{"id":43728,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/stock-sale-agreement-california-and-hawaiian-sugar-co-inc-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"stock-sale-agreement-california-and-hawaiian-sugar-co-inc-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/stock-sale-agreement-california-and-hawaiian-sugar-co-inc-and.html","title":{"rendered":"Stock Sale Agreement &#8211; California and Hawaiian Sugar Co. Inc. and Citicorp Venture Capital Ltd."},"content":{"rendered":"<pre>                              AMENDED AND RESTATED\n\n                              STOCK SALE AGREEMENT\n\n\n                                 BY AND BETWEEN\n\n\n                  CALIFORNIA AND HAWAIIAN SUGAR COMPANY, INC.\n\n                                   ('SELLER')\n\n                                      AND\n\n                         CITICORP VENTURE CAPITAL, LTD.\n\n\n                                 ('PURCHASER')\n\n                         DATED AS OF DECEMBER 24, 1998\n\n\n\n\n\n\n                               TABLE OF CONTENTS\n                                                              PAGE\n                                                              ----\nARTICLE I TERMS OF PURCHASE AND SALE............................3\n     1.01. Sale of the Shares...................................3\n     1.02. Purchase Price.......................................3\n     1.03. Closing..............................................3\n\nARTICLE II REPRESENTATIONS AND WARRANTIES OF SELLER.............4\n     2.01. Organization; Good Standing..........................4\n     2.02. Corporate Power and Authority; Effect of Agreement...4\n     2.03. Capitalization.......................................4\n     2.04. Governmental Authorization...........................5\n     2.05. No Conflict..........................................5\n     2.06. Title to Shares......................................5\n     2.07. Advisory Fees........................................6\n\nARTICLE III REPRESENTATIONS AND WARRANTIES OF PURCHASER.........6\n     3.01. Organization; Good Standing..........................6\n     3.02. Power and Authority; Effect of Agreement.............6\n     3.03. Governmental Authorization...........................6\n     3.04. No Conflict..........................................7\n     3.05. Investment Representations...........................7\n     3.06. Tax Matters..........................................8\n     3.07. Advisory Fees........................................8\n\nARTICLE IV COVENANTS OF THE PARTIES.............................8\n     4.01. Cooperation; Further Assurances......................8\n     4.02. Certain Rights and Obligations of the Parties........8\n     4.03. Certain Filings.....................................10\n     4.04. Stockholders Agreement and Registration Rights\n           Agreement...........................................10\n     4.05. CMP Loan............................................10\n     4.06. Executive Stock Purchase Agreements.................11\n     4.07. Confidentiality.....................................11\n     4.06. Specific Performance................................12\n\nARTICLE V CONDITIONS TO CLOSING................................12\n     5.01. Conditions of All Parties...........................12\n     5.02. Conditions to the Obligations of Seller.............14\n     5.03. Conditions to Obligations of Purchaser..............14\n\nARTICLE VI TERMINATION PRIOR TO CLOSING........................15\n     6.01. Termination.........................................15\n     6.02. Effect on Obligations...............................15\n\nARTICLE VII MISCELLANEOUS......................................16\n     7.01. Expenses............................................16\n     7.02. Notices.............................................16\n     7.03. Governing Law.......................................18\n     7.04. Entire Agreement....................................18\n     7.05. Counterparts; Effectiveness.........................18\n     7.06. Amendments; No Waivers..............................18\n     7.07. Severability........................................19\n     7.08. Captions............................................19\n     7.09. Successors and Assigns..............................19\n     7.10. Restrictive Legend..................................19\n\n\n                                    EXHIBITS\n\nExhibit A Form of Subordinated Credit Agreement between Newco, as borrower, and\n          Citicorp Mezzanine Partners, L.P., as lender (including form of\n          warrant to purchase common stock)\n\nExhibit B Form of Stockholders Agreement\n\nExhibit C Form of Registration Rights Agreement\n\n\n\n\n                             AMENDED AND RESTATED\n                             --------------------\n                             STOCK SALE AGREEMENT\n                             --------------------\n\n     This AMENDED AND RESTATED STOCK SALE AGREEMENT (this 'Agreement'), dated\nas of December 24, 1998, is by and between California and Hawaiian Sugar\nCompany, Inc., a Hawaii corporation (the 'Seller'), and Citicorp Venture\nCapital, Ltd., a New York corporation ('Purchaser').\n\n                                    RECITALS\n\n     WHEREAS, Seller is a party to that certain Amended and Restated Asset\nPurchase Agreement, dated as of the date hereof, by and among, among others,\nSeller and Sugar Acquisition Corporation, a Delaware corporation ('Newco') (the\n'Asset Purchase Agreement'), pursuant to which Newco proposes to issue to\nSeller 810,000 shares of Newco Common Stock (as defined in the Asset Purchase\nAgreement), 25,000 shares of Newco Exchangeable Preferred Stock (as defined in\nthe Asset Purchase Agreement), 90,000 shares of Newco Class B Common Stock (as\ndefined in the Asset Purchase Agreement), 24,000 shares of Newco Junior\nPreferred Stock (as defined in the Asset Purchase Agreement) and the Newco Note\n(as defined in the Asset Purchase Agreement), as partial consideration for the\ntransfer of substantially all of the assets and business of Seller to Newco;\n\n     WHEREAS, following the consummation of the transactions contemplated by\nthe Asset Purchase Agreement, Seller desires to sell to Purchaser, and\nPurchaser desires to purchase from Seller, the number of shares of Newco Common\nStock, Newco Class B Common Stock, and Newco Junior Preferred Stock, set forth\non Schedule I for the consideration set forth on Schedule I; and.\n\n     WHEREAS, Seller and Purchaser have previously entered into a Stock Sale\nAgreement dated as of August 5, 1998 relating to the foregoing transactions,\nand Seller and Purchaser desire to amend and restate the Stock Sale Agreement\nas of the date hereof on the terms described herein.\n\n                                   AGREEMENT\n\n     NOW, THEREFORE, in consideration of the mutual representations,\nwarranties, covenants and agreements, and upon the terms and subject to the\nconditions, hereinafter set forth, the parties hereby agree as follows:\n\n                                  DEFINITIONS\n\n     'Affiliate' means, with respect to any Person, any Person directly or\nindirectly controlling, controlled by or under direct or indirect common\ncontrol with such other Person.\n\n     'Applicable Law' means, with respect to any Person, any domestic or\nforeign, federal, state or local statute, law, ordinance, rule, administrative\ninterpretation, regulation, order, writ, injunction, judgment, decree or other\nrequirement of any Governmental Authority applicable to such Person or any of\nits Affiliates or any of their respective properties, assets, officers,\ndirectors, employees, consultants or agents (in connection with such officer's,\ndirector's, employee's, consultant's or agent's activities on behalf of such\nPerson or any of its Affiliates).\n\n     'CMP' means Citicorp Mezzanine Partners, L.P.\n\n     'CMP Loan' means that certain $25,000,000 loan from CMP to Newco to be\nconsummated at the Closing (as defined in Section 1.03 hereof) pursuant to the\nCMP Loan Agreement.\n\n     'CMP Loan Agreement' means that certain Subordinated Credit Agreement\nproviding for the CMP Loan, to be executed as of the Closing Date by Newco and\nCMP, substantially in the form attached hereto as Exhibit A.\n\n     'Governmental Authority' means any foreign, domestic, federal,\nterritorial, state or local governmental authority, quasi-governmental\nauthority, instrumentality, court, government or self-regulatory organization,\ncommission, tribunal or organization or any regulatory, administrative or other\nagency, or any political or other subdivision, department or branch of any of\nthe foregoing.\n\n     'Material Adverse Effect' means a change in, or effect on, Seller that (A)\nresults in a material adverse effect on, or a material adverse change in, the\nassets, operations, financial condition or results of operations of Newco\n(excluding (i) adverse changes of an industry-wide impact or (ii) adverse\nchanges attributable to the execution of this Agreement and the publicity\nattendant thereto) or (B) materially impairs or prohibits the ability of Seller\nand Purchaser to consummate the transactions contemplated hereby.\n\n     'Person' means an individual, corporation, partnership, limited liability\ncompany, association, trust, estate or other entity or organization, including\na Governmental Authority.\n\n                                   ARTICLE I\n                           TERMS OF PURCHASE AND SALE\n\n     1.01.  SALE OF THE SHARES.  At the Closing (as defined in Section 1.03\n            ------------------\nhereof), subject to the terms and conditions set forth herein, Seller shall\nsell to Purchaser, and Purchasershall purchase from Seller, the number of\nshares of Newco Common Stock, NewcoClass B Common Stock and Newco Junior\nPreferred Stock (collectively, the 'Securities') set forth on Schedule I.\n\n     1.02.  PURCHASE PRICE.  Subject to the terms and conditions of this\n            --------------\nAgreement, in full payment of the purchase price for the Securities, Purchaser\nshall pay to Seller  in cash the purchase price for the Securities set forth\non Schedule I (the 'Purchase Price').\n\n     1.03.  CLOSING.  \n            -------\n\n            (a)  The closing of the transactions contemplated hereby (the\n'Closing') shall take place at the offices of Gibson, Dunn &amp; Crutcher LLP,\n333 South Grand Avenue, Los Angeles, California 90071, on the date on which the\nlast of the conditions to Closing set forth in Sections 5.01, 5.02 and 5.03\nhave been satisfied or waived by the party or parties entitled to waive the\nsame or such other date as to which Seller and Purchaser may agree (the\n'Closing Date').\n\n            (b)  At the Closing, subject to the terms and conditions set forth\nherein, Seller shall deliver or cause to be delivered to Purchaser certificates\nrepresenting the Securities, duly endorsed in blank for transfer.  The\nSecurities shall bear legends giving notice of restrictions on transfer as set\nforth in Section 7.10 hereof.\n\n            (c)  At the Closing, subject to the terms and conditions set forth\nherein, Purchaser shall pay and deliver to Seller the Purchase Price allocable\nto the Securities being purchased by Purchaser.  The Purchase Price shall be\npayable to Seller at the Closing by wire transfer in immediately available\nfunds to a bank account designated by Seller in writing.\n\n                                   ARTICLE II\n                    REPRESENTATIONS AND WARRANTIES OF SELLER\n\n     Seller represents and warrants to Purchaser as follows:\n\n     2.01.  ORGANIZATION; GOOD STANDING.  Seller is duly organized, validly\n            ---------------------------\nexisting and in good standing under thelaws of the state of its incorporation\nor organization and has all requisite power and authority under such laws to\ncarry on its business as now conducted.\n\n     2.02.  CORPORATE POWER AND AUTHORITY; EFFECT OF AGREEMENT.  The\n            --------------------------------------------------\nexecution, delivery and performance by Seller of this Agreement, and\nthe consummation by Seller of the transactions contemplated herein, including\nthe sale of the Securities, have been duly authorized by all necessary action\non the part of Seller.  This Agreement has been duly and validly executed and\ndelivered by Seller and constitutes a valid and binding obligation of Seller,\nenforceable against Seller in accordance with its terms, except to the extent\nthat such enforceability may be limited by bankruptcy, insolvency,\nreorganization, moratorium or other similar laws relating to creditors' rights\ngenerally and is subject to general principles of equity.\n\n     2.03.  CAPITALIZATION.  As of the Closing, (i) the authorized capital\n            --------------\nstock of Newco shall consist solely of the Newco Common Stock, the Newco Class\nB Common Stock, Newco Exchangeable Preferred Stock and the Newco Junior\nPreferred Stock in the amounts, and having the rights, preferences and\nprivileges, referred to in the Asset Purchase Agreement and (ii) other than the\nshares of Newco Common Stock, Newco Class B, Newco Junior Preferred Stock and\nwarrants to purchase Newco Common Stock issuable pursuant to the Asset Purchase\nAgreement and warrants to purchase Newco Class B Common Stock issuable in\nconnection with the funding of the CMP Loan, there shall be no outstanding\nsecurities, options, warrants, calls, stock appreciation rights, profit sharing\nplans, phantom stock awards, rights, commitments, agreements, arrangements or\nunderstandings of any kind, to which Newco is a party or by which it is bound,\nobligating Newco to issue, deliver or sell, or cause to be issued, delivered or\nsold, additional shares of capital stock or other voting securities of Newco,\nor obligating Newco to issue, grant, extend or enter into any such security,\noption, warrant, call, right, commitment, agreement, arrangement or undertaking\nor any agreements or instruments having a similar economic effect.\n\n     2.04.  GOVERNMENTAL AUTHORIZATION.  The execution, delivery and\n            --------------------------\nperformance by Seller of this Agreement require no action by, consent or\napproval of, or filing with, any Governmental Authority other than (a)\ncompliance with any applicable requirements of the Hart-Scott-Rodino Antitrust\nImprovements Act of 1976, as amended (the 'HSR Act') and federal and state\nsecurities laws or (b) any actions, consents, approvals or filings otherwise\nexpressly referred to in this Agreement.\n\n     2.05.  NO CONFLICT.  Except as disclosed on Schedule 3.04(c) to the Asset\n            -----------\nPurchase Agreement, the execution, delivery and performance by Seller of this\nAgreement and the consummation by Seller of the transactions contemplated\nherein will not, with or without the giving of notice or the lapse of time, or\nboth, violate, conflict with or constitute a default under (a) any provision of\nlaw, rule or regulation to which Seller is subject, (b) any order, judgment or\ndecree applicable to Seller, (c) any provision of the charter documents of\nSeller or (d) any indenture, agreement or other instrument by which Seller is\nbound.\n\n     2.06.  TITLE TO SHARES.\n            ---------------\n\n            (a)  As of the Closing, Seller will own and will have good and\nmarketable title to, and sole record and legal ownership of, the Securities,\nfree and clear of any and all liens, security interests, pledges, mortgages,\ncharges, limitations, claims, restrictions, rights of first refusal, rights of\nfirst offer, rights of first negotiation or other encumbrances of any kind or\nnature whatsoever (collectively, 'Encumbrances').\n\n            (b)  Upon consummation of the Closing, without exception, Purchaser\nwill acquire from Seller legal and beneficial ownership of, and good and\nmarketable title to the Securities to be sold to Purchaser by Seller, free and\nclear of all Encumbrances other than those provided for in the Securityholders\nAgreement (as defined below).\n\n     2.07.  ADVISORY FEES.  Except for Goldman, Sachs &amp; Co., PaineWebber\n            -------------\nIncorporated and Cybus Capital Markets, LLC, there is no investment banker,\nbroker, finder or other intermediary or financial advisor that has been\nretained by or is authorized to act on behalf of Seller who might be entitled\nto any fee, commission or reimbursement of expenses upon consummation of the\ntransactions contemplated by this Agreement.\n\n                                  ARTICLE III\n                  REPRESENTATIONS AND WARRANTIES OF PURCHASER\n\n     Purchaser represents and warrants to Seller as follows:\n\n     3.01.  ORGANIZATION; GOOD STANDING.  Purchaser is duly organized, validly\n            ---------------------------\nexisting and in good standing under the laws of the state of its incorporation\nor organization and has all requisite power and authority under such laws to\ncarry on its business as now conducted.\n\n     3.02.  POWER AND AUTHORITY; EFFECT OF AGREEMENT.  The purchase of the\n            ----------------------------------------\nSecurities to be acquired by Purchaser, the payment and delivery of the\nPurchase Price, the execution, delivery and performance by Purchaser of this\nAgreement and the consummation by  Purchaser of the transactions contemplated\nherein have been duly authorized by all necessary action on the part of\nPurchaser.  This Agreement has been duly and validly executed and delivered by\nPurchaser and constitutes a valid and binding obligation of Purchaser,\nenforceable against Purchaser in accordance with its terms, except to the\nextent that such enforceability may be limited by bankruptcy, insolvency,\nreorganization, moratorium or other similar laws relating to creditors' rights\ngenerally and is subject to general principles of equity.\n\n     3.03.  GOVERNMENTAL AUTHORIZATION.  The execution, delivery and\n            --------------------------\nperformance by Purchaser of this Agreement require no action by, consent or\napproval of, or filing with, any Governmental Authority or any other Person\nother than (i) compliance with any applicable requirements of the HSR Act and\nfederal and state securities laws or (ii) any actions, consents, approvals or\nfilings otherwise expressly referred to in this Agreement.\n\n     3.04.  NO CONFLICT.  The execution, delivery and performance by Purchaser\n            -----------\nof this Agreement and the consummation by Purchaser of the transactions\ncontemplated herein will not, with or without the giving of notice or the lapse\nof time, or both, violate, conflict with or constitute a default under (a) any\nprovision of law, rule or regulation to which Purchaser is subject, (b) any\norder, judgment or decree applicable to Purchaser, (c) any provision of the\ncharter documents of Purchaser or (d) any indenture, agreement or other\ninstrument by which Purchaser is bound.\n\n     3.05.  INVESTMENT REPRESENTATIONS.\n            --------------------------\n\n            (a)  The Securities to be acquired by Purchaser will be acquired by\nPurchaser for its own account, not as a nominee or agent, and not with a view\nto or in connection with the sale or distribution of any part thereof, other\nthan pursuant to a valid exemption from the registration requirements of the\nSecurities Act of 1933 (the 'Securities Act').\n\n            (b)  Purchaser understands that the Securities being purchased\nhereunder will not be registered under the Securities Act on the ground that\nthe sale of the Securities provided for in this Agreement is exempt from\nregistration under the Securities Act and that the reliance of Seller on such\nexemption is predicated in part on Purchaser's representations set forth in\nthis Agreement.\n\n            (c)  Purchaser acknowledges that it is able to fend for itself in\nthe transactions contemplated by this Agreement and has the ability to bear the\neconomic risks of its investment pursuant to this Agreement.\n\n            (d)  Purchaser understands that the Securities being purchased by\nPurchaser hereunder are restricted securities within the meaning of Rule 144\nunder the Securities Act and that the Securities are not registered and must be\nheld indefinitely unless they are subsequently registered or an exemption from\nsuch registration is available.\n\n     3.06.  TAX MATTERS.  Neither Purchaser nor any direct or indirect\n            -----------\ntransferee of the Securities shall at any time transfer cash or other property\nto Newco in amanner that would cause Purchaser or such transferee to be treated\nas having  transferred property to Newco for purposes of applying Section 351\nof the Internal Revenue Code of 1986, as amended, to the transactions con-\ntemplated hereby and by the Asset Purchase Agreement.\n\n     3.07.  ADVISORY FEES.  Except for Goldman, Sachs &amp; Co., PaineWebber\n            -------------\nIncorporated and Cybus Capital Markets LLC, there is no investment banker,\nbroker, finder or other intermediary or financial advisor that has been\nretained by or is authorized to act on behalf of Purchaser who might be\nentitled to any fee, commission or reimbursement of expenses upon\nconsummation of the transactions contemplated by this Agreement.\n\n                                   ARTICLE IV\n                            COVENANTS OF THE PARTIES\n\n     4.01.  COOPERATION; FURTHER ASSURANCES.  The parties hereto will use all\n            -------------------------------\ncommercially reasonable efforts, and will cooperate with each other, to secure\nall necessary consents, approvals, authorizations, exemptions and waivers from\nthird parties as shall be required in order to comply with Applicable Laws and\nto effectuate the transactions contemplated hereby, and will otherwise use all\nreasonable efforts to cause the consummation of such transactions in accordance\nwith the terms and conditions hereof.  At any time or from time to time after\nthe Closing, at the request of Seller or Purchaser, the parties shall execute\nand deliver any further instruments or documents and take all such further\naction as may be reasonably necessary in order to evidence or otherwise\nfacilitate the consummation of the transactions contemplated hereby.\n\n     4.02.  CERTAIN RIGHTS AND OBLIGATIONS OF THE PARTIES.\n            ---------------------------------------------\n\n            (a)  Seller hereby agrees that Purchaser is entitled to rely on the\nrepresentations and warranties made to Seller by Newco in Article IV of the\nAsset Purchase Agreement; and, that, in connection therewith, Purchaser, in its\ncapacity as purchaser of the Securities, shall have all of the rights and\nremedies that Seller shall have against Newco pursuant to Article IX of the\nAsset Purchase Agreement with respect to any breach of any representation or\nwarranty by Newco, and Purchaser shall be entitled to exercise Seller's rights\nand remedies against Newco.  In addition to the foregoing, Seller agrees and\nacknowledges that Purchaser shall have the right, on behalf of and for the\nbenefit of Newco, to enforce the obligations of Seller to Newco under the Asset\nPurchase Agreement on the terms and conditions set forth in this Section 4.02.\n\n            (b)  Seller agrees and acknowledges that Purchaser shall be\nentitled, on behalf of and for the benefit of Newco, (i) to enforce any and all\ncovenants and agreements of Seller contained in the Asset Purchase Agreement,\n(ii) from and after the Closing Date, to make any determination as to whether\nNewco should seek indemnification pursuant to Article IX of the Asset Purchase\nAgreement and, as appropriate, to direct Newco to pursue such indemnification\nand (iii) to make any and all other determinations on behalf of Newco with\nrespect to the rights (including rights pursuant to Sections 2.06, 2.07 and\n6.07 of the Asset Purchase Agreement) and remedies of Newco under the Asset\nPurchase Agreement.  Purchaser agrees to exercise their rights on behalf of and\nfor the benefit of Newco in good faith and in a commercially reasonable manner.\nFollowing the Closing, Seller shall cooperate with Purchaser as reasonably\nrequired in order to enable Purchaser to assert such rights on behalf of Newco.\n\n            (c)  Seller agrees that it shall not, without the prior written\nconsent of Purchaser, agree, cause to be made, or consent to any waiver,\namendment or modification of any of the terms of the Asset Purchase Agreement.\n\n            (d)  In the event that the Closing occurs, Purchaser will have no\ndirect rights, remedies or recourse against Seller for any breach of any\nrepresentation, warranty or covenant of Seller contained in the Asset Purchase\nAgreement, and Purchaser's sole remedy pursuant to this Section 4.02 and the\nAsset Purchase Agreement for such breach shall be its right to direct the\nactivities of Newco, on behalf of and for the benefit of Newco, in its pursuit\nof any claims or causes of action that it may have against Seller.\n\n            (e)  Purchaser agrees with Seller that it will cooperate with\nSeller and use its commercially reasonable efforts, prior to the consummation\nof the transactions contemplated in the Asset Purchase Agreement and this\nAgreement, to arrange for (i) the CMP Loan and (ii) a revolving working capital\ncredit facility for Newco pursuant to which Newco will have not less than\n$75,500,000 of borrowing capacity as of the Closing.\n\n     4.03.  CERTAIN FILINGS.  The parties hereto shall cooperate with one\n            ---------------\nanother in determining whether any action by or in respect of, or filing with,\nany Governmental Authority ('Required Governmental Approvals') is required or\nreasonably appropriate, or any action, consent, approval or waiver from any\nparty to any contract ('Required Contractual Consents') is required or\nreasonably appropriate, in connection with the consummation of the transactions\ncontemplated by this Agreement.  Subject to the terms and conditions of this\nAgreement, in taking such actions or making any such filings, the parties\nhereto shall furnish information required in connection therewith and seek\ntimely to obtain any such actions, consents, approvals or waivers.  Without\nlimiting the foregoing, the parties hereto shall each promptly complete and\nfile all reports and forms, and respond to all requests or further requests for\nadditional information, if any, as may be required or authorized under the HSR\nAct and federal and state securities laws.\n\n     4.04.  STOCKHOLDERS AGREEMENT AND REGISTRATION RIGHTS AGREEMENT.\n            --------------------------------------------------------\nSimultaneously with the Closing, the parties hereto shall execute a\nStockholders Agreement in substantially the form attached hereto as Exhibit B\nand a Registration Rights Agreement in substantially the form attached hereto\nas Exhibit C.\n\n     4.05.  CMP LOAN.  Simultaneously with the Closing, upon the funding of\n            --------\nthe CMP Loan, Newco will use the proceeds of such CMP Loan and other funds of\nNewco to repay, in full, the Newco Note issued to Seller pursuant to the Asset\nPurchase Agreement. \n\n     4.06.  EXECUTIVE STOCK PURCHASE AGREEMENTS.  Simultaneously with the\n            -----------------------------------\nClosing, Newco shall issue an aggregate of 100,000 shares of Newco Common Stock\nto certain executives of Newco at a purchase price of $1.00 per share pursuant\nto Executive Stock Purchase Agreements in form and substance satisfactory to\nSeller and Purchaser (the 'Executive Stock Purchase Agreements').\n\n     4.07.  CONFIDENTIALITY.\n            ---------------\n\n            (a)  The parties hereto will, and will cause their Affiliates and\nrepresentatives to, treat any data and information obtained with respect to any\nof the other parties hereto or any of their Affiliates from any representative,\nofficer, director or employee of any of the other parties hereto, or from any\nbooks or records of any of the other parties hereto in connection with this\nAgreement or the Asset Purchase Agreement, confidentially and with commercially\nreasonable care and discretion, and will not disclose any such information to\nthird parties; provided, however, that the foregoing shall not apply to\n(i) information in the public domain or that becomes public through disclosure\nby any party other than the party required by this Section 4.05 to treat the\ninformation as confidential, or its Affiliates or representatives, so long as\nsuch other party is not in breach of a confidentiality obligation,\n(ii) information required to be disclosed by Applicable Law, (iii) information\nrequired to be disclosed, on a confidential basis, whenever possible, to obtain\nany Required Governmental Approvals or Required Contractual Consents; or\n(iv) any information that is disclosed, on a confidential basis, whenever\npossible, to any actual or prospective lenders or investors in connection with\nfinancing the transactions contemplated by this Agreement or the Asset Purchase\nAgreement.\n\n            (b)  In the event that the Closing fails to take place and this\nAgreement is terminated, each party hereto, upon the written request of any\nother party hereto, will, and will cause its Affiliates and representatives to,\npromptly deliver to the requesting party any and all documents or other\nmaterials furnished by that party in connection with this Agreement or the\nAsset Purchase Agreement without retaining any copy thereof and without using\nany confidential information to solicit any customers of that party.  In the\nevent of such request, all other documents, whether analyses, compilations or\nstudies, that contain or otherwise reflect the information so furnished shall\nbe destroyed or shall be returned, and it shall be confirmed in writing that\nall such materials have been returned or destroyed.  No failure or delay by any\nparty hereto in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof\npreclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder.\n\n     4.06.  SPECIFIC PERFORMANCE.  The parties hereto recognize and agree that\n            --------------------\nin the event of a breach by any party hereto of Section 4.05, money damages\nwould not be an adequate remedy for such breach and, even if money damages were\nadequate, it would be impossible to ascertain or measure with any degree of\naccuracy the damages sustained therefrom.  Accordingly, if there should be a\nbreach or threatened breach by any party hereto of provisions of Section 4.05,\neach other party hereto shall be entitled without the requirement of posting a\nbond or other security to an injunction restraining any breach without showing\nor proving actual damage.  Nothing in the preceding sentence shall limit or\notherwise affect any remedies otherwise available under Applicable Law.\n\n                                   ARTICLE V\n                             CONDITIONS TO CLOSING\n\n     5.01.  CONDITIONS OF ALL PARTIES.\n            -------------------------\n\n            (a)  All Required Governmental Approvals for the transactions\ncontemplated by this Agreement shall have been obtained without the imposition\nof any conditions that would have a Material Adverse Effect.  All such Required\nGovernmental Approvals shall be in effect, and no actions, suits, hearings,\narbitrations or proceedings (public or private) (collectively, 'Proceedings')\nshall have been instituted or threatened by any Governmental Authority against\nSeller or Purchaser (or any of their Affiliates) with respect thereto as to\nwhich there is a material risk of a determination that would terminate the\neffectiveness of, or otherwise materially and adversely modify the terms of,\nany such Required Governmental Approval; all applicable waiting periods with\nrespect to such Required Governmental Approvals shall have expired; and all\nconditions and requirements prescribed by Applicable Law or by such Required\nGovernmental Approvals to be satisfied on or prior to the Closing shall have\nbeen satisfied allowing all such Required Governmental Approvals to be and to\nremain in full force and effect assuming continued compliance with the terms\nthereof after the Closing.\n\n            (b)  The Required Contractual Consents shall have been obtained\nwithout the imposition of any conditions that would have a Material Adverse\nEffect.  All such Required Contractual Consents shall be in full force and\neffect and no Proceeding shall have been instituted or threatened with respect\nthereto that would have a Material Adverse Effect.  All conditions and\nrequirements prescribed by any required Contractual Consent (or any such other\nconsent) to be satisfied on or prior to the Closing Date shall have been\nsatisfied in all material respects.\n\n            (c)  The transactions contemplated by this Agreement and the\nconsummation of the Closing shall not violate any Applicable Law.  No temporary\nrestraining order, preliminary or permanent injunction, cease and desist order\nor other order issued by any court of competent jurisdiction or any competent\nGovernmental Authority or any other legal restraint or prohibition preventing\nthe consummation of the transactions contemplated hereby shall be in effect,\nand there shall be no pending or threatened actions or proceedings by any\nGovernmental Authority (or determinations by any Governmental Authority) or by\nany other Person challenging or in any manner seeking to restrict or prohibit\nthe consummation of the transactions contemplated hereby.\n\n            (d)  Concurrently with the Closing, the parties shall have executed\na Stockholders Agreement and a Registration Rights Agreement substantially in\nthe forms attached hereto as Exhibit B and Exhibit C, respectively.\n\n            (e)  Concurrently with the Closing, CMP and Newco shall have\nexecuted the CMP Loan Agreement and CMP shall have funded the CMP Loan.\n\n            (f)  Concurrently with the Closing, Newco shall have entered into\nExecutive Stock Purchase Agreements with certain executives of Newco and Newco\nshall have issued an aggregate of 100,000 shares of Newco Common Stock to such\nexecutives pursuant thereto.\n\n            (g)  The parties to the Asset Purchase Agreement shall have\ncomplied in all material respects with each of their agreements and covenants\ncontained therein to be performed on or prior to the Closing Date.\n\n            (h)  The transactions contemplated under the Asset Purchase\nAgreement shall have been consummated.\n\n     5.02.  CONDITIONS TO THE OBLIGATIONS OF SELLER.  Seller's obligation to\n            ---------------------------------------\nsell the Shares shall be subject to the satisfaction or waiver of the following\nconditions on or prior to the Closing Date: \n\n            (a)  Purchaser shall have performed and satisfied in all material\nrespects its obligations hereunder required to be performed or satisfied by it\non or prior to the Closing Date.  Seller shall have received a certificate\nsigned by Purchaser to the foregoing effect.\n\n            (b)  The representations and warranties of Purchaser contained in\nthis Agreement shall be true, complete and accurate in all material respects at\nand as of the Closing Date, as if made at and as of the Closing Date.  Seller\nshall have received a certificate signed by Purchaser to the foregoing effect.\n  \n            (c)  Seller shall have acquired the Securities from Newco pursuant\nto the Asset Purchase Agreement.\n      \n\n            (d)  Concurrently with the Closing, Newco shall have repaid in full\nthe Newco Note issued to Seller pursuant to the Asset Purchase Agreement.\n\n            (e)  Concurrently with the Closing, Purchaser shall have delivered\nto Seller the Purchase Price in accordance with Article I hereof.\n\n     5.03.  CONDITIONS TO OBLIGATIONS OF PURCHASER.  The obligation of\n            --------------------------------------\nPurchaser to purchase the Securities shall be subject to the satisfaction or\nwaiver of the following conditions on or prior to the Closing Date:\n\n            (a)  Seller shall have performed and satisfied in all material\nrespects its obligations hereunder required to be performed or satisfied by it\non or prior to the Closing Date.  Purchaser shall have received a certificate\nsigned by a duly authorized executive officer of Seller to the foregoing effect\nand to the effect that, to the knowledge of such executive officer, the\nforegoing conditions have been satisfied.\n\n            (b)  The representations and warranties of Seller contained in this\nAgreement shall be true, complete and accurate in all material respects at and\nas of the Closing Date, as if made at and as of the Closing Date.  Purchaser\nshall have received a certificate signed by a duly authorized executive officer\nof Seller to the foregoing effect and to the effect that, to the knowledge of\nsuch executive officer, the foregoing condition has been satisfied.\n\n            (c)  Seller shall have delivered for sale to Purchaser on or prior\nto the Closing Date those certificates (and any necessary stock transfer\ninstruments) representing all Securities to be sold by Seller to Purchaser\npursuant to Article I hereof.\n\n            (d)  All actions taken by Newco with respect to the performance of\nits obligations, the enforcement or waiver of its rights under the Asset\nPurchase Agreement, including without limitation, the terms and conditions of\nall financing transactions entered into in connection with such transactions,\nshall be satisfactory to Purchaser.\n\n                                   ARTICLE VI\n                          TERMINATION PRIOR TO CLOSING\n\n     6.01.  TERMINATION.  This Agreement may be terminated at any time prior\n            -----------\nto the Closing:\n\n            (a)  By the mutual written consent of Seller and Purchaser; or\n\n            (b)  By either Seller or Purchaser by written notice if the closing\nof the transactions contemplated by the Asset Purchase Agreement has not been\nconsummated by March 31, 1999 (the 'Outside Date').\n\n     6.02.  EFFECT ON OBLIGATIONS.  Termination of this Agreement pursuant to\n            ---------------------\nthis Article VI shall terminate all rights and obligations of the parties\nhereunder other than those contained in Section 4.02 hereof and this Section\n6.02.  In the event that the Asset Purchase Agreement is terminated pursuant to\nSections 10.01(b) or (c) of the Asset Purchase Agreement, Seller agrees and\nacknowledges that Purchaser shall be entitled, in its own name and for its own\nbenefit, to pursue any and all claims, rights and causes of action of Newco\nagainst Seller.\n\n                                  ARTICLE VII\n                                 MISCELLANEOUS\n\n     7.01.  EXPENSES.\n            --------\n\n            (a)  Except as otherwise provided herein, Purchaser and Seller\nshall cause all costs, expenses, liabilities, taxes and other charges incurred\nby Purchaser and Seller in connection with this Agreement and the transactions\ncontemplated hereby to be paid by Newco, including the reasonable fees and\nexpenses of investment banks, attorneys and other advisors.\n\n            (b)  In the event that this Agreement is terminated and\/or the\ntransactions contemplated hereby are not consummated, Seller shall be\nresponsible for all of its expenses (including any fees and expenses of\ninvestment banks, attorneys and other advisors engaged by Seller) and Purchaser\nshall be responsible for its expenses (including any fees and expenses of\ninvestment banks, attorneys and other advisors engaged by Purchaser).\n\n      7.02.  NOTICES.  All notices, requests, demands, claims and other\n             -------\ncommunications hereunder shall be in writing.  Any notice, request, demand,\nclaim, or other communication hereunder shall be deemed duly given (i) if\npersonally delivered, when so delivered, (ii) if mailed, five Business Days\nafter having been sent by registered or certified mail, return receipt\nrequested, postage prepaid and addressed to the intended recipient as set forth\nbelow, (iii) if given by telex or telecopier, once such notice or other\ncommunication is transmitted to the telex or telecopier number specified below\nand the appropriate answer back or telephonic confirmation is received,\nprovided that such notice or other communication is promptly thereafter mailed\nin accordance with the provisions of clause (ii) above or (iv) if sent through\nan overnight delivery service in circumstances to which such service guarantees\nnext day delivery, the day following being so sent:\n\n          If to Seller:\n          ------------\n\n               Alexander &amp; Baldwin, Inc.\n               333 Market Street, 30th Floor\n               San Francisco, CA  94105\n               Attention: Chief Financial Officer\n               Telecopier:  (415) 546-9630\n          \n          with copies to:\n          --------------\n\n               Alexander &amp; Baldwin, Inc.\n               Post Office Box 3440\n               Honolulu, HI  96801\n               Attention: General Counsel\n               Telecopier: (808) 525-6678\n\n               Bradford P. Weirick, Esq.\n               Gibson, Dunn &amp; Crutcher LLP\n               333 S. Grand Avenue\n               Los Angeles, CA  90071\n               Telecopier:  (213) 229-7520\n\n          If to Purchaser:\n          ---------------\n\n               David Howe\n               Citicorp Venture Capital, Ltd.\n               399 Park Avenue\n               New York, NY  10043\n               Telecopier:  (212) 888-2940\n\n          with a copy to:\n          --------------\n\n               Kirk Radke, Esq.\n               Kirkland &amp; Ellis\n               Citicorp Center\n               153 East 53rd Street\n               New York, NY  10022\n               Telecopier:  (212) 446-4900\n\n     Any party may give any notice, request, demand, claim or other\ncommunication hereunder using any other means (including ordinary mail or\nelectronic mail), but no such notice, request, demand, claim or other\ncommunication shall be deemed to have been duly given unless and until it\nactually is received by the individual for whom it is intended.  Any party may\nchange the address to which notices, requests, demands, claims and other\ncommunications hereunder are to be delivered by giving the other parties notice\nin the manner herein set forth.\n\n     7.03.  GOVERNING LAW.  This Agreement shall be construed in accordance\n            -------------\nwith and governed by the internal laws (without reference to choice or conflict\nof laws) of the State of California.\n\n     7.04.  ENTIRE AGREEMENT.  This Agreement constitutes the entire agreement\n            ----------------\nbetween the parties with respect to the subject matter hereof and supersedes\nall prior agreements (including the Letter of Intent, dated May 5, 1998),\nunderstandings and negotiations, both written and oral, between the parties\nwith respect to the subject matter of this Agreement.  Neither this Agreement\nnor any provision hereof is intended to confer upon any Person other than the\nparties hereto any rights or remedies hereunder.\n\n     7.05.  COUNTERPARTS; EFFECTIVENESS.  This Agreement may be signed in any\nnumber of counterparts, each of which shall be an original, with the same\neffect as if the signatures thereto and hereto were upon the same instrument.\nThis Agreement shall become effective when each party hereto shall have\nreceived a counterpart hereof signed by the other parties hereto.\n\n     7.06.  AMENDMENTS; NO WAIVERS.\n            ----------------------\n\n            (a)  Any provision of this Agreement may be amended or waived if,\nand only if, such amendment or waiver is in writing and signed, in the case\nof an amendment, by all parties hereto, or in the case of a waiver, by the\nparty against whom the waiver is to be effective.\n\n            (b)  No waiver by a party of any default, misrepresentation or\nbreach of warranty or covenant hereunder, whether intentional or not, shall be\ndeemed to extend to any prior or subsequent default, misrepresentation or\nbreach of warranty or covenant hereunder or affect in any way any rights\narising by virtue of any prior or subsequent occurrence.  No failure or delay\nby a party in exercising any right, power or privilege hereunder shall operate\nas a waiver thereof nor shall any single or partial exercise thereof preclude\nany other or further exercise thereof or the exercise of any other right, power\nor privilege.  The rights and remedies herein provided shall be cumulative and\nnot exclusive of any rights or remedies provided by law.\n\n     7.07.  SEVERABILITY.  If any provision of this Agreement, or the\n            ------------\napplication thereof to any Person, place or circumstance, shall be held by a\ncourt of competent jurisdiction to be invalid, unenforceable or void, the\nremainder of this Agreement and such provisions as applied to other Persons,\nplaces and circumstances shall remain in full force and effect only if, after\nexcluding the portion deemed to be unenforceable, the remaining terms shall\nprovide for the consummation of the transactions contemplated hereby in\nsubstantially the same manner as originally set forth at the later of the date\nthis Agreement was executed or last amended.\n\n     7.08.  CAPTIONS.  The captions herein are included for convenience of\n            --------\nreference only and shall be ignored in the construction or interpretation\nhereof.  All referencesto an Article or Section include all subparts thereof. \n\n     7.09.  SUCCESSORS AND ASSIGNS.  This Agreement shall be binding upon and\n            ----------------------\ninure to the benefit of the parties hereto and their respective successors and\npermitted assigns.  No party hereto may assign either this Agreement or any of\nits rights, interests or obligations hereunder without the prior written\napproval of each other party, which approval shall not be unreasonably\nwithheld.\n\n     7.10.  RESTRICTIVE LEGEND.  The certificates representing the Securities\n            ------------------\nwill bear the following legends giving notice of restrictions on transfer as\nfollows:\n\n     THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE\n     SECURITIES ACT OF 1933, AS AMENDED (THE 'ACT'), OR UNDER THE\n     SECURITIES LAWS OF CERTAIN STATES.  THESE SECURITIES ARE SUBJECT TO\n     RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED\n     OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE\n     SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.\n     INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE\n     FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.\n     THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN\n     FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE ISSUER TO THE EFFECT\n     THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND\n     ANY APPLICABLE STATE SECURITIES LAWS.\n\n     IN WITNESS WHEREOF, Seller and Purchaser have caused this Agreement to be\nexecuted and delivered by the undersigned duly authorized officers as of the\nday and year first above written.\n\n                              CALIFORNIA AND HAWAIIAN SUGAR COMPANY, INC., A\n                              HAWAII CORPORATION\n\n                              By: \/s\/ David G. Koncelik\n                                  ---------------------\n                              Name:  David G. Koncelik\n                              Title:  President and Chief Executive Officer\n\n                              CITICORP VENTURE CAPITAL, LTD.,\n                              A NEW YORK CORPORATION\n                              By: \/s\/ David Howe\n                                  --------------\n                              Name:  David Howe\n                              Title:  Vice President\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6618,7104],"corporate_contracts_industries":[9415,9526],"corporate_contracts_types":[9622,9627],"class_list":["post-43728","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-alexander---baldwin-inc","corporate_contracts_companies-citigroup-inc","corporate_contracts_industries-financial__banks","corporate_contracts_industries-transportation__shipping","corporate_contracts_types-planning","corporate_contracts_types-planning__purchase"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43728","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43728"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43728"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43728"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43728"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}