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Title: |
Contribution Agreement |
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Entities: |
Northland Cranberries Inc.; U.S. Bank, NA; Schulte Roth & Zabel LLP |
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Date: |
2005 |
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Size: |
40KB total |
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Price: |
$34 |
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ID: |
#879070 |
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Page
| ARTICLE I DEFINITIONS | 2 |
| 1.1 Definitions | 2 |
ARTICLE II CAPITAL CONTRIBUTIONS |
4 |
| 2.1 Capital Contribution | 4 |
| 2.2 Additional Capital Contributions | 4 |
ARTICLE III REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY |
4 |
| 3.1 Organization and Good Standing | 4 |
| 3.2 Authority Relative to this Agreement | 4 |
| 3.3 Validly Issued and Authorized | 4 |
| 3.4 Capitalization of the Company | 4 |
| 3.5 No Violation | 5 |
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE CONTRIBUTORS |
5 |
| 4.1 Organization and Good Standing | 5 |
| 4.2 Authority Relative to this Agreement | 5 |
| 4.3 No Violation | 5 |
| 4.4 Investment Intent | 6 |
ARTICLE V CONDITIONS PRECEDENT TO CONTRIBUTORS' OBLIGATIONS |
6 |
| 5.1 Representations and Warranties True of the Closing Date | 6 |
| 5.2 Absence of Litigation | 6 |
| 5.3 Dissemination of Schedule 13E-3 | 7 |
| 5.4 Shareholders' Agreement | 7 |
ARTICLE VI CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS |
7 |
| 6.1 Representations and Warranties True of the Closing Date | 7 |
| 6.2 Absence of Litigation | 7 |
| 6.3 Dissemination of Schedule 13E-3 | 7 |
| 6.4 Shareholders' Agreement | 7 |
ARTICLE VII COVENANTS AND CONDITIONS |
7 |
| 7.1 Authorized Shares | 7 |
| 7.2 Termination of Registration Agreement | 7 |
| 7.3 Exercise of Warrant | 8 |
ARTICLE VIII CLOSING |
8 |
| 8.1 Time and Place of Closing | 8 |
| 8.2 Closing Deliveries | 8 |
| 8.3 Section 351 Statements | 8 |
i
| 8.4 Further Assurances | 9 |
ARTICLE IX TERMINATION |
9 |
| 9.1 Right of Termination Without Breach | 9 |
| 9.2 Termination for Breach | 9 |
ARTICLE X GENERAL PROVISIONS |
10 |
| 10.1 Notices | 10 |
| 10.2 Survival | 10 |
| 10.3 Expenses | 10 |
| 10.4 Complete Agreement | 10 |
| 10.5 GOVERNING LAW | 10 |
| 10.6 Severability | 11 |
| 10.7 Section Headings; Construction | 11 |
| 10.8 Further Assurances | 11 |
| 10.9 Assignability and Parties in Interest | 11 |
| 10.10 Counterparts | 11 |
| 10.11 Amendment and Modification | 12 |
ii
THIS CONTRIBUTION AGREEMENT, dated as of September 26, 2005 (this Agreement), is made and entered into by and among by and among Sun Northland, LLC (Sun Northland), First Generation LLC (First Generation), Wells Fargo Foothill, Inc. (f/k/a Foothill Capital Corporation) (Wells Fargo), Ableco Holding LLC (Ableco), ARK CLO 2000-1 Limited (ARK CLO), John Swendrowski (Sun Northland, First Generation, Wells Fargo, Ableco, ARK CLO and John Swendrowski sometimes being referred to herein individually as a Contributor and collectively as the Contributors), and New Harvest, Inc., a Wisconsin corporation (Company).
A. (i) Sun Northland owns 78,844,820 shares of class A common stock, $0.01 par value per share (Northland Common Stock), of Northland Cranberries, Inc., a Wisconsin corporation (Northland); (ii) First Generation owns 100 shares of Northlands Series B Preferred Stock, $0.01 par value per share (Northland Preferred Stock); (iii) Wells Fargo owns 2,543,053 shares of Northland Common Stock; (iv) Ableco owns a warrant to purchase 2,543,053 shares of Northland Common Stock at an exercise price of $0.01 per share; (v) ARK CLO owns 2,115,820 shares of Northland Common Stock; and (vi) John Swendrowski, in his individual capacity, owns 100,370 shares of Northland Common Stock.
B. (i) Sun Northland desires to contribute its shares of Common Stock to Company in return for an equal number of shares of Companys common stock, $0.01 par value per share (Company Common Stock); (ii) First Generation desires to contribute its shares of Preferred Stock to Company in return for an equal number of shares of Companys Series A Preferred Stock, $0.01 par value per share (Company Preferred Stock); (iii) Wells Fargo desires to contribute its shares of Common Stock to Company in return for an equal number of shares of Company Common Stock; (iv) Ableco desires to exercise its warrant and contribute the shares of Common Stock received upon such exercise to the Company in return for an equal number of shares of Company Common Stock; (v) ARK CLO desires to contribute its shares of Common Stock to Company in return for an equal number of shares of Company Common Stock; and (vi) John Swendrowski desires to contribute his shares of Common Stock to Company in return for an equal number of shares of Company Common Stock (such transactions being referred to collectively as the Capital Contributions); and
C. On the date hereof, the parties to this Agreement are entering into a Shareholders Agreement in the form attached hereto as Exhibit A (the Shareholders Agreement) to provide for certain rights and obligations with respect to their holdings of shares of Company Common Stock following the Capital Contributions; and
D. On the date hereof, Company is entering into a Stock Purchase Agreement (the Stock Purchase Agreement) with (i) U.S. Bank National Association (U.S. Bank); and (ii) Mid America Bank, f.s.b. (successor in interest to Mid America Bank, F.S.B.) (Mid America) (U.S. Bank, ARK CLO and Mid America sometimes being referred to herein collectively as the Bank Group), pursuant to which Company will purchase an aggregate of 5,503,167 shares of Northland Common Stock held by the Bank Group at a price of $0.21 cash per share (the Bank Group Purchase).
E. It is intended by the parties that the Capital Contributions occur pursuant to the terms of this Agreement in a tax-free exchange under Section 351 of the Internal Revenue Code of 1986, as amended (the Code), on the Closing Date (as such term is defined herein), immediately prior to the Bank Group Purchase;
F. Promptly following the Capital Contributions and the Bank Group Purchase, Company will own in excess of 90% of each class of capital stock of Northland and intends to merge into Northland in a short-form merger pursuant to Section 180.1104 of the Wisconsin Business Corporation Law (the Merger).
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