EXHIBIT 10.57
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STOCK COLLAR AGREEMENT
HOMEGROWN HOLDINGS CORP.
A DELAWARE CORPORATION
AND
▇▇▇ ▇. ▇▇▇▇▇▇
RE:
PUT AND CALL OPTIONS FOR 900,000 SHARES OF
COMMON STOCK OF ANNIE'S HOMEGROWN, INC.
DATED AS OF
DECEMBER 2, 1999
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This STOCK COLLAR AGREEMENT (the "Agreement") is entered into as of
this 1st day of December, 1999, by and between HOMEGROWN HOLDINGS CORP., a
Delaware corporation, ("HOLDINGS") and ▇▇▇ ▇. ▇▇▇▇▇▇ ("SELLER").
NOW THEREFORE the parties hereto agree as follows:
SECTION 1. STOCK COLLAR.
SECTION 1.1. STOCK COLLAR. HOLDINGS is hereby granted an option (the
"Call Option") to purchase from SELLER 900,000 shares (the "Shares") of common
stock, $0.001 par value per share (the "Common Stock"), of ANNIE'S HOMEGROWN,
INC., a Delaware corporation (the "COMPANY"); and SELLER shall have an option
(the "Put Option") (the Call Option and the Put Option are together called the
"Collar") to require HOLDINGS to purchase the Shares from her. The Call Option
shall be exercisable at the times and in the amounts described below; and the
Put Option shall be exercisable with respect to those Shares with respect to
which the Call Option has become exercisable fifteen (15) days after the Call
Option has become exercisable.
SECTION 1.2. EXERCISE PRICE. The exercise price of the Call Option
shall be $2.00 per share; and the exercise price for the Put Option shall be
$1.92 per share (in each case as adjusted for stock dividends or stock splits).
If, however, the Internal Revenue Service adopts regulations under section 1259
of the Code that (a) retroactively apply to this Collar, and (b) would
characterize this Collar as a constructive sale because of the closeness of the
exercise prices, then the Put Option exercise price shall be adjusted
prospectively as mutually agreed between the parties hereto so as to widen the
range of the Collar to the extent necessary to avoid such a characterization,
but in no case shall the Call Option exercise price be above $2.00 or the Put
Option exercise price be below $1.60 per share (in each case as adjusted for
stock dividends or stock splits).
SECTION 1.3. TRANSFER INSTRUCTIONS. Transfer of the Shares is currently
restricted by Irrevocable Stock Transfer Instructions dated July 27, 1995 (the
"Original Instructions") directed to the Bank of Boston as the COMPANY's
transfer agent; as amended pursuant to a First Addendum thereto also dated July
27, 1995 (the "Additional Instructions"). The Original and Additional
Instructions (the "Instructions") were required by the Massachusetts Division of
Securities in connection with the direct public offering of the COMPANY's common
stock that occurred in 1995.
The Original Instructions apply to 750,000 Shares owned by SELLER and
750,000 shares of Common Stock owned by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇") (the
"Covered Shares"). Among several methods for the sale of the Covered Shares,
Section 2(a) of the Original Instructions permit the sale of 25% of the Covered
Shares on each of the 6th, 7th, 8th and 9th anniversaries of the Original
Instructions. Section 2(i) of the Additional Restrictions apply to any other
shares of Common Stock (besides the Covered Shares) owned by SELLER or ▇▇▇▇▇▇;
and among several methods for the sale of such shares, permit the sale of such
shares at the rate of 1% of the shares of the COMPANY's outstanding Common Stock
during any three-month period.
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SECTION 1.4. EXERCISE DATES. The exercise dates of the Collar shall
occur so as to apply to the Shares as quickly as possible under Section 2(a) of
the Original Instructions and Section 2(i) of the Additional Instructions as now
in effect. Such exercise shall be as follows:
(a) with respect to the Covered Shares, the exercise dates will be
July 27, 2001, 2002, 2003 and 2004 (the "Covered Share Exercise
Dates"), and the SELLER shall receive as purchase price for the
Covered Shares with respect to which a Call or Put Option is
exercised in connection with each Covered Share Exercise Date an
amount equal to the applicable exercise price set forth in
Section 1.2 above multiplied by the 187,500 Covered Shares (as
adjusted for stock dividends or stock splits) which shall become
available under the Instructions on each Covered Share Exercise
Date; and
(b) with respect to all other Shares owned by the SELLER, the
exercise dates shall be the Closing Date, as hereinafter defined,
and the date of each three-month anniversary of the Closing Date
thereafter (the "Other Share Exercise Dates"), and the SELLER
shall receive as the purchase price for the Shares with respect
to which a Call or Put Option is exercised in connection with the
Other Share Exercise Dates an amount equal to the applicable
exercise price set forth in Section 1.2 above multiplied by the
one percent (1%) of the total number of shares of Common Stock
issued and outstanding on the date hereof (as adjusted for stock
dividends or stock splits) which shall become available on each
Other Share Exercise Date.
SECTION 1.5. TRANSFER OF THE SHARES. The actual transfer and sale of
and payment for the Shares shall occur as permitted by Section 2(a) of the
Original Instructions and Section 2(i) of the Additional Instructions as in
effect on the date hereof provided, however, that the title and beneficial
interest of the shares shall transfer to HOLDINGS at such earlier time as the
Commonwealth of Massachusetts permits and the applicable Call Option is
exercised (any Shares so transferred are hereinafter referred to as "Early
Shares"), provided, further, that payment for the Early Shares shall
nevertheless be made in accordance with the payment schedule set forth in
Section 1.4 above, and any payments due on the Early Shares shall be represented
by delivery by HOLDINGS prior to the transfer of the Early Shares a
non-interest-bearing Promissory Note for the principal sum due for the Early
Shares (which shall equal $2.00 per Early Share with respect to which a Call
Option is exercised pursuant hereto). As the Shares become transferable to
HOLDINGS, either as the result of an Exercise of a Call Option by HOLDINGS, or
the exercise of a Put Option by the SELLER, SELLER shall transfer or cause the
transfer of the SHARES to the escrow agent (the "Escrow Agent") under the Pledge
Agreement described in Section 1.6 below, to hold on behalf HOLDINGS, subject to
a pledge for the benefit of SELLER and ▇▇▇▇▇▇ as described therein. Until the
Shares are sold and transferred, they shall be subject to an irrevocable proxy
pursuant to an agreement about such proxy between HOLDINGS and SELLER (the
"Irrevocable Proxy Agreement") and pursuant to which a representative of
HOLDINGS shall act as the proxy for the Seller and vote the Shares commencing at
the Closing, as defined herein. The Irrevocable Proxy shall terminate if and
when HOLDINGS fails to exercise any installment of the Call Option within
fifteen (15) days of having the right to do so, and such failure continues for
five (5) days after notice from SELLER that the Call Option has not been
exercised.
SECTION 1.6. SECURITY. To secure payment by HOLDINGS of the purchase
price for the Shares, HOLDINGS shall enter into a Pledge Agreement (the "Pledge
Agreement") benefiting
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SELLER and ▇▇▇▇▇▇ pursuant to which any Shares owned by HOLDINGS shall be
pledged together with the subordinated promissory note of the COMPANY and the
preferred stock of the COMPANY which HOLDINGS is acquiring concurrently with the
Closing under this Agreement (collectively the "Collateral"). The Pledge
Agreement shall be substantially in the form attached hereto as Exhibit "A"
hereto, providing for the customary protections and remedies in favor of the
parties and shall remain in existence until the purchase price for the Shares
has been paid in full (provided, however, that as such purchase price is paid,
collateral shall be released from the Pledge Agreement so long as the aggregate
value of the remaining collateral, not including any Early Shares within the
collateral, except to the extent payment has actually been made for them, as
further described in the Pledge Agreement, is equal to 200% of the purchase
price remaining to be paid).
SECTION 2. CLOSING.
SECTION 2.1. THE CLOSING DATE. Subject to the terms and conditions
hereof and on the basis of the representations and warranties hereinafter set
forth, on December 2, 1999 or on such other date as shall be agreed upon by the
parties (the "Closing Date"), the parties shall execute this Agreement, and
SELLER and HOLDINGS shall execute and deliver to each other an Irrevocable Proxy
Agreement substantially in the form attached hereto as Exhibit "B" naming
HOLDINGS' chosen representative as the proxy (the "Proxy") to vote the Shares
during the life of the Irrevocable Proxy Agreement, in return for HOLDINGS'
promise to pay the purchase price and delivery of the Pledge Agreement securing
payment for the Shares.
The closing of the transactions under this Agreement (the "Closing")
shall take place at the offices of ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, located at ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ on the Closing Date. The Closing shall be deemed to
have been effective as of 11:59 p.m. on the Closing Date.
SECTION 2.2. DELIVERY AND TRANSFER. At the Closing, the
parties shall exchange executed copies of this Agreement and
the Irrevocable Proxy Agreement against the promise of payment
therefor by HOLDINGS and delivery of the Pledge Agreement as
security for payment by HOLDINGS, and in the case that
HOLDINGS exercises its Call Option with respect to the first
set of Shares with respect to which the Call Option has become
exercisable, payment of the appropriate amount due on such
Shares.
SECTION 2.3. SUBSEQUENT DELIVERIES AND TRANSFERS. Upon each exercise of
a Call or Put Option, HOLDINGS shall deliver payment for the Shares as to which
the Call or Put Option to SELLER has been exercised within fifteen (15) days
after the date of exercise of such Option, and SELLER shall assign and deliver
such Shares to HOLDINGS within fifteen (15) days after receipt of payment
therefor. HOLDINGS shall promptly cause the Shares assigned and delivered to it
to be transferred to it on the books of the Company.
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SECTION 3. REPRESENTATIONS AND WARRANTIES BY SELLER
SELLER hereby represents and warrants except as disclosed on the
Schedule attached hereto, as of the date hereof as follows:
SECTION 3.1. POWER OF TRANSFER. SELLER has all necessary power and
authority to own, use and transfer the Shares and to transact the business being
conducted with HOLDINGS as permitted under and consistent with the Instructions.
SECTION 3.2. NO CONFLICT. Neither the execution and delivery of this
Agreement nor compliance with any of the provisions therein, nor the
consummation of the transactions contemplated thereby, will:
(a) conflict with or result in a breach of any provision of any
shareholder agreement;
(b) result in a default, or give rise to any right of termination,
cancellation or acceleration, under any term, condition or
provision of any contract, encumbrance or other instrument or
obligation to which SELLER, is a party or by which it or any
of the Shares may be bound; or
(c) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to SELLER, or any of the Shares.
SECTION 3.3. TITLE TO SHARES. SELLER has good and marketable title to
the Shares.Except as provided in the Instructions, the Shares are not subject to
any mortgage, pledge, lien, lease, security interest, encumbrance or obligation
not yet due and payable, which materially detracts from the value of the Shares.
SECTION 3.4. COMPLIANCE WITH OTHER INSTRUMENTS. The execution, delivery
and performance of and compliance with this Agreement, will not result in a
breach or violation of or constitute a material default under any legal
instrument or document nor create any violation, breach or default which
singularly or in the aggregate would (a) have a material adverse affect on the
Shares; (b) require any consent or waiver (which has not been obtained), or (c)
result in the creation of a pledge, lien, encumbrance, or charge on any of the
Shares (except as provided herein under the Pledge Agreement).
SECTION 3.5. LEGAL PROCEEDINGS, BUSINESS, ETC. There is no legal,
equitable, administrative or arbitration action, suit, proceeding or known
investigation pending or, to the best knowledge of the SELLER, threatened
against or affecting SELLER or any of the Shares. There is no judgment, decree,
injunction, rule or order of any court, governmental department, commission,
agency, instrumentality or arbitrator outstanding against SELLER which would
affect the Shares and, to the best knowledge of SELLER, there is no basis for
any such action, suit, proceeding or investigation. SELLER is not in default
with respect to any order, injunction or decree of any court or governmental
department, commission, board or agency, and no such order, injunction or decree
is now in effect which restrains the sale of the Shares.
SECTION 3.6. CONSENTS AND APPROVALS. No consent, approval, order,
authorization or registration, qualification, designation, declaration, or
filing with any person including any
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federal, state, or local governmental authority on SELLER's part is required in
connection with the valid execution, delivery and performance of this Agreement
or the consummation of any other transaction contemplated by hereby, except
registration and qualification (or filings with respect to exemptions from
qualification) under the Federal securities laws and applicable Delaware laws,
which qualifications will have been obtained and will be effective on the
Closing Date unless adequate exemptions from such qualifications are then
available.
SECTION 4. REPRESENTATIONS AND WARRANTIES BY HOLDINGS.
HOLIDINGS hereby represents and warrants to SELLER, as of the date
hereof as follows:
SECTION 4.1. ORGANIZATION. HOLDINGS is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
HOLDINGS has all necessary power and authority to own, use and transfer its
properties and assets and to transact the business being conducted under this
Agreement and the Irrevocable Proxy Agreement, as well as the Investment and
Stock Purchase Agreement to be entered into between HOLDINGS and the COMPANY
(the "Investment and Stock Purchase Agreement").
SECTION 4.2. AUTHORIZATION. HOLDINGS has all necessary corporate power
and authority to enter into this Agreement as well, as the Investment and Stock
Purchase Agreement. Once this Agreement has been duly executed and delivered by
HOLDINGS it will constitute a legal, binding and valid obligation of HOLDINGS,
enforceable against HOLDINGS in accordance with its terms, except as limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to creditor's rights generally or by equitable principles (whether
considered in an action at law or equity.)
SECTION 4.3. CONSENTS AND APPROVALS. No consent, approval,
authorization of, or declaration, filing or registration with any person
including any federal, state or local governmental or regulatory authority, or
any other person or entity is required to be made or obtained by HOLDINGS in
connection with the execution, delivery and performance of this Agreement or the
Investment and Stock Purchase Agreement.
SECTION 4.4. NO CONFLICT OR VIOLATION. Neither the execution and
delivery of this Agreement nor the consummation of the transactions contemplated
hereby will result in a violation of or a conflict with any provision of the
Certificate of Incorporation of HOLDINGS or a breach thereof, or a default
under, of any term or provision of any contract, agreement, indebtedness, lease,
commitment, license, franchise, permit, authorization, or concession to which
HOLDINGS is a party, which breach or default would have a material adverse
effect on the business or financial condition of HOLDINGS or its ability to
consummate the transactions contemplated hereby.
SECTION 5. CONVENANTS.
SECTION 5.1. EXPENSES OF THE PARTIES. Except as otherwise expressly
provided in this Agreement, each of the parties hereto shall pay all of its
expenses incurred in connection with the
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preparation, negotiation, authorization and consummation of this Agreement and
the transactions contemplated hereby, including all fees and expenses of agents,
representatives, legal counsel and accountants.
SECTION 5.2. FURTHER ASSURANCES. Each party shall cooperate with the
others, take such further action, and execute and deliver such further
documents, as may be reasonably requested by any other party in order to carry
out the terms and purposes of this Agreement.
SECTION 5.3. DIVIDENDS. The parties hereby acknowledge that until the
Shares are sold and transferred to HOLDINGS hereunder, any dividends on such
unsold Shares shall be for the account of SELLER.
SECTION 5.4 PROPORTIONATE EXERCISE OF CALL OPTIONS. Simultaneous with
the Closing of this Agreement, HOLDINGS is entering into a Stock Collar
Agreement with ▇▇▇▇▇▇ (the "▇▇▇▇▇▇ Stock Collar Agreement"), pursuant to which
HOLDINGS may exercise a call option (the "▇▇▇▇▇▇ Call Option") similar to the
Call Option described herein with respect to 1,677,691 shares of Common Stock of
the Company owned by ▇▇▇▇▇▇ (the "▇▇▇▇▇▇ Shares"). The ▇▇▇▇▇▇ Call Option shall
be exercisable on the same dates as the Call Option under this Agreement.
HOLDINGS agrees, on each exercise date, until the purchase of all of the Shares
under this Agreement or the purchase of all of the shares under the ▇▇▇▇▇▇ Stock
Collar Agreement, to exercise its Call Option under this Agreement and its call
option under the ▇▇▇▇▇▇ Stock Collar Agreement with respect to the same number
of shares of Common Stock.
SECTION 6. CONDITIONS TO PERFORMANCE OBLIGATIONS.
SECTION 6.1. CONDITIONS TO HOLDINGS' PERFORMANCE OBLIGATIONS. The
obligations of HOLDINGS to complete the transactions provided for herein shall
be subject, at its election, to satisfaction on or before the Closing Date of
each of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES: All representations and
warranties of SELLER contained in this Agreement shall be true
and correct in all respects as of this date;
(b) SIMULTANEOUS CLOSING OF TRANSACTIONS WITH THE COMPANY. The
Investment and Stock Purchase Agreement and the other
agreements contemplated thereby shall close simultaneously
with the Closing under this Agreement;
(c) PRE-CLOSING OBLIGATIONS: SELLER shall have performed all
obligations required to be performed under this Agreement, the
performance of which has not been waived by HOLDINGS;
(d) CONSENTS FOR HOLDINGS: All notices, filings, consents, waivers
and approvals required to be obtained by HOLDINGS concerning
this Agreement and the Investment and Stock Purchase Agreement
shall have been given, made or obtained, as the case may be,
by HOLDINGS;
(e) NO BAR: There shall not be in effect any judgment, decree or
order of, or position taken by, any court or administrative
body of competent jurisdiction, nor shall
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there have been any action, suit, proceeding or known
investigation instituted or threatened, nor shall any law or
regulation have been enacted or any action taken thereunder,
which would, in HOLDINGS' reasonable judgment, restrain or
prohibit, make illegal, or subject HOLDINGS to material damage
as a result of, the consummation of the transactions
contemplated by this Agreement;
(e) CONSENT OF HOLDERS OF OTHER SECURITIES: On or prior to the
Closing Date, any consent or approvals required to be obtained
from any holder or holders of any outstanding securities of
COMPANY which shall be necessary to permit the consummation of
the transactions contemplated by the Investment and Stock
Purchase Agreement between COMPANY and HOLDINGS shall have
been obtained and all such consents or amendments shall be
satisfactory in form and substance to HOLDINGS.
(f) SIMULTANEOUS CLOSINGS. The ▇▇▇▇▇▇ Stock Collar Agreement and
an Irrevocable Proxy Agreement (the "▇▇▇▇▇▇ Irrevocable Proxy
Agreement") between HOLDINGS and ▇▇▇▇▇▇ shall close
simultaneously with the Closing under this Agreement.
(g) IRREVOCABLE PROXY. The Irrevocable Proxy Agreement between
SELLER and HOLDINGS substantially in the form attached hereto
as Exhibit "B" shall be in effect.
(h) OTHER MATTERS: HOLDINGS shall have received such other
instruments and documents as shall have been reasonably
requested by counsel to HOLDINGS on or before the Closing
Date.
SECTION 6.2. CONDITIONS TO THE OBLIGATIONS OF SELLER. The obligations
of SELLER to complete the transactions provided for herein shall be subject, at
its election, to satisfaction on or before the Closing Date of each of the
following conditions:
(a) REPRESENTATIONS AND WARRANTIES: All representations and
warranties of HOLDINGS contained in this Agreement shall be
true and correct in all respects as of the date hereof and as
of the Closing Date as though made on and as of the Closing
Date (except as may be otherwise provided in this Agreement);
(b) PRE-CLOSING OBLIGATIONS: HOLDINGS shall have performed all
obligations required to be performed by it hereunder, the
performance of which has not been waived by SELLER; and
(c) DUE AUTHORIZATION: HOLDINGS execution and delivery of this
Agreement, its compliance with the provisions hereof and the
consummation of all of the transactions contemplated hereby
shall have been duly and validly authorized by all necessary
action on the part of HOLDINGS, and SELLER shall have received
a duly certified copy of all actions taken by HOLDINGS' Board
of Directors, chief executive officer and the chief financial
officer effecting the same;
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(d) CONSENTS BY HOLDINGS, ETC.: All notices, filings, consents,
waivers and approvals required to be obtained shall have been
given, made or obtained, as the case may be, by HOLDINGS, and
SELLER shall have received a true copy of each thereof;
(e) NO BAR: There shall not be in effect any judgment, decree or
order of, or position taken by, any court or administrative
body of competent jurisdiction, nor shall there have been any
action, suit, proceeding or known investigation instituted or
threatened, nor shall any law or regulation have been enacted
or any action taken thereunder, which would, in SELLER's
reasonable judgment, restrain or prohibit, make illegal, or
subject SELLER to material damage as a result of, the
consummation of the transactions contemplated hereby;
(f) SIMULTANEOUS CLOSINGS OF OTHER TRANSACTIONS: The Investment
and Stock Purchase Agreement, and the other agreements
contemplated thereby, and the ▇▇▇▇▇▇ Stock Collar Agreement
and the ▇▇▇▇▇▇ Irrevocable Proxy Agreement, shall close
simultaneously with the Closing under this Agreement
(g) OTHER MATTERS: SELLER shall have received such other
instruments and documents as shall have been reasonably
requested by them on or before the Closing Date.
SECTION 7. INVESTMENT REPRESENTATIONS AND RESTRICTIONS
SECTION 7.1. RESTRICTED SECURITIES. HOLDINGS understands that the
securities it is purchasing are characterized as restricted securities under
Federal laws because they were acquired from SELLER in a transaction not
involving a public offering and that under such laws and applicable regulations
the securities may be resold without registration under Federal securities laws
only in certain limited circumstances. HOLDINGS represents, and in entering into
this Agreement, SELLER understands, that HOLDINGS is acquiring the Shares for
the purpose of investment and not with a view to the distribution thereof, and
that HOLDINGS has no present intention of selling, negotiating or otherwise
disposing of the Shares; it being understood, however, that the disposition of
HOLDINGS' property will at all times be and remain within its control.
SECTION 7.2. NOT FOREIGN INVESTOR. HOLDINGS is not a foreign investor
as defined by the United States Department of Commerce, and therefore HOLDINGS
will not be required to file any Form BE-13 with the Department of Commerce.
SECTION 7.3. LEGENDS. It is further understood by HOLDINGS that the
certificates evidencing the Shares shall be endorsed with the following legends,
or a legend to similar effect:
(a) FEDERAL LEGEND. THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, (THE "ACT") AND ARE "RESTRICTED SECURITIES" AS
DEFINED IN RULE 144 PROMULGATED UNDER THE ACT. THE SECURITIES
MAY NOT BE SOLD OR OFFERED FOR SALE OR
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OTHERWISE DISTRIBUTED EXCEPT (1) IN CONJUNCTION WITH AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES UNDER THE ACT,
(2) IN COMPLIANCE WITH RULE 144, OR (3) UNDER AN OPINION OF
COUNSEL, SATISFACTORY TO ANNIE'S HOMEGROWN, INC. THAT SUCH
REGISTRATION OR COMPLIANCE IS NOT REQUIRED AS TO SAID SALE,
OFFER OR DISTRIBUTION.
(b) OTHER LEGENDS. Any other legends required by applicable state
blue sky law which shall not be inconsistent with the
Instructions.
SECTION 8. MISCELLANEOUS.
SECTION 8.1. POWERS AND RIGHTS NOT WAIVED; REMEDIES CUMULATIVE. No
delay or failure on the part of either party in the exercise of any power or
right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of the same preclude any other or further exercise thereof, or
the exercise of any other power or right, and the rights and remedies of each
party are cumulative and no waiver or consent, given or extended to the other
party, shall extend to or affect any obligation or right not expressly waived or
consented to.
SECTION 8.2. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon each of the parties and their heirs, executors, successors and assigns and
shall inure to the benefit of and be binding upon each of the parties and their
successors and assigns.
SECTION 8.3. SURVIVAL OF COVENANTS AND REPRESENTATIONS. All covenants,
representations and warranties made by the parties herein, whether or not in
connection with the Closing Date, will survive the closing and the delivery of
this Agreement.
SECTION 8.4. SEVERABILITY. Should any part of this Agreement for any
reason be declared invalid or unenforceable, such decision will not affect the
validity or unenforceability of any remaining portion, which remaining portion
will remain in force and effect as if this Agreement had been executed with the
invalid portion thereof eliminated and it is hereby declared the intention of
the parties hereto that they would have executed the remaining portion of this
Agreement without including therein any such part or portion which may, for any
reason, be hereafter declared invalid or unenforceable.
SECTION 8.5. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with Delaware law.
SECTION 8.6. SUBMISSION TO JURISDICTION. The parties hereby irrevocably
submit to the jurisdiction of the courts of the Commonwealth of Massachusetts
for the purpose of any legal action or proceeding in any such court with respect
to, or arising out of, this Agreement or any other agreement, contract or
instrument executed and delivered in connection therewith.
SECTION 8.7. CAPTIONS. The descriptive headings of the various Sections
or parts of this Agreement are for convenience only and shall not affect the
meaning or construction of any of the provisions hereof.
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SECTION 8.8. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each executed counterpart constituting air original but all
together only one agreement.
SECTION 8.9. ENTIRE AGREEMENT. This Agreement and the other documents
delivered under it constitute the full and entire understanding and agreement
between the parties with respect to the subject matter of this Agreement and
such other documents, and supercedes all previous agreement and understandings,
written or oral, concerning the subject matter of this Agreement and such other
documents.
SECTION 8.10. AMENDMENT AND WAIVER. This Agreement may be amended only
by a writing executed by each of the parties hereto. No waiver of compliance
with any provision or condition hereof, and no consent provided for herein,
shall be effective unless evidenced by an instrument in writing duly executed by
the party sought to be charged therewith. No failure on the part of any party to
exercise, and no delay in exercising, any of its rights hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise by any party of
any right preclude any other or future exercise thereof or the exercise of any
other right.
SECTION 8.11. TAX CONSEQUENCES. The parties each acknowledge and agree
that they have sought independent advice as to the tax consequences of the
transactions contemplated hereby, and that no party hereto makes any
representation or warranty, express or implied, to any other party with respect
thereto.
SECTION 8.12. ASSIGNMENT. No party shall assign or attempt to assign
any of its rights or delegate any of its obligations under this Agreement
without the prior written consent of each of the other parties hereto.
SECTION 8.13. NOTICES, ETC. Each notice, report, demand, waiver,
consent and other communication required or permitted to be given hereunder
shall be in writing and shall be sent (a) by registered or certified first-class
mail, postage prepaid and return receipt requested, (b) by Federal Express or
comparable overnight courier, or (c) by telecopier, addressed as follows:
If to HOLDINGS: ▇▇▇▇ ▇▇▇▇▇▇▇
Homegrown Holdings Corp.
▇▇▇ "▇" ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: C. ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to SELLER: ▇▇▇ ▇. ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
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with a copy to: ▇▇▇▇▇▇▇▇ & Sunstein LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 8.14. ATTORNEYS' FEES. In the event any party incurs costs in
enforcing this Agreement, the prevailing party in any subsequent litigation
shall be entitled to full reimbursement of their expenses of enforcement
including attorneys' fees. This right shall survive and not merge into any
judgment obtained by a party hereto.
SECTION 8.15. NO THIRD PARTY BENEFICIARY. The provisions of this
Agreement are for the benefit only of the parties hereto, and no third party may
seek to enforce, or benefit from, these provisions. The parties specifically
disavow any desire or intention to create any third party beneficiary hereunder,
and specifically declare that no person or entity, except for the parties and
their successors-in-interest, shall have the right hereunder, nor any right or
enforcement hereof.
SECTION 8.16. NO RELIANCE ON OTHER INFORMATION. Except for the
representations and warranties in this Agreement, neither HOLDINGS nor SELLER
nor other person acting for them makes any other representation or warranty,
express or implied, with respect to the transactions contemplated by the
Agreement, whether oral or written, whether by HOLDINGS or SELLER or any of
their representatives or agents or any other person.
* * * * * * * * * *
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WHEREAS the parties enter into this Agreement on the date set forth
above.
HOMEGROWN HOLDINGS CORP.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Title: President
--------------------------
SELLER
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇, individually
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