Exhibit 10.52
Execution Copy
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STOCK PURCHASE AGREEMENT
by and between
THE GRAND UNION COMPANY
and
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Dated as of February 25, 1997
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TABLE OF CONTENTS
Page
ARTICLE I
THE PURCHASE................................................................1
Section 1.1. Definitions.............................................1
Section 1.2. Sale and Purchase of Preferred Stock....................1
Section 1.3. Price for Shares........................................1
Section 1.4. The Closing.............................................1
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY...............................2
Section 2.1. Organization and Qualification..........................2
Section 2.2. Certificate of Incorporation and By-Laws................2
Section 2.3. Capitalization..........................................2
Section 2.4. Authority Relative to this Agreement....................3
Section 2.5. No Conflicts............................................3
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.............................3
Section 3.1. Authority...............................................3
Section 3.2. No Conflicts............................................3
Section 3.3. Acquisition For Investment..............................4
Section 3.4. Speculative Investment..................................4
Section 3.5. Receipt of Reports......................................4
Section 3.6. Financial Condition.....................................4
Section 3.7. Financial Experience....................................4
Section 3.8. Review of Risk Factors..................................4
Section 3.9. Independent Investigation...............................4
Section 3.10. Examination of Documents................................5
Section 3.11. No Other Representations................................5
Section 3.12. Accredited Investor.....................................5
Section 3.13. Purchaser's Principal Residence.........................5
Section 3.14. Brokers or Finders......................................5
Section 3.15. Determination Not to Obtain Independent Counsel.........5
ARTICLE IV
ADDITIONAL AGREEMENTS.......................................................5
Section 4.1. Waiver of ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇..................5
Section 4.2. Consent of Banks........................................6
Section 4.3. Consent of Trefoil II and GEIPPPII......................6
Section 4.4. Consents, Approvals.....................................6
Section 4.5. Notification of Certain Matters.........................6
Section 4.6. Public Announcements....................................6
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Section 4.7. Conveyance Taxes........................................7
Section 4.8. Consent of Board of Directors...........................7
Section 4.9. Election of Directors...................................7
ARTICLE V
CONDITIONS TO THE STOCK PURCHASE............................................7
Section 5.1. Conditions to Obligation of Each Party to Effect
Any Closing.............................................7
Section 5.2. Additional Conditions to Obligations of the Purchaser...8
Section 5.3. Additional Conditions to Obligation of the Company......8
ARTICLE VI
GENERAL PROVISIONS..........................................................9
Section 6.1. Restrictive Legends.....................................9
Section 6.2. Notices.................................................10
Section 6.3. Certain Definitions.....................................11
Section 6.4. Amendment...............................................13
Section 6.5. Cooperation.............................................13
Section 6.6. Headings................................................13
Section 6.7. Severability............................................13
Section 6.8. Entire Agreement........................................13
Section 6.9. Assignment..............................................13
Section 6.10. Parties in Interest.....................................13
Section 6.11. Failure or Indulgence Not Waiver, Remedies
Cumulative..............................................13
Section 6.12. Governing Law...........................................14
Section 6.13. Counterparts............................................14
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Schedules and Exhibits
Schedule I Wire Transfer Instructions
Exhibit A Certificate of Designation
Exhibit B Stockholder Agreement
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement, dated as of February 25, 1997 (this
"Agreement"), is by and between The Grand Union Company, a Delaware
corporation (the "Company"), and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (the "Purchaser").
WITNESSETH:
WHEREAS, the Purchaser wishes to purchase from the Company, and the
Company wishes to sell and issue to the Purchaser (the "Stock Purchase"), an
aggregate of Sixty Thousand (60,000) shares of the Company's Class A
Convertible Preferred Stock, $1.00 par value per share (the "Preferred
Stock"); and
WHEREAS, the Purchaser and the Company are entering into this Agreement
to provide for such purchase and sale and to establish various rights and
obligations in connection therewith.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein set forth, the parties agree as follows:
ARTICLE I
THE PURCHASE
Section 1.1. Definitions. Certain terms are used in this Agreement as
specifically defined herein. These definitions are set forth or referred to
in Section 7.4 hereof.
Section 1.2. Sale and Purchase of Preferred Stock. Subject to the terms
and conditions of this Agreement, and in reliance on the representations and
warranties set forth in this Agreement, the Company hereby agrees to sell to
the Purchaser, and the Purchaser hereby agrees to purchase from the Company,
at a purchase price of $50.00 per share, Sixty-Thousand (60,000) shares of
the Preferred Stock (such shares of Preferred Stock purchased hereunder, the
"Shares") at the Closing as defined in Section 1.4 hereof. The terms and
conditions of the Preferred Stock are set forth in the Certificate of
Designation filed with the Secretary of State of Delaware on September 5,
1996, a copy of which is attached hereto as Exhibit A.
Section 1.3. Price for Shares. The consideration for the purchase of
the Shares shall be Three Million Dollars ($3,000,000) (the "Purchase
Price"). The Purchase Price will be paid at the Closing by wire transfer of
immediately available funds to the Company's account as set forth on Schedule
I hereto.
Section 1.4. The Closing. Subject to the satisfaction or waiver of the
conditions applicable to such Closing set forth in Article V, the closing of
the transactions contemplated by this Agreement (the "Closing"), at the
offices of Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, on March 10,
1997 (the "Closing Date"), unless another date, time or place is agreed to in
writing by the parties hereto. At the Closing, the Company will deliver to
the Purchaser a certificate (or, if requested in writing at least two
business days prior to the Closing, certificates), registered in the
Purchaser's name, representing the Shares, against payment of the Purchase
Price therefor.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Purchaser that the
statements contained in this Article II are true and correct as of the date
hereof, and shall remain true and correct up to and including the Closing
Date (as though made then and as though the Closing Date were substituted for
the date of this Agreement throughout this Article II).
Section 2.1. Organization and Qualification. The Company is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware. The Company has the requisite corporate power
and authority to carry on its business as it is now being conducted.
Section 2.2. Certificate of Incorporation and By-Laws. The Company has
heretofore furnished to the Purchaser a complete and correct copy of its
Certificate of Incorporation and By-Laws as most recently restated and
subsequently amended to date.
Section 2.3. Capitalization. The authorized capital stock of the
Company consists of (A) 60,000,000 shares of Common Stock, par value $1.00
per share ("Common Stock"), and (B) 3,500,000 shares of the Preferred Stock,
par value $1.00 per share. As of the date hereof, (i) 10,000,000 shares of
Common Stock were issued and outstanding, all of which are validly issued,
fully paid and nonassessable, and no shares of Common Stock were held in
treasury, (ii) 1,219,701 shares of the Preferred Stock were issued and
outstanding, all of which are validly issued, fully paid and nonassessable,
and no shares of Preferred Stock were held in treasury, (iii) no shares of
Common Stock were held by subsidiaries of the Company, (iv) 1,000,000 shares
of Common Stock were reserved for future issuance pursuant to stock options
granted or to be granted under the Company's 1995 Equity Incentive Option
Plan or the Company's 1995 Non-Employee Directors' Stock Option Plan; (v)
900,000 shares of Common Stock were reserved for future issuance upon the
exercise of certain warrants pursuant to that certain Warrant Agreement
between the Company and American Stock Transfer & Trust Company, dated as of
June 15, 1995; (vi) 8,411,787 shares of Common Stock were authorized for
future issuance upon the conversion of shares of Preferred Stock outstanding
on such date; (vii) 5,517,280 shares of Common Stock are authorized for
future issuance upon conversion of shares of Preferred Stock to be sold
pursuant to the Stock Purchase Agreement, dated as of July 30, 1996, among
Trefoil Capital Investors II, L.P., a Delaware limited partnership ("Trefoil
II"), and GE Investment Private Placement Partners II, A Limited Partnership,
a Delaware limited partnership
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("GEIPPPII") (the "July 1996 Stock
Purchase Agreement"); and (viii) 800,000 shares of Preferred
Stock were authorized for future issuance pursuant to the
terms of the July 1996 Stock Purchase Agreement.
Section 2.4. Authority Relative to this Agreement. The Company has all
necessary corporate power and authority to execute and deliver this
Agreement, and the Stockholder Agreement (collectively, the "Transaction
Documents") and to perform its obligations hereunder and thereunder and to
consummate the transactions contemplated hereby and thereby. The execution
and delivery of each of the Transaction Documents by the Company and the
consummation by the Company of the transactions contemplated thereby have
been duly and validly authorized by all necessary corporate action, and no
other corporate proceedings on the part of the Company are necessary to
authorize the Transaction Documents or to consummate the transactions so
contemplated, other than as contemplated by Section 4.3 and 4.8.
Section 2.5. No Conflicts. The execution and delivery of this Agreement
by the Company does not, and the performance of this Agreement by the Company
and the consummation of the transactions contemplated hereby will not: (i)
conflict with or violate the Certificate of Incorporation or By-Laws of the
Company; (ii) conflict with or violate any federal, foreign, state or
provincial law, rule, regulation, order, judgment or decree applicable to the
Company or by which its properties are bound or affected; or (iii) result in
any breach of or constitute a default under any material contract, agreement,
license, permit, franchise or other instrument or obligation, to which the
Company is a party or by which the Company or its properties are bound or
affected, except for any conflict or violation which would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Company that the statements
contained in this Article III are true and correct as of the date hereof, and
shall remain true and correct up to and including the Closing Date (as though
made then and as though the Closing Date were substituted for the date of
this Agreement throughout this Article III).
Section 3.1. Authority. The Purchaser has all requisite authority and
capacity to enter into this Agreement and to purchase the Shares.
Section 3.2. No Conflicts. The execution and delivery of this Agreement
by the Purchaser does not, and the performance of this Agreement by the
Purchaser and the consummation of the transactions contemplated hereby will
not (i) conflict with or violate any federal, foreign, state or provincial
law, rule, regulation, order, judgment or decree applicable to the Purchaser
or by which the Purchaser's properties are bound or affected; or (ii) result
in any breach of or constitute a default under any material contract,
agreement, license, permit,
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franchise or other instrument or obligation, to which the Purchaser is a
party or by which the Purchaser or his properties are bound or affected.
Section 3.3. Acquisition For Investment. The Purchaser is acquiring the
Shares solely for investment, for the Purchaser's own account and not with a
view to, or for resale in connection with, the distribution or other
disposition thereof, except for such distributions and dispositions which are
(i) explicitly permitted or contemplated under the terms of the Transaction
Documents, as well as (ii) effected in compliance with the Securities Act of
1933, as amended (the "Securities Act"), the rules and regulations of the
Securities and Exchange Commission promulgated thereunder, and all applicable
state securities and "blue sky" laws.
Section 3.4. Speculative Investment. The Purchaser understands that
there are substantial restrictions on the transferability of the Shares under
the Securities Act, and the rules and regulations of the Securities and
Exchange Commission (the "SEC") thereunder, and there may never be a public
market for the Shares and, accordingly, it may be difficult to liquidate the
Purchaser's investment in the Company in case of emergency or otherwise.
Section 3.5. Receipt of Reports. The Purchaser currently serves as the
Chairman and a member of the Board of Directors of the Company and, as such,
has received reports from and other information concerning the Company. In
connection with the transaction contemplated hereby, the Purchaser has not
relied on financial information regarding the Company provided by the Company.
Section 3.6. Financial Condition. The Purchaser's financial situation
is such that the Purchaser can afford to bear the economic risk of holding
the Shares for an indefinite period of time and suffer a complete loss of the
Purchaser's investment in the Company.
Section 3.7. Financial Experience. The Purchaser's knowledge and
experience in financial and business matters are such that the Purchaser is
capable of evaluating the merits and risks of the Purchaser's purchase of the
Shares or the Purchaser has been advised by a representative possessing such
knowledge and experience.
Section 3.8. Review of Risk Factors. The Purchaser and the Purchaser's
representatives as deemed necessary by the Purchaser, including the
Purchaser's professional, tax and other advisors, have reviewed the purchase
of the Shares and the Purchaser understands and has taken cognizance of (or
has been advised by the Purchaser's representatives as to) all the risk
factors related to the purchase of the Shares.
Section 3.9. Independent Investigation. In making the Purchaser's
decision to purchase the Shares, the Purchaser has relied upon independent
investigations made by the Purchaser and, to the extent believed by the
Purchaser to be appropriate, the Purchaser's representatives.
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Section 3.10. Examination of Documents. The Purchaser and the
Purchaser's representatives and advisors, if any, have been afforded the
opportunity to examine all documents related to and, if applicable, executed
in connection with, the Company and the transactions contemplated hereby,
which the Purchaser or the Purchaser's representatives or advisors, if any,
desire to examine.
Section 3.11. No Other Representations. The Company or its
representatives have provided the Purchaser with the opportunity to ask
questions of, and to receive answers from, the Company and its
representatives concerning the terms and conditions of the purchase of the
Shares. No representations or warranties have been made to the Purchaser or
the Purchaser's representatives concerning the Shares or the Company, its
prospects or other matters, except as set forth in this Agreement.
Section 3.12. Accredited Investor. The Purchaser is an "accredited
investor" within the meaning of Rule 501(a) under the Securities Act.
Section 3.13. Purchaser's Principal Residence. The Purchaser is an
individual with a principal place of residence is located in the State of
California.
Section 3.14. Brokers or Finders. No agent, broker, investment banker
or other firm or person acting on behalf of the Purchaser, including any of
the foregoing that is an affiliate of the Purchaser, is or will be entitled
to receive any broker's or finder's fee or any other commission or similar
fee in connection with any of the transactions contemplated by this Agreement.
Section 3.15. Determination Not to Obtain Independent Counsel. In
connection with the Purchaser's execution of this Agreement, the Purchaser
has been advised by the Company to obtain and consult with independent
counsel of his choice regarding the terms and conditions of this Agreement
and its consequences, as well as, the desirability of entering into this
Agreement. Notwithstanding such advice, the Purchaser has determined not to
be represented by counsel in connection with the Stock Purchase with full
knowledge and understanding of the risks involved with such determination.
ARTICLE IV
ADDITIONAL AGREEMENTS
Section 4.1. Waiver of ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇. The Company
shall use all reasonable efforts to obtain a written waiver (the "DLJ
Waiver") by ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation, of any
placement, brokerage, finder's or other fee or commission under the DLJ
Engagement Letter, as defined in Section 7.4(i) hereof, in connection with
the transactions contemplated by this Agreement.
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Section 4.2. Consent of Banks. The Company shall use all reasonable
efforts to obtain from Bankers Trust Company, as Agent for the banks party to
the Company Credit Agreement, a written consent of the Required Banks (as
defined in the Company Credit Agreement) (the "Bank Consent") to the
transactions contemplated hereby and a waiver of any defaults or required
prepayments under the Company Credit Agreement which may be caused hereby.
Section 4.3. Consent of Trefoil II and GEIPPPII. The Company shall use
all reasonable efforts to obtain the written consent of Trefoil II and
GEIPPPII (the "Trefoil/GE Consent") to the Stock Purchase Agreement and the
transactions contemplated thereby, in form and substance satisfactory to the
Company.
Section 4.4. Consents, Approvals. The Company shall use all reasonable
efforts to obtain all consents, waivers, approvals, authorizations or orders
(including, without limitation, all United States and foreign governmental
and regulatory rulings and approvals), and the Company shall make all filings
(including, without limitation, all filings with United States and foreign
governmental or regulatory agencies) required in connection with the
authorization, execution and delivery of this Agreement by the Company and
the consummation by it of the transactions contemplated hereby, in each case
as promptly as practicable. The Company also shall use its reasonable
efforts to obtain all necessary state securities laws or blue sky permits and
approvals required to carry out the transactions contemplated hereby and
shall furnish all information as may be reasonably requested in connection
with any such action.
Section 4.5. Notification of Certain Matters. The Company shall give
prompt notice to the Purchaser and the Purchaser shall give prompt notice to
the Company, of (i) the occurrence or nonoccurrence of any event the
occurrence or nonoccurrence of which would be likely to cause any
representation or warranty contained in this Agreement to become untrue or
inaccurate, or (ii) any failure of the Company or the Purchaser, as the case
may be, materially to comply with or satisfy any covenant, condition or
agreement to be complied with or satisfied by it hereunder; provided,
however, that the delivery of any notice pursuant to this Section shall not
limit or otherwise affect the remedies available hereunder to the party
receiving such notice; and provided, further, that such notice shall be
required only if the certificates referred to in Sections 5.2(a) or 5.2(b)
would not be able to be given if the applicable Closing were to occur on such
date.
Section 4.6. Public Announcements. The Purchaser and the Company shall
consult with each other before issuing any press release with respect to the
Stock Purchase or this Agreement and shall not issue any such press release
or make any such public statement without the prior consent of the other
party, which consent shall not be unreasonably withheld; provided, however,
that a party may, without the prior consent of the other party, issue such
press release or make such public statement as may upon the advice of counsel
be required by law or the rules and regulations of the NASDAQ National
Market, if it has used all reasonable efforts to consult with the other party
prior thereto, and shall promptly notify the other parties hereto thereof.
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Section 4.7. Conveyance Taxes. The Purchaser and the Company shall
cooperate in the preparation, execution and filing of all returns,
questionnaires, applications, or other documents regarding any real property
transfer or gains, sales, use, transfer, value added, stock transfer and
stamp taxes, any transfer, recording, registration and other fees, and any
similar taxes which become payable in connection with the transactions
contemplated hereby that are required or permitted to be filed at or before
the Closing.
Section 4.8. Consent of Board of Directors. The Company shall obtain
the consent of the Board of Directors of the Company (the "Board Consent") to
the Stock Purchase Agreement and the transactions contemplated thereby.
Section 4.9. Election of Directors. The Purchaser hereby agrees, for as
long as a majority of the Board of Directors of the Company shall consist of
directors designated (other than disinterested directors) by Trefoil II and
GEIPPPII, that the Purchaser shall not exercise any right to which the
Purchaser would otherwise be entitled pursuant to the Certificate of
Designation to elect two directors voting separately as a class due to
defaults in dividend payments.
ARTICLE V
CONDITIONS TO THE STOCK PURCHASE
Section 5.1. Conditions to Obligation of Each Party to Effect Any
Closing. The respective obligations of each party to effect any Closing of
the Stock Purchase shall be subject to the satisfaction at or prior to the
Closing Date of the following conditions:
(a) No Injunctions or Restraints; Illegality. No
temporary restraining order, preliminary or permanent
injunction or other order issued by any court of
competent jurisdiction or other legal restraint or
prohibition preventing the consummation of the Stock
Purchase shall be in effect, nor shall any proceeding
brought by any administrative agency or commission or
other governmental authority or instrumentality,
domestic or foreign, seeking any of the foregoing be
pending; and there shall not be any action taken, or
any statute, rule, regulation or order enacted,
entered, enforced or deemed applicable to the Stock
Purchase, which makes the consummation of the Stock
Purchase illegal; and
(b) Governmental Actions. There shall not have
been instituted, pending or threatened any action or
proceeding (or any investigation or other inquiry that
might result in such an action or proceeding) by any
governmental authority or administrative agency before
any governmental authority, administrative agency or
court of competent jurisdiction, nor shall there be in
effect any judgment, decree or order of any
governmental authority, administrative agency or court
of competent jurisdiction, in either case, seeking to
prohibit or limit the Purchaser from exercising all
material rights and privileges pertaining to its
ownership of the Common Stock, or seeking to compel the
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Company or any of its subsidiaries to dispose of or
hold separate all or any material portion of the
business or assets of the Company or any of its
subsidiaries, as a result of the Stock Purchase or the
transactions contemplated by this Agreement.
Section 5.2. Additional Conditions to Obligations of the Purchaser. The
obligation of the Purchaser to effect the purchase of the Shares is also
subject to the following conditions:
(a) Representations and Warranties. All
representations and warranties of the Company herein
contained shall have been true and correct when made in
all respects and shall be true and correct at and as of
the Closing Date as if made at and as of such time,
except for (i) changes not prohibited by this
Agreement, and (ii) those representations and
warranties which address matters only as of a
particular date (which shall have been true and correct
as of such date, subject to clause (iii)), or (iii) at
and as of the Closing Date where the failure to be true
and correct could not, if any qualification in such
representations or warranties as to materiality were
deleted therefrom (including dollar thresholds),
individually or in the aggregate reasonably be expected
to have a Material Adverse Effect and the Purchaser
shall have received a certificate dated the Closing
Date to such effect signed by the President and the
Chief Financial Officer of the Company;
(b) Agreements and Covenants. The Company shall
have performed or complied in all material respects
with all agreements and covenants required by this
Agreement to be performed or complied with by it at or
prior to the Closing Date and the Purchaser shall have
received a certificate dated the Closing Date to such
effect signed on behalf of the Company by the President
and the Chief Financial Officer of the Company;
(c) Consents Obtained. All consents, waivers,
approvals, authorizations or orders required to be
obtained, and all filings or notices required to be
made, by the Company for the due authorization,
execution and delivery of this Agreement and the
consummation by it of the transactions contemplated
hereby shall have been obtained and made by the
Company, except for consents required to be obtained
under contracts not material to the operation of the
business of the Company;
(d) Stockholders Agreement. The Company, the
Purchaser, Trefoil II, and GEIPPPII shall have entered
into a stockholder agreement substantially in the form
of Exhibit B attached hereto; and
(e) Delivery of Shares. The Company shall have
delivered the Shares to be delivered pursuant to
Section 1.4 hereof, against payment of the Purchase
Price.
Section 5.3. Additional Conditions to Obligation of the Company. The
obligation of the Company to effect the Stock Purchase is also subject to the
following conditions:
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(a) Representations and Warranties. The
representations and warranties of the Purchaser
contained in this Agreement shall have been true and
correct in all respects when made and shall be true and
correct in all respects on and as of the Closing Date,
except for (i) changes contemplated by this Agreement
and (ii) those representations and warranties which
address matters only as of a particular date (which
shall have been true and correct in all material
respects as of such date), with the same force and
effect as if made on and as of the Closing Date and the
Company shall have received a certificate dated the
Closing Date to such effect signed by the Purchaser;
(b) Agreements and Covenants. The Purchaser
shall have performed or complied in all material
respects with all agreements and covenants required by
this Agreement to be performed or complied with by the
Purchaser on or prior to the Closing Date, and the
Company shall have received a certificate to such
effect dated the Closing Date signed by the Purchaser;
(c) Consents Obtained. All consents, waivers,
approvals, authorizations or orders required to be
obtained, and all filings required to be made, by the
Purchaser for the due authorization, execution and
delivery of this Agreement and the consummation by it
of the transactions contemplated hereby shall have been
obtained and made by the Purchaser, and the Company
shall have obtained, in form and substance satisfactory
to the Company, the DLJ Waiver (referred to in Section
4.1 hereof), the Bank Consent (referred to in Section
4.2 hereof), the Trefoil/GE Consent (referred to in
Section 4.3 hereof), and the Board Consent (referred to
in Section 4.8 hereof), and the Company shall not have
the right, nor be entitled to, waive the requirement of
the DLJ Waiver as a closing condition without the prior
written consent of Trefoil II and GEIPPPII; and
(d) Payment of Purchase Price. The Purchaser
shall have delivered payment of the Purchase Price in
accordance with Section 1.3 hereof.
ARTICLE VI
GENERAL PROVISIONS
Section 6.1. Restrictive Legends. Each certificate representing Shares
and Conversion Shares shall bear legends in substantially the following form:
The securities represented by this
certificate have not been registered
under the Securities Act of 1933 or the
securities laws of any state and may not
be sold or otherwise disposed of except
pursuant to an effective registration
statement under such Act and applicable
state securities laws or an applicable
exemption to the registration
requirements of such Act or such laws.
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The Grand Union Company (the
"Company") will furnish without charge
to each stockholder who so requests
through the Company's principal office,
a statement of the powers, designations,
preferences and relative, participating,
optional or other special rights of each
class of stock or series thereof and the
qualifications, limitations or
restrictions of such preferences and/or
rights.
The securities represented by this
certificate are subject to restrictions
on transfer, as provided in: (i) a
Stockholders Agreement dated as of
February 25, 1997 among the Company and
the purchasers executing the agreement
(the "Agreement"); and (ii) the
Company's Certificate of Designation of
Class A Convertible Preferred Stock
Setting Forth the Powers, Preferences,
Rights, Qualifications, Limitations and
Restrictions of Such Class of Preferred
Stock (the "Certificate"). Copies of
the Agreement and the Certificate are on
file with the Secretary of the Company
and, upon request of any stockholder of
the Company, will be made available to
said stockholder.
The securities represented by this
certificate were issued pursuant to, and
the holder hereof is entitled to certain
rights and subject to certain
obligations contained in, a Stockholders
Agreement dated as of February 25, 1997,
a copy of which is available for
inspection at the principal office of
the issuer hereof, and will be furnished
without charge to the holder of such
securities upon written request.
Section 6.2. Notices. All notices and other communications given or
made pursuant hereto shall be in writing and shall be deemed to have been
duly given or made if and when delivered personally or by overnight courier
to the parties at the following addresses or sent by electronic transmission,
with confirmation received, to the telecopy numbers specified below (or at
such other address or telecopy number for a party as shall be specified by
like notice):
(a) If to the Purchaser:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
c/o The Vons Companies, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
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(b) If to the Company:
Chief Executive Officer
The Grand Union Company
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▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
General Counsel
The Grand Union Company
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▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Section 6.3. Certain Definitions. For purposes of this Agreement, the
term:
(a) "affiliate" means a person that directly or
indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control
with, the first mentioned person; including, without
limitation, any partnership or joint venture in which
the first mentioned person (either alone, or through or
together with any other subsidiary) has, directly or
indirectly, an interest of 10% or more;
(b) "business day" means any day other than a day
on which banks in the State of New York are required or
authorized to be closed;
(c) "Company Credit Agreement" means that certain
Amended and Restated Credit Agreement dated as of June
15, 1995, as from time to time in effect among the
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Company, the banks party thereto, and Bankers Trust
Company, as Agent for the banks party thereto, as filed
in the Company's public filings with SEC, together with
such related transaction documents, amendments,
extensions and waivers in effect as of the date hereof,
and the consent and waiver secured pursuant to Section
4.2 hereof.
(d) "Conversion Shares" means the shares of
Common Stock issuable upon conversation of the Shares;
(e) "DLJ Engagement Letter" means the letter
dated January 17, 1996 between DLJ and the Company, in
the form filed as Exhibit 10.28 to the Company's annual
report on Form 10-K for the fiscal year ended March 30,
1996.
(f) "Exchange Act" means the Securities Exchange
Act of 1934, as amended.
(g) "person" means an individual, corporation,
partnership, association, trust, unincorporated
organization, other entity or group (as defined in
Section 13(d)(3) of the Exchange Act);
(h) "subsidiary" or "subsidiaries" of the Company
or any other person means any corporation, partnership,
joint venture or other legal entity of which the
Company, or such other person, as the case may be
(either alone or through or together with any other
subsidiary), owns, directly or indirectly, more dm 50%
of the stock or other equity interests the holders of
which are generally entitled to vote for the election
of the board of directors or other governing body of
such corporation or other legal entity.
Each of the following terms shall have the meaning ascribed to it in the
section set forth beside such term in the table below:
Term Section
"Agreement" Recitals
"Bank Consent" 4.2
"Board Consent" 4.8
"Certificate of Designation" 1.2
"Closing" 1.4
"Closing Date" 1.4
"Common Stock" 2.3
"Company" Recitals
"DLJ Engagement Letter" 7.4(i)
"DLJ Waiver" 4.1
"GEIPPPII" 2.3
"July 1996 Stock Purchase Agreement" 2.3
"Preferred Stock" Recitals
"Purchase Price" 1.2
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"Purchaser" Recitals
"SEC" 3.4
"Securities Act" 3.3
"Shares" 1.2
"Stock Purchase" Recitals
"Transaction Documents" 2.4
"Trefoil II" 2.3
"Trefoil/GE Consent" 4.3
Section 6.4. Amendment. This Agreement may not be amended except by an
instrument in writing signed by the Company and of the Purchaser.
Section 6.5. Cooperation. The Purchaser and the Company agree to take,
or to cause to be taken, all such reasonable and lawful action as may be
necessary to make effective and consummate the transactions contemplated by
this Agreement.
Section 6.6. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 6.7. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of
law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in
any manner adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as
to effect the original intent of the parties as closely as possible in an
acceptable manner to the end that the transactions contemplated hereby are
fulfilled to the fullest extent possible.
Section 6.8. Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all prior agreements and undertakings, both written
and oral, among the parties, or any of them, with respect to the subject
matter hereof.
Section 6.9. Assignment. This Agreement shall not be assigned by
operation of law or otherwise.
Section 6.10. Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement, including, without limitation, by way of
subrogation.
Section 6.11. Failure or Indulgence Not Waiver, Remedies Cumulative. No
failure or delay on the part of any party hereto in the exercise of any right
hereunder shall impair such right
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or be construed to be a waiver of, or acquiescence in, any breach of any
representation, warranty or agreement herein, nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or
of any other right. All rights and remedies existing under this Agreement
are cumulative to, and not exclusive of, any rights or remedies otherwise
available.
Section 6.12. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of New York
applicable to contracts executed and fully performed within the State of New
York.
Section 6.13. Counterparts. This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original
but all of which taken together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the Company and the Purchaser have executed this
Stock Purchase Agreement as of the date first set forth above.
THE COMPANY
THE GRAND UNION COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive Officer
PURCHASER
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Schedule I
Wire Transfer Instructions
Account Name: The Grand Union Company
Account Number: 00319409
ABA Number: 021001033
Bank Name: Banker's Trust Company
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