stock and to carry out
the provisions of this Agreement. The Company is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in
which the character of the property owned or leased or the nature of the
business transacted by it makes qualification necessary, except where the
failure to be so qualified would not have or could not reasonably be expected to
have a Material Adverse Effect on the Company.
3.2 CAPITALIZATION.
As of January 27, 2000, the authorized capital stock of the Company
consisted of (i) 15,000,000 shares of Common Stock, of which: (A) 5,125,761
shares were issued and outstanding, (B) 1,351,865 shares were reserved for
issuance upon the exercise of outstanding options under the Company's stock
option plans, (C) 106,806 shares were reserved for issuance pursuant to the
exercise of the Warrants (as defined below), and (D) 1,265,319 shares were
reserved for issuance upon conversion of the Series A Preferred Stock; and (ii)
5,000,000 shares of preferred stock (the "Preferred Stock"), of which 1,265,319
shares had been designated Series A Preferred Stock, of which 1,074,666 shares
were issued and outstanding. The outstanding shares of Preferred Stock and
Common Stock have been duly authorized and validly issued in compliance with
applicable federal and state securities laws, are fully paid and nonassessable,
conform to the descriptions thereof in the Existing Company SEC Reports, and
were not issued in violation of or subject to (i) any preemptive rights or other
rights to subscribe for or to purchase securities or (ii) any liens,
preferential rights, priorities, claims, options, charges or other encumbrances
or restrictions, other than those created by (A) the Certificate of
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Determination filed in connection with the issuance of the Preferred Stock, (B)
the Investors' Rights Agreement (the "Original Rights Agreement"), dated as of
January 29, 1999, by and between the Company and Xxxxxxxxx-Xxxxx Partners III,
L.P. ("Xxxxxxxxx"), (C) the Warrant dated January 29, 1999 issued to Xxxxxxxxx
to purchase 75,000 shares of Common Stock (the "Xxxxxxxxx Warrant"), (D) the
Warrant dated February 9, 1999 issued to Xxxxxxxxx & Xxxxx LLC to purchase
24,806 shares of Common Stock (the "H&Q Warrant"), and (E) the Warrant dated May
21, 1997 issued to Sand Hill Capital LLC to purchase 7,000 shares of Common
Stock (the "Sand Hill Warrant" and collectively with the Xxxxxxxxx Warrant and
the H&Q Warrant, the "Warrants"). Except for (i) the rights and conversion of
the Preferred Stock, (ii) the options to purchase 1,351,865 shares of Common
Stock granted under the Company's stock option plans, (iii) the Warrants, and
(iv) the rights granted pursuant to the Original Rights Agreement, there are no
outstanding securities convertible into or exchangeable for capital stock of the
Company or any options, warrants, rights (including conversion or preemptive
rights, rights of first refusal, "tag along" rights, rights of co-sale or any
similar right), agreements or contracts for the purchase, subscription to or
acquisition of any shares of its capital stock from the Company, or contracts,
commitments, agreements, understandings or arrangements of any kind to which the
Company or any such holder of capital stock is a party relating to the issuance
of any capital stock of the Company, any such convertible or exchangeable
securities or any such options, warrants or rights. The issuance of Stock in the
Transactions will not result in any adjustment to the number of shares issuable
or the purchase price, conversion or exchange rate applicable to any option,
warrant, convertible or exchangeable security or similar right of the Company.
3.3 SUBSIDIARIES.
Except for the Merger Sub, the Company does not currently own or
control, directly or indirectly, any interest in any other corporation,
association or other business entity. The Company is not a participant in any
joint venture, partnership or similar arrangement.
3.4 AUTHORIZATION.
The Company has the requisite corporate power and authority to enter
into this Agreement and to perform its obligations hereunder. The execution and
delivery of this Agreement and the consummation by the Company of the
Transactions have been duly authorized by all necessary corporate action on the
part of the Company (other than approval of the Merger by the shareholders of
the Company). All corporate action necessary for the authorization, execution
and delivery of this Agreement, the performance of all obligations of the
Company hereunder at the Closing and the authorization, and issuance of the
Stock being issued pursuant to this Agreement has been taken or will be taken
prior to the Closing Date. This Agreement constitutes or will constitute as of
the Closing Date the valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms, except (i) as
limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of creditors' rights
generally, and (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies.
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3.5 VALID ISSUANCE OF THE STOCK.
The Stock to be issued to the Investors pursuant to this Agreement, when
issued and delivered in accordance with the terms of this Agreement for the
consideration expressed herein, will be duly and validly issued, fully paid, and
nonassessable, and will be free of restrictions on transfer other than
restrictions on transfer under this Agreement and the Rights Agreement.
3.6 GOVERNMENTAL AND THIRD-PARTY CONSENTS.
No consent, approval, qualification, Order or authorization of, or
filing with, any local, state, or federal governmental authority or approval or
consent of any third party is required on the part of the Company in connection
with the Company's execution, delivery or performance of this Agreement, and the
offer, sale or issuance of the Stock, except for (i) the approval by the
shareholders of Company of the Merger and related matters, and (ii) the filings
and submissions that the Company shall make under the HSR Act in connection with
the Merger.
3.7 SEC FILINGS; FINANCIAL STATEMENTS.
The Company has timely filed with the Securities and Exchange Commission
(the "SEC") and made available to each Investor or its representatives all forms
(other than Forms 3, 4 or 5 filed on behalf of Affiliates (as defined below) of
the Company), reports and documents required to be filed by the Company with the
SEC since January 1, 1997 (collectively, the "Company SEC Reports"). The Company
SEC Reports (i) at the time filed, complied with the applicable requirements of
the Securities Act of 1933, as amended (the "Securities Act"), and the rules
thereunder, and the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules thereunder, as the case may be, and (ii) did not at the
time they were filed (or if amended or superseded by a filing prior to the date
of this Agreement, then on the date of such filing) contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. To the knowledge of
the Company, the SEC has not issued an Order preventing or suspending the use of
any Company SEC Report, nor instituted Proceedings for that purpose. The Company
meets the eligibility requirements set forth in Section I.A. of the General
Instructions for the Use of Form S-3 under the Securities Act. For purposes of
this Agreement, "Affiliate" shall mean a Person that directly or indirectly,
through one or more intermediaries, controls or is controlled by, or is under
common control with, the Person specified.
Each of the financial statements (including, in each case, any related
notes and schedules) contained in the Company SEC Reports, including any such
Company SEC Report filed from the date of the Merger Agreement until the earlier
of (i) the date on which the Merger Agreement is terminated pursuant to its
terms or (ii) the Merger Closing Date (such time period, the "Pre-Closing
Period"), complied with the applicable published rules and regulations of the
SEC with respect thereto, was prepared in accordance with generally accepted
accounting principals in the United States from ("GAAP") applied on a consistent
basis throughout the periods involved (except as may be indicated in the notes
to such financial statements or, in the case of unaudited statements, as
permitted by Form 10-Q under the Exchange Act) and fairly presented the
financial position of the Company at the respective dates and the results of
operations and cash
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flows of the Company for the periods indicated, and all adjustments necessary
for a fair presentation of results for such periods have been made, except that
the unaudited interim financial statements were or are subject to normal and
recurring year-end adjustments which were not or are not expected to be material
in amount.
3.8 NO CHANGES.
Since August 28, 1999:
(a)there has not been any change in the business, assets,
liabilities, financial condition, prospects or operating results of the Company,
from that reflected in the Company's financial statements contained in the
Company's Annual Report on Form 10-K for the fiscal year ended August 28, 1999,
except changes in the ordinary course of business that individually or
collectively have not had a Material Adverse Effect on the Company;
(b)there has not been any damage, destruction or loss, whether or
not covered by insurance having a Material Adverse Effect on the Company;
(c)other than the Merger, the Company has not entered into any
material transaction (other than the Transactions) not referred to in the
Existing Company SEC Reports; and
(d)the Company has no liabilities except for liabilities
reflected in the Existing Company SEC Reports or incurred in the ordinary course
of business consistent with past practices.
3.9 COMPLIANCE WITH LAWS.
The Company now holds all licenses, certificates, permits, franchises or
other governmental authorization, registration, acceptance or approval from
state, federal and other regulatory authorities that are necessary for the
conduct of its business ("Governmental authorizations"), other than where the
failure to hold such Governmental Authorization is not reasonably likely to have
a Material Adverse Effect on the Company. Other than as set forth in the
Existing Company SEC Reports, the Company has complied with, is not in violation
of and has not received any notices of violation or noncompliance and, to the
knowledge of the Company, has no reason to believe that any presently existing
circumstances would result in any violation with respect to, any federal, state
or local statute, law, ordinance, governmental rule or regulation or court
decree to which the Company may be subject, including any environmental laws,
nor has the Company failed to obtain any Governmental Authorization necessary to
the ownership, leasing or operation of its property or to the conduct of its
business as it is presently being carried on and as described in the Existing
Company SEC Reports, except for such noncompliance, violations or failures to
obtain such Governmental Authorization as would not have a Material Adverse
Effect on the Company.
3.10 COMPLIANCE WITH OTHER INSTRUMENTS; NO CONFLICT.
The Company is not in violation of any provision of its Articles of
Incorporation or Bylaws or in default of the performance or observance of or
breach under or with respect to any
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provision of any obligation, agreement, covenant or condition contained in any
bond, debenture, note or other evidence of indebtedness or in any mortgage,
indenture, deed of trust, lease of real or personal property, undertaking,
agreement, instrument, contract, joint venture or other agreement or instrument
to which it is a party or by which it or any of its property is bound (a
"Company Contract") or, to its knowledge, of any federal or state Order, except
for such violations, defaults or breaches as would not have a Material Adverse
Effect on the Company. The Company has not received notice that any party to any
such Company Contract intends to cancel, amend or terminate any such agreement,
except where such cancellations, amendments or terminations would not have a
Material Adverse Effect on the Company. The execution, delivery and performance
by the Company of this Agreement, the consummation of the Transactions and the
fulfillment of the terms hereof does not and will not (i) violate, conflict with
or contravene the terms of the Articles of Incorporation or the Bylaws of the
Company, or any amendment thereof; (ii) violate, conflict with or result in any
material breach or contravention or constitute a default under (a) any Company
Contract or (b) any Order or (iii) constitute, with or without the passage of
time or giving of notice, an event that results in the creation of any lien,
charge or encumbrance upon any assets of the Company or the suspension,
revocation, impairment, forfeiture, or nonrenewal of any permit, license,
authorization, or approval applicable to the Company, its business or
operations, or any of its assets or properties, except for such violations,
conflicts, defaults, breaches or similar consequences as would not have a
Material Adverse Effect on the Company.
3.11 LITIGATION.
Other than as disclosed in the Existing Company SEC Reports, there is no
private or governmental action, suit, proceeding, claim, arbitration or
investigation (each, a "Proceeding") pending or, to the knowledge of the
Company, threatened against the Company or any of its properties before any
agency, court or tribunal, foreign or domestic (A) affecting the Transactions or
(B) which, if determined adversely to the Company, would have a Material Adverse
Effect on the Company. The Company is not a party, subject to the provisions of,
or in default with respect to, any Order, and there are no unsatisfied judgments
against the Company. The Company has made available to the Investors accurate
and complete copies of all pleadings, correspondence and other written materials
to which the Company has access that relate to Proceedings (i) to which the
Company is currently a party or (ii) which have been threatened in writing.
3.12 TAX RETURNS AND PAYMENTS.
The Company has timely filed all tax returns as required by law. These
tax returns are true, complete and correct in all material respects. The Company
has paid all taxes for all taxable periods ended on or prior to the Closing
Date, except where the failure to make such payment would not have a Material
Adverse Effect on the Company. The Company has not been advised (a) that any of
its returns, federal, state or other, have been or are being audited as of the
date hereof or (b) of any deficiency in assessment or proposed judgment to its
state or other taxes. The Company is not aware of any tax liability to be
imposed upon its properties or assets as of the date of this Agreement that
would have a Material Adverse Effect upon the Company. There are no matters
under discussion with any governmental authorities with respect
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to taxes that in the reasonable judgment of the Company are likely to result in
a material additional liability to the Company for taxes.
3.13 FINDERS AND BROKERS; FEES.
(a) Neither the Company nor any person acting on behalf of the
Company has engaged any finder, broker, intermediary or any similar person in
connection with the Transactions.
(b) The Company has not entered into a contract or other
agreement that provides that a fee shall be paid to any Person if the
Transactions are consummated.
Notwithstanding the foregoing, the Company has engaged X.X. Xxxxxxxxx & Co., LLC
("WRH") to act as its financial advisor in connection with the Merger pursuant
to that certain Engagement Letter between the Company and WRH dated December 17,
1999 and is obligated to pay WRH for certain fees and expenses as disclosed on
Part 3.13 of the Disclosure Schedule.
3.14 RIGHTS OF REGISTRATION.
Except as set forth in the Original Rights Agreement or as contemplated
in the Rights Agreement, the Company has not granted or agreed to grant any
registration rights, including piggyback rights, or other material rights to any
person or entity, (i) the provision or performance of which would render the
provision or performance (including the issuance of the Company Stock) of the
material rights to be granted to the Investors by the Company in this Agreement,
impracticable or (ii) for or relating to the registration of any shares of
capital stock of the Company that are currently outstanding.
3.15 VOTING RIGHTS.
Except as set forth in the Original Rights Agreement, as contemplated in
the Rights Agreement or as contemplated by the Voting Agreement to be entered
into by Xxxxxxxxx and the Chief Executive Officer of the Company, neither the
Company, nor to the Company's knowledge, the shareholders of the Company, has or
have, as the case may be, entered into any agreement with respect to the voting
of capital shares of the Company for the election of Directors of the Company or
otherwise.
3.16 LABOR RELATIONS AND EMPLOYEE MATTERS.
(a) The Company is not engaged in any unfair labor practice.
There is (i) no unfair labor practice complaint pending or, to the knowledge of
the Company, threatened against the Company before the National Labor Relations
Board, and no grievance or arbitration proceeding arising out of or under
collective bargaining agreements is so pending or, to the knowledge of the
Company, threatened against the Company, (ii) no strike, labor dispute, slowdown
or stoppage pending or, to the knowledge of the Company, threatened against the
Company, and (iii) no union representation question existing with respect to the
employees of the Company and, to the knowledge of the Company, no union
organizing activities are taking place.
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(b) Except as disclosed in the Existing Company SEC Reports, the
Company is not a party to any employment agreement (other than "at will"
employment relationships), collective bargaining agreement or covenant not to
compete, nor has the Company ever been party to any collective bargaining
agreement.
3.17 NO OTHER AGREEMENTS TO SELL THE ASSETS OR CAPITAL STOCK OF THE
COMPANY.
The Company does not have any legal obligation, absolute or contingent,
other than the obligations of the Company under this Agreement or the Merger
Agreement, to any person or firm to (i) sell assets other than in the ordinary
course of business consistent with past practices, (ii) sell any capital stock
of the Company or effect any merger, consolidation or other reorganization of
the Company or (iii) enter into any agreement with respect to any of the
foregoing.
3.18 PRIVATE PLACEMENT.
The offer, sale and issuance of the Stock as contemplated by this
Agreement is exempt from the registration requirements of the Securities Act and
state securities "blue sky" laws, and neither the Company nor any authorized
agent acting on its behalf will take any action hereafter that would cause the
loss of such exemptions.
4. REPRESENTATIONS AND WARRANTIES OF THE INVESTORS.
Each Investor, severally and not jointly, hereby represents and warrants
to the Company that:
4.1 AUTHORIZATION.
Each Investor has full power and authority to enter into this Agreement,
and each of the Agreement and the Rights Agreement constitutes, or will
constitute, the valid and legally binding obligation of each Investor,
enforceable against each Investor in accordance with its respective terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, and other laws of general application affecting enforcement of
creditors' rights generally, and (ii) as limited by laws relating to the
availability of specific performance, injunctive relief, or other equitable
remedies.
4.2 DISCLOSURE OF INFORMATION.
Each Investor further represents that it has had an opportunity to ask
questions and receive answers from the Company regarding the terms and
conditions of the offering of the Stock and the business, properties, prospects
and financial condition of the Company.
4.3 STATUS.
(a) Each Investor is an "accredited investor" as that term is
defined in Rule 501(a) of Regulation D of the Securities Act.
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(b) Each Investor, by reason of its business and financial
experience has such knowledge, sophistication and experience in financial and
business matters and in making investment decisions of this type that it is
capable of (i) evaluating the merits and risks of an investment in the Stock and
making an informed investment decision, (ii) protecting its own interest, and
(iii) bearing the economic risk of such investment for an indefinite period of
time.
4.4 INVESTMENT INTENT; CERTAIN RESTRICTIONS.
(a) Each Investor is acquiring the Stock for investment for its
own account, not as a nominee or agent and not with the view to, or any
intention of, a resale or distribution thereof, in whole or in part, or the
grant of any participation therein. Each Investor understands that the Stock has
not been, and will not be, registered under the Securities Act or state
securities laws by reason of specific exemptions from the registration
provisions of the Securities Act and applicable state securities laws that
depend upon, among other things, the bona fide nature of each Investor's
investment intent and the accuracy of each Investor's representations as set
forth in this Section 4. Each Investor has not been formed for the specific
purpose of acquiring the Stock. Each Investor further understands that, other
than pursuant to the Rights Agreement, the Company shall have no obligation to
register the Stock under the Securities Act or any state securities laws or to
take any action that would make available any exemption from the registration
requirements of such laws. Each Investor hereby acknowledges that because of the
restrictions on transfer and assignment of the Stock, each Investor may have to
bear the economic risk of the investment in the Stock for an indefinite period
of time.
(b) Each Investor will observe and comply with the Securities Act
and the rules and regulations promulgated thereunder, as now in effect and as
from time to time amended, in connection with any offer, sale, pledge, transfer
or other disposition of the Stock, including the conditions set forth in Section
5.28(m) of the Merger Agreement.
4.5 RESTRICTED SECURITIES.
Each Investor understands that the shares of Stock it is purchasing are
characterized as "restricted securities" under the federal securities laws
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under such laws and applicable regulations
such securities may be resold without registration under the Securities Act only
in certain limited circumstances. In this connection, each Investor represents
that it is familiar with Rule 144, as presently in effect, and understands the
resale limitations imposed hereby and by the Securities Act.
5. PRE-CLOSING COVENANTS OF THE COMPANY.
5.1 NOTIFICATION; UPDATES TO COMPANY DISCLOSURE SCHEDULE.
During the Pre-Closing Period, the Company shall promptly notify the
Investors in writing of:
(a) the discovery by the Company of any event, condition, fact or
circumstance that constitutes a material breach of any representation or
warranty made by the Company in this Agreement; and
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(b) any event, condition, fact or circumstance that would make
the timely satisfaction of any of the conditions set forth in Section 2.2
impossible or unlikely.
5.2 BEST EFFORTS.
During the Pre-Closing Period, the Company shall use its commercial best
efforts to cause the conditions set forth in Section 2.2 to be satisfied on a
timely basis, and shall not take any action or omit to take any action, the
taking or omission of which would or could reasonably be expected to result in
any of the conditions to Closing set forth in Section 2.2 not being satisfied.
6. PRE-CLOSING COVENANTS OF THE INVESTORS.
6.1 BEST EFFORTS.
During the Pre-Closing Period, each Investor shall use its commercial
best efforts to cause the conditions set forth in Section 2.1 to be satisfied on
a timely basis, and shall not take any action or omit to take any action, the
taking or omission of which would or could reasonably be expected to result in
any of conditions to Closing set forth in Section 2.1 not being satisfied.
7. OTHER MATTERS.
7.1 RESTRICTIVE LEGEND.
All certificates representing the Stock deliverable to each
Investor pursuant to this Agreement, and any certificates subsequently issued
with respect thereto or in substitution therefor, shall bear the following
legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE
SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS PURSUANT TO THE TERMS
specified in thAT certain Stock Purchase Agreement, DATED AS OF February
11, 2000, and SHAREHOLDERS' rights agreement, dated as of MAy 2, 2000.
copIES of such Agreements may be obtained froM ODWALLA, INC. without
charge, by the holder of this certificate upon written request therefor.
The Company, in its sole discretion, may cause a stop transfer
order to be placed with its transfer agent(s) on any certificate representing
the Stock at any time and from time to time.
7.2 CALIFORNIA SECURITIES LAWS.
THE SALE OF THE SECURITIES THAT ARE THE SUBJECT OF THIS AGREEMENT HAS
NOT BEEN QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE OF
CALIFORNIA AND THE ISSUANCE OF SUCH
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SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION FOR SUCH
SECURITIES PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF
SECURITIES IS EXEMPT FROM QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE
CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE
EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS
SO EXEMPT.
7.3 PUBLIC DISCLOSURE.
Unless otherwise required by law (including securities laws) or, as to
the Company, by the rules and regulations of the National Association of
Securities Dealers ("NASD"), prior to the Merger Closing Date, no disclosure
(whether or not in response to an inquiry) of the subject matter of this
Agreement or the Merger shall be made by any party hereto unless approved in
writing by the Company prior to release (which approval shall not be
unreasonably withheld); provided, that the parties agree and understand that
certain disclosures regarding the Transactions may be made to (i) employees of
the Company, (ii) third parties whose consent or approval may be required in
connection with the Transactions, and (iii) the professional advisors of the
Company and/or the Investors, in each case without any prior written consent.
8. TERMINATION.
8.1 TERMINATION EVENTS.
This Agreement may be terminated prior to Closing:
(a) by the Investors if there is a material breach or inaccuracy
in any representation, warranty, covenant or obligation of the Company after the
date of this Agreement and prior to the Closing and such breach or inaccuracy
has not been cured within ten (10) business days after written notice of such
breach is given to the Company;
(b) by the Company if there is a material breach or inaccuracy in
any representation, warranty, covenant or obligation of the Investors after the
date of this Agreement and prior to the Closing and such breach or inaccuracy
has not been cured within ten (10) business days after written notice of such
breach is given to the Investors;
(c) by either the Company or the Investors if the Closing has not
taken place on or before September 30, 2000; or
(d) by the mutual consent of the Investors and the Company.
8.2 TERMINATION PROCEDURES.
If the Investors wish to terminate this Agreement pursuant to Section
8.1(a), the Investors shall deliver to the Company a written notice stating that
the Investors are terminating this Agreement and setting forth a brief
description of the basis on which the Investors are terminating this Agreement.
If the Company wishes to terminate this Agreement pursuant to Section 8.1(b),
the Company shall deliver to the Investors a written notice stating that the
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Company is terminating this Agreement and setting forth a brief description of
the basis on which the Company is terminating this Agreement.
8.3 EFFECT OF TERMINATION.
If this Agreement is terminated pursuant to Section 8.1, all further
obligations of the parties under this Agreement shall terminate; provided, that
each party shall remain liable for any breaches of this Agreement prior to its
termination and provided, further, that Sections 7.3, 9.2, 9.3 and 9.10 shall
survive the termination of this Agreement.
8.4 EXCLUSIVITY OF TERMINATION RIGHTS.
Except to the extent termination occurs due to the bad faith of the
other party, the termination rights and obligations provided in this Section 8
shall be deemed to be exclusive. Subject to the provisions of Section 8.3, the
parties shall not have any other or further Liabilities to or with respect to
one another by reason of this Agreement or its termination.
9. MISCELLANEOUS.
9.1 FURTHER ASSURANCES.
Each party hereto shall execute and/or cause to be delivered to each
other party hereto such instruments and other documents, and shall take such
other actions, as such other party may reasonably request (prior to, at or after
the Closing) for the purpose of carrying out or evidencing any of the
Transactions.
9.2 FEES AND EXPENSES.
Each party to this Agreement shall bear and pay its own costs and
expenses with respect to the negotiation, execution, delivery and performance of
this Agreement.
9.3 ATTORNEYS' FEES.
If any legal action or other legal Proceeding (including arbitration)
relating to the Transactions or the enforcement of any provision of any of the
Transactional Agreements is brought against any party hereto, the Person
presiding over such action or other Proceeding may award reasonable attorneys'
fees, costs and disbursements to the prevailing party (in addition to any other
relief to which the prevailing party may be entitled).
9.4 GOVERNING LAW; ARBITRATION.
(a) This Agreement is to be construed in accordance with and
governed by the laws of the State of California (as permitted by Section 1646.5
of the California Civil Code or any similar successor provision), without giving
effect to any choice of law rule that would cause the application of the laws of
any jurisdiction other than the State of California to the rights and duties of
the parties.
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(b) Any controversy or claim arising out of or relating to this
Agreement, or breach thereof, shall be settled by arbitration administered by
the American Arbitration Association in accordance with its then existing
Commercial Arbitration rules and judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. The
arbitrator shall be appointed by mutual agreement of the Company and the
Investor(s) involved in such controversy or claim, but, if the Company and such
Investor(s) fail to agree, the arbitrator shall be appointed by the American
Arbitration Association in accordance with its then existing rules. The place of
the arbitration shall be San Francisco, California and the governing law shall
be the laws of the State of California in accordance with Section 9.4(a) of this
Agreement.
9.5 SUCCESSORS AND ASSIGNS.
Except as otherwise expressly provided herein, the provisions hereof
shall inure to the benefit of, and be binding upon, the successors, assigns,
heirs, executors and administrators of the parties hereto and shall inure to the
benefit of and be enforceable by each person who shall be a holder of the Stock
from time to time. None of the parties hereto may assign any of its or their
rights or obligations hereunder to any other party (by contract, operation of
law or otherwise) without the prior written consent of the other, which consent
shall not be unreasonably withheld, and any attempted assignment in violation
thereof shall be void and of no effect.
9.6 ENTIRE AGREEMENT.
This Agreement, the Schedules and the Exhibits hereto, the Rights
Agreement and the other documents contemplated expressly hereby and thereby
constitute the full and entire understanding and agreement among the parties
thereto with regard to the subjects hereof and thereof and supersede all prior
agreements and understandings among or between any of the parties relating to
the subject matter hereof and thereof.
9.7 SEPARABILITY.
In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby, unless such
provision is material to the terms of this Agreement, in which case the Company
and the Investors shall in good faith agree upon such amendments as are
necessary to restore the original intent and arrangement between the parties.
9.8 AMENDMENTS.
This Agreement may be amended or modified only upon the written consent
of the Company and the Investors. Any amendment or modification effected
pursuant to this Section 9.8 shall be binding upon the Company and the
Investors.
9.9 NOTICES.
Any notice or other communication required or permitted to be delivered
to any party under this Agreement shall be in writing and shall be deemed
properly delivered and given (a) on the date delivered or given, when delivered
or given by hand or by telecopier during business
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hours, (b) one business day after being delivered or given by courier or
next-day express delivery service, or (c) two business days after being
delivered or give by registered mail to the address set forth beneath the name
of such party below (or to such other address or telecopier number as such party
shall have specified in a written notice given to the other parties hereto):
if to the Company:
Odwalla, Inc.
000 Xxxxx Xxxx Xxxx
Xxxx Xxxx Xxx, XX 00000
Attention: D. Xxxxxxx X. Xxxxxxxxxx
Telecopier: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx, Esq.
Telecopier: (000) 000-0000
if to U.S. Equity Partners LP:
c/o Xxxxxxxxxxx Xxxxxxx & Co., Inc.
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Telecopier: (000) 000-0000
with copies to:
Skadden, Arps, et. al.
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. XxXxxxxx
Telecopier: (000) 000-0000
if to Xxxxxxxxx-Xxxxx Partners:
Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx Xxxxx
Telecopier: (000) 000-0000
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with copies to:
Xxxxxx, Xxxxx & Bockius LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxx
Telecopier: (000) 000-0000
9.10 PUBLICITY AND USE OF CONFIDENTIAL INFORMATION.
(a) Notwithstanding anything to the contrary contained in any
agreement among the parties hereto, the Company shall have the right to disclose
the information provided to the Company by the Investors (including the terms of
this Agreement) through the use of printed offering materials or otherwise or as
otherwise required by applicable legal requirements, in connection with the
preparation of a proxy statement (the "Proxy Statement") in connection with the
solicitation by the Board of Directors of the Company of the affirmative vote of
a majority of the outstanding Common Stock and Preferred Stock to approve the
Merger and related matters.
(b) The Company, on the one hand, and the Investors, on the other
hand, shall keep strictly confidential, and shall not use, or disclose to any
other Person, any non-public document or other information in the Company's
possession, on the one hand, and in each Investor's possession, on the other
hand, that relates directly or indirectly to the business of the Company or any
Affiliate of the Company, on the one hand, or the Investor or any Affiliate of
the Purchaser, on the other hand; provided, however, that the Company and the
Investors may disclose such non-public information as required by any applicable
law or rule to which the Company or Investors are subject, including the
Exchange Act and the rules of the NASD.
(c) Except as set forth in Section 7.3, neither the Investors, on
the one hand, nor the Company, on the other hand, shall issue or disseminate any
press release or other publicity concerning any of the Transactions, or permit
any press release or other publicity concerning any of the Transactions to be
issued or otherwise disseminated on its behalf without the prior written consent
of the Investors, in the case of the Company, or the Company, in the case of the
Investors; provided, however, that the Company and Investors may disclose or
disseminate such information as required by any applicable law or rule to which
the Company or the Investors are subject, including the Exchange Act and the
rules of the NASD.
9.11 COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be an original, but all of which together shall constitute one
instrument.
9.12 DELAYS OR OMISSIONS; WAIVERS.
(a) No failure on the part of any Person to exercise any power,
right, privilege or remedy under this Agreement, and no delay on the part of any
Person in exercising any power, right, privilege or remedy under this Agreement,
shall operate as a waiver of such power, right, privilege or remedy; and no
single or partial exercise or waiver of any such power, right,
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privilege or remedy shall preclude any other or further exercise thereof or of
any other power, right, privilege or remedy.
(b) No Person shall be deemed to have waived any claim arising
out of this Agreement, or any power, right, privilege or remedy under this
Agreement, unless the waiver of such claim, power, right, privilege or remedy is
expressly set forth in a written instrument duly executed and delivered on
behalf of such Person; and any such waiver shall not be applicable or have any
effect except in the specific instance in which it is given.
9.13 REMEDIES CUMULATIVE; SPECIFIC PERFORMANCE.
(a) All remedies, either under this Agreement or by law or
otherwise afforded to the parties hereto, shall be cumulative and not
alternative.
(b) Each of the parties hereto agrees that if the conditions to
such party's obligation to consummate the Transactions have been satisfied as
set forth in Sections 2.1 or 2.2, as the case may be, and such party nonetheless
refuses to consummate the Transactions, then the other party shall be entitled
(in addition to any other remedy that may be available to it) to (i) a decree or
order of specific performance or mandamus to enforce the observance and
performance of such obligation to consummate the Transactions, and (ii) an
injunction restraining such non-performance.
9.14 HEADINGS.
The headings contained in this Agreement are for convenience of
reference only, shall not be deemed to be a part of this Agreement and shall not
be referred to in connection with the construction or interpretation of this
Agreement.
9.15 CONSTRUCTION.
(a) For purposes of this Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include the masculine and feminine genders.
(b) The parties hereto agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not
be applied in the construction or interpretation of this Agreement.
(c) As used in this Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
(d) Except as otherwise specified, all references in this
Agreement to "Sections," "Exhibits" and "Schedules" are intended to refer to
Sections of this Agreement and Exhibits and Schedules to this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this STOCK PURCHASE
AGREEMENT as of the date set forth in the first paragraph hereof.
COMPANY: ODWALLA, INC.,
a California corporation
By:________________________________________
Name: D. Xxxxxxx X. Xxxxxxxxxx
Title: Chief Executive Officer
INVESTOR: U.S. EQUITY PARTNERS, L.P.,
a Delaware limited partnership
By:________________________________________
Name: Xxxxx X. Xxxxx
Title: Managing Director
INVESTOR: XXXXXXXXX-XXXXX PARTNERS III, L.P.,
a Delaware limited partnership
By:________________________________________
Name: Xxxxx Xxxxx
Title: Authorized Person
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INDEX OF SCHEDULES AND EXHIBITS
Schedule I Schedule of Investors
Schedule II Disclosure Schedule
Exhibit A Rights Agreement
Exhibit B Form of Opinion of Company Counsel
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STOCK PURCHASE AGREEMENT
SCHEDULE I
SCHEDULE OF INVESTORS
INVESTOR NUMBER OF SHARES OF STOCK PURCHASE PRICE
U.S. Equity Partners, L.P. 800,641 $5,000,000
Xxxxxxxxx-Xxxxx 160,128 $1,000,000
Partners III, L.P.
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STOCK PURCHASE AGREEMENT
SCHEDULE II
DISCLOSURE SCHEDULE
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