-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PvrrOIti7tZCg0BZDSvALJfmMnXr1A+dGI2gJ/1bqRF3ZJQwDnWiGWlhlr0JFsOO YGiQQGVUsGyAsh5TU+bQ9g== 0000912057-01-540187.txt : 20020411 0000912057-01-540187.hdr.sgml : 20020411 ACCESSION NUMBER: 0000912057-01-540187 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20011116 GROUP MEMBERS: MARC J. LEDER GROUP MEMBERS: RODGER R. KROUSE GROUP MEMBERS: SUN CAPITAL ADVISORS II,LP GROUP MEMBERS: SUN CAPITAL PARTNERS,LLC GROUP MEMBERS: SUN NORTHLAND,LLC SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: NORTHLAND CRANBERRIES INC /WI/ CENTRAL INDEX KEY: 0000818010 STANDARD INDUSTRIAL CLASSIFICATION: AGRICULTURE PRODUCTION - CROPS [0100] IRS NUMBER: 391583759 STATE OF INCORPORATION: WI FISCAL YEAR END: 0831 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-44235 FILM NUMBER: 1793972 BUSINESS ADDRESS: STREET 1: 800 FIRST AVE SO STREET 2: P O BOX 8020 CITY: WISCONSIN RAPIDS STATE: WI ZIP: 54494 BUSINESS PHONE: 7154244444 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: SUN CAPITAL PARTNERS II LP CENTRAL INDEX KEY: 0001129733 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 364367879 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 5200 TOWN CENTER CIRCLE STREET 2: SUITE 470 CITY: BOCA RATON STATE: FL ZIP: 33486 BUSINESS PHONE: 5619623405 MAIL ADDRESS: STREET 1: 5200 TOWN CENTER CIRCLE STREET 2: SUITE 470 CITY: BOCA RATON STATE: FL ZIP: 33486 SC 13D 1 a2063964zsc13d.txt SC 13D SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. ___) Northland Cranberries, Inc. -------------------------------------------------------------------- (Name of Issuer) Class A Common Stock, par value $.01 per share -------------------------------------------------------------------- (Title of Class of Securities) 666499207 -------------------------------------------------------------------- (CUSIP Number) Marc J. Leder Douglas C. Gessner, Esq. Rodger R. Krouse James S. Rowe, Esq. Sun Capital Partners, LLC Kirkland & Ellis 5200 Town Center Circle, Suite 470 200 East Randolph Drive Boca Raton, Florida 33486 Chicago, Illinois (561) 394-0550 (312) 861-2000 -------------------------------------------------------------------- (Name, Address and Telephone Number of Persons Authorized to Receive Notices and Communications) November 6, 2001 -------------------------------------------------------------------- (Date of Event which Requires Filing of This Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box / /. Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 (the "ACT") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act. Page 1 of 18 Pages CUSIP No. 666499207 13D Page 2 of 18 Pages - ------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS / I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Sun Northland, LLC - ------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) /X/ - ------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* AF - ------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) / / - ------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - ------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 86,463,807 (See Item 5) ---------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY 0 ---------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING 78,844,820 (See Item 5) ---------------------------------------- PERSON 10 SHARED DISPOSITIVE POWER WITH 0 - ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 86,463,807 (See Item 5) - ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / - ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 94.4% - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* PN - ------------------------------------------------------------------------------- *SEE INSTRUCTIONS CUSIP No. 666499207 13D Page 3 of 18 Pages - ------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS / I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Sun Capital Partners II, LP - ------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) /X/ - ------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* WC - ------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) / / - ------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - ------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 0 ---------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY 86,463,807 (See Item 5) ---------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING 0 ---------------------------------------- PERSON 10 SHARED DISPOSITIVE POWER WITH 78,844,820 (See Item 5) - ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 86,463,807 (See Item 5) - ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / - ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 94.4% - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* PN - ------------------------------------------------------------------------------- *SEE INSTRUCTIONS CUSIP No. 666499207 13D Page 4 of 18 Pages - ------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS / I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Sun Capital Advisors II, LP - ------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) /X/ - ------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* - ------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) / / - ------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - ------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 0 ---------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY 86,463,807 (See Item 5) ---------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING 0 ---------------------------------------- PERSON 10 SHARED DISPOSITIVE POWER WITH 78,844,820 (See Item 5) - ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 86,463,807 (See Item 5) - ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / - ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 94.4% - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* PN - ------------------------------------------------------------------------------- *SEE INSTRUCTIONS CUSIP No. 666499207 13D Page 5 of 18 Pages - ------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS / I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Sun Capital Partners, LLC - ------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) /X/ - ------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* - ------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) / / - ------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - ------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 0 ---------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY 86,463,807 (See Item 5) ---------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING 0 ---------------------------------------- PERSON 10 SHARED DISPOSITIVE POWER WITH 78,844,820 (See Item 5) - ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 86,463,807 (See Item 5) - ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / - ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 94.4% - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* PN - ------------------------------------------------------------------------------- *SEE INSTRUCTIONS CUSIP No. 666499207 13D Page 6 of 18 Pages - ------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS / I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Marc J. Leder - ------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) /X/ - ------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* - ------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) / / - ------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States - ------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 0 ---------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY 86,463,807 (See Item 5) ---------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING 0 ---------------------------------------- PERSON 10 SHARED DISPOSITIVE POWER WITH 78,844,820 (See Item 5) - ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 86,463,807 (See Item 5) - ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / - ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 94.4% - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* IN - ------------------------------------------------------------------------------- *SEE INSTRUCTIONS CUSIP No. 666499207 13D Page 7 of 18 Pages - ------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS / I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Rodger R. Krouse - ------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) /X/ - ------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* - ------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) / / - ------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States - ------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 0 ---------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY 86,463,807 (See Item 5) ---------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING 0 ---------------------------------------- PERSON 10 SHARED DISPOSITIVE POWER WITH 78,844,820 (See Item 5) - ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 86,463,807 (See Item 5) - ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / - ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 94.4% - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* IN - ------------------------------------------------------------------------------- *SEE INSTRUCTIONS ITEM 1. SECURITY AND ISSUER. The title of the class of equity security to which this statement relates is the Class A Common Stock, par value $.01 per share (the "COMMON STOCK"), of Northland Cranberries, Inc., a Wisconsin corporation (the "ISSUER"). The name and address of the principal executive offices of the Issuer are: Northland Cranberries, Inc. 800 First Avenue South Wisconsin Rapids, Wisconsin 54495-8020 ITEM 2. IDENTITY AND BACKGROUND. This statement is being jointly filed by each of the following persons pursuant to Rule 13d-1(k) promulgated by the Securities and Exchange Commission (the "COMMISSION") pursuant to Section 13 of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"): Sun Northland, LLC, a Delaware limited liability company ("SUN NORTHLAND"), Sun Capital Partners II, LP, a Delaware limited partnership ("SUN PARTNERS LP"), Sun Capital Advisors II, LP, a Delaware limited partnership ("SUN ADVISORS"), Sun Capital Partners, LLC, a Delaware limited liability company ("SUN PARTNERS LLC"), Marc J. Leder ("LEDER") and Rodger R. Krouse ("KROUSE"). Leder and Krouse may each be deemed to control Sun Northland, Sun Partners LP, Sun Advisors and Sun Partners LLC, as Leder and Krouse each own 50% of the membership interests in Sun Partners LLC, which in turn is the general and managing partner of Sun Advisors, which in turn is the general and managing partner of Sun Partners LP, which in turn owns a majority of the membership interests of Sun Northland. Sun Northland, Sun Partners LP, Sun Advisors, Sun Partners LLC, Leder and Krouse are collectively referred to as the "Reporting Persons." The principal business address of each of the Reporting Persons is 5200 Town Center Circle, Suite 470, Boca Raton, Florida 33486. Sun Northland, Sun Partners LP, Sun Advisors and Sun Partners LLC are each principally engaged in making investments. Leder and Krouse are principally engaged in merchant banking and the acquisition and operation of middle market companies. During the past five years, none of the Reporting Persons and, to the knowledge of the Reporting Persons, none of the executive officers or directors of the Reporting Persons, if applicable, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors), or has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Page 8 of 18 Pages Certain information with respect to the executive officers and directors of the Reporting Persons, if applicable, is set forth on SCHEDULE A attached hereto. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. On November 6, 2001, Sun Northland and the Issuer entered into a Stock Purchase Agreement (the "PURCHASE AGREEMENT"), pursuant to which Sun Northland purchased (i) 37,122,695 shares of Common Stock, (ii) 1,668,885 shares of the Issuer's Series A Preferred Stock, par value $.01 per share (the "SERIES A PREFERRED"), and (iii) 100 shares of the Issuer's Series B Preferred Stock, par value $.01 per share (the "SERIES B PREFERRED"). Each share of Series A Preferred will be automatically converted into 25 shares of Common Stock upon the effectiveness of an amendment to the Issuer's articles of incorporation increasing the number of authorized shares of Common Stock. Sun Northland currently intends to cause the Issuer to promptly submit the amendment to the Issuer's stockholders for approval, and Sun Northland expects the amendment to become effective promptly thereafter. The shares of Common Stock issued to Sun Northland, including the shares to be received by Sun Northland upon conversion of the Series A Preferred, constitute approximately 86.1% of the Issuer's outstanding Common Stock, assuming conversion of the Series A Preferred. The aggregate purchase price for the Common Stock, Series A Preferred and Series B Preferred purchased by Sun Northland pursuant to the Purchase Agreement was (i) $7,000,000 in cash and (ii) the assignment of Sun Northland's rights to certain Assignment, Assumption and Release Agreements, which resulted in the cancellation of approximately $86.8 million of the Issuer's outstanding indebtedness. All of the shares of Common Stock beneficially owned by the Reporting Persons, together with the other securities of the Issuer described above, were paid for using funds from the partners of one of the Reporting Persons. In connection with the transaction pursuant to which the Reporting Persons acquired securities of the Issuer, certain shareholders and warrant holders of the Issuer granted the Reporting Persons proxies to vote any shares owned by such holders. All share numbers reported in this statement give effect to a one-for-four reverse stock split of the Common Stock effected on November 5, 2001. The information set forth in Item 4 below is hereby incorporated herein by reference. Page 9 of 18 Pages ITEM 4. PURPOSE OF TRANSACTION. The purpose of the transaction was to acquire economic and voting control of the Issuer. As a result of the transaction, the Reporting Persons acquired Common Stock and Series A Preferred constituting 86.1% of the Issuer's outstanding Common Stock, assuming conversion of the Series A Preferred into Common Stock. A copy of the Purchase Agreement is attached as EXHIBIT B and incorporated herein by reference. In connection with the transaction and in accordance with the terms of the Purchase Agreement, five representatives of the Reporting Persons, including Leder and Krouse, were appointed to the Issuer's board of directors, which currently consists of six members. The other member of the Issuer's board is the Issuer's chairman and chief executive officer. The Reporting Persons intend to have open communications with the Issuer's management in order to monitor management's efforts to increase shareholder value. In connection with that effort, an affiliate of one of the Reporting Persons has entered into a Management Services Agreement whereby such person will provide various administrative and management services to the Issuer in exchange for a quarterly payment of the greater of $100,000 or 6% of the Issuer's EBITDA (as defined in the Management Services Agreement) for the second immediately preceding quarter, with an annual maximum of $1,000,000 unless approved by a majority of the members of the Issuer's board of directors who are not affiliates of the Reporting Persons. As a result of the transaction, the Common Stock will no longer be quoted on the Nasdaq National Market. As of the date of this Statement, the Common Stock trades on the over-the-counter bulletin board under the symbol "NRCNA." Depending on various factors including, without limitation, the Issuer's business, financial position and prospects, the price levels of the shares of Common Stock, conditions in the securities markets and general economic and industry conditions, the Reporting Persons may in the future take such actions with respect to their investment in the Issuer as they deem appropriate including, without limitation, (i) purchasing additional shares of Common Stock in the open market or otherwise, (ii) making an offer to purchase up to all of the Issuer's outstanding shares of Common Stock, through a negotiated transaction or otherwise, (iii) causing the Common Stock to be deregistered through a squeeze out merger transaction or otherwise, or (iv) presenting proposals for consideration at annual or special meetings of the Issuer's stockholders. The Reporting Persons may also sell some or all of their shares of Common Stock through registered public offerings or privately negotiated transactions, and may change their intentions with respect to any and all of the matters referred to in this Item 4. Page 10 of 18 Pages Pursuant to the terms of a Stockholders' Agreement dated as of November 6, 2001 (the "STOCKHOLDERS AGREEMENT") by and among the Issuer, Sun Northland and certain minority stockholders of the Issuer identified therein (the "MINORITY STOCKHOLDERS"), each Minority Stockholder has agreed to vote its shares of Common Stock in the manner specified by Sun Northland with respect to all matters submitted to a vote of stockholders. The Minority Stockholders have also agreed not to transfer any shares of Common Stock (other than certain exempt transfers to affiliates or family members, to Sun Northland or the other Minority Stockholders, or in registered offerings) without first providing a right of first refusal to the Issuer and, if the Issuer does not exercise that right, to Sun Northland. Sun Northland has agreed not to transfer any shares of Common Stock without providing "tag along" rights to the Minority Stockholders, and the Minority Stockholders have granted "drag along" rights to Sun Northland in connection with any sale of a majority of the fully diluted equity of the Issuer. Finally, the Issuer has granted, subject to certain exceptions, preemptive rights to the Minority Stockholders in connection with any proposed issuance of equity securities to Sun Northland in order to permit the Minority Stockholders to maintain their percentage equity ownership in the Issuer. The Stockholders Agreement will terminate at such time as both (i) the Reporting Persons or their affiliates no longer own or control at least 50% of the Common Stock on a fully diluted basis and (ii) the Reporting Persons or their affiliates no longer control the Issuer's board of directors. The preceding summary of terms of the Stockholders Agreement is qualified in its entirety by reference to the detailed provisions of the Stockholders Agreement, a copy of which is attached as EXHIBIT C and incorporated herein by reference. Pursuant to the terms of a Registration Agreement dated as of November 6, 2001 (the "REGISTRATION AGREEMENT") by and among the Issuer, Sun Northland and the Minority Stockholders, the holders of a majority of the shares of Common Stock issued to Sun Northland may at any time request, subject to certain limitations, up to four "demand" registrations on Form S-1 and an unlimited number of demand registrations on Form S-2 or S-3. The Issuer has also agreed to provide, subject to certain limitations, customary "piggy back" registration rights to the holders of the shares issued to Sun Northland and the Minority Stockholders. The Issuer has generally agreed to bear all registration expenses in connection with the exercise of these registration rights, other than underwriting discounts and commissions. The preceding summary of terms of the Registration Agreement is qualified in its entirety by reference to the detailed provisions of the Registration Agreement, a copy of which is attached as EXHIBIT D and incorporated herein by reference. Prior to the execution of the Purchase Agreement and the consummation of the transactions contemplated therein, the Issuer's then-constituted board of directors (which did not include any of the Reporting Persons or their representatives) resolved by unanimous written consent to amend the Issuer's articles of incorporation such that action required or permitted by the Wisconsin Business Corporation Law to be taken at a shareholders' meeting may be taken without a meeting if a written consent or consents, describing the action so taken, is or are signed by shareholders who would be entitled to vote at a meeting those shares with voting power to cast not less than the minimum Page 11 of 18 Pages number or, in the case of voting by voting groups, numbers of votes that would be necessary to authorize or take the action at a meeting at which all shares entitled to vote were present and voted. Sun Northland currently intends to cause the Issuer to submit promptly the amendment to the Issuer's articles of incorporation to the Issuer's stockholders for approval, and Sun Northland expects the amendment to become effective promptly thereafter. Sun Northland has agreed to transfer all 100 shares of the Issuer's Series B Preferred that it acquired pursuant to the terms of the Purchase Agreement to an affiliate of John Swendrowski, the Issuer's chief executive officer, by November 16, 2001, in exchange for $10. Except as set forth in the preceding paragraphs, as of the date hereof, the Reporting Persons do not have any plan or proposal that relates to or would result in: (a) The acquisition by any person of additional securities of the Issuer, or the disposition of securities of the Issuer; (b) An extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Issuer or any of its subsidiaries; (c) A sale or transfer of a material amount of assets of the Issuer or any of its subsidiaries; (d) Any change in the present board of directors or management of the Issuer, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the board; (e) Any material change in the present capitalization or dividend policy of the Issuer; (f) Any other material change in the Issuer's business or corporate structure; (g) Changes in the Issuer's charter, bylaws or instruments corresponding thereto or other actions which may impede the acquisition of control of the Issuer by any person; (h) Causing a class of securities of the Issuer to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (i) A class of equity securities of the Issuer becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Act; or Page 12 of 18 Pages (j) Any action similar to any of those enumerated above. Notwithstanding the foregoing, the Reporting Persons reserve the right to effect any such actions as any of them may deem necessary or appropriate in the future. The information set forth in Item 3 above is hereby incorporated herein by reference. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. (a) As of the date hereof, each of the Reporting Persons may be deemed to be the beneficial owner, within the meaning of Rule 13d-3 of the Exchange Act, of 86,463,807 shares of Common Stock, or 86.1% of the shares of Common Stock, consisting of 44,741,682 shares of the outstanding Common Stock and 41,722,125 shares of Common Stock to be received upon conversion of the Series A Preferred. The 86,463,807 shares of Common Stock that may be deemed to be beneficially owned by the Reporting Persons includes 7,618,987 shares held by the Minority Stockholders that may be voted by the Reporting Persons pursuant to the terms of the Stockholders Agreement. In addition to the 86,463,807 shares of Common Stock that may be deemed to be beneficially owned by the Reporting Persons, each of the Reporting Persons may have the right, pursuant to the Stockholders Agreement, to vote an additional 5,086,106 shares of Common Stock that may be acquired by Foothill Capital Corporation and Ableco Holding LLC upon their exercise of outstanding warrants to purchase Common Stock, all of which are currently exercisable. (b) Sun Northland has the sole power to vote or direct the vote of 86,463,807 shares of Common Stock, and the sole power to dispose or direct the disposition of 78,844,820 shares of Common Stock (assuming in each case the conversion of the Series A Preferred into shares of Common Stock). Each Reporting Person other than Sun Northland may be deemed to have shared power to vote or direct the vote of 86,463,807 shares of Common Stock, and shared power to dispose or direct the disposition of 78,844,820 shares of Common Stock (assuming in each case the conversion of the Series A Preferred into shares of Common Stock). The Reporting Persons and the Minority Stockholders may be deemed to constitute a "group" for purposes of Section 13(d)(3) of the Exchange Act as a result of the voting and transfer provisions contained in the Stockholders Agreement and the registration provisions contained in the Registration Agreement. The Reporting Persons expressly disclaim that they have agreed to act as a group with the Minority Stockholders. The table below lists the names of each of the Minority Stockholders Page 13 of 18 Pages and the number of shares beneficially owned by each Minority Stockholder in which the Reporting Persons may be deemed to have beneficial ownership because of the Stockholders Agreement and the Registration Agreement. -------------------------------------------------------------- Number of Shares Name of Minority Stockholder Beneficially Owned -------------------------------------------------------------- St. Francis Bank, F.S.B. 844,294 -------------------------------------------------------------- ARK CLO 2000-1 Limited 2,115,820 -------------------------------------------------------------- U.S. Bank National Association 4,658,873 -------------------------------------------------------------- Foothill Capital Corporation 0 (1) -------------------------------------------------------------- Ableco Holding LLC 0 (1) -------------------------------------------------------------- (1) Does not include 2,543,053 shares of Common Stock that may be acquired by each of Foothill Capital Corporation and Ableco Holding LLC (5,086,106 shares in the aggregate) upon their exercise of outstanding warrants to purchase Common Stock, all of which are currently exercisable. (c) Except for the transactions described herein, there have been no other transactions in the securities of the Issuer effected by the Reporting Persons in the last 60 days. (d) Except as stated within this Item 5, to the knowledge of the Reporting Persons, only the Reporting Persons have the right to receive or the power to direct the receipt of dividends from, or proceeds from the sale of, the shares of Common Stock of the Issuer reported by this statement. (e) Inapplicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. Except for the agreements described above in response to Items 3 and 4, which are hereby incorporated herein by reference, to the best knowledge of the Reporting Persons, there are no contracts, arrangements, understandings or relationships (legal or otherwise) between the persons enumerated in Item 2 above, and any other person, with respect to any securities of the Issuer, including, but not limited to, transfer or voting of any of the securities, finder's fees, joint ventures, loan or option agreements, puts or calls, guarantees of profits, divisions of profits or loss, or the giving or withholding of proxies. Page 14 of 18 Pages ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. Schedule A Additional Information Required by Item 2 of Schedule 13D Exhibit A Joint Filing Agreement, dated November 15, 2001, by and among each of the Reporting Persons Exhibit B Purchase Agreement Exhibit C Stockholders Agreement Exhibit D Registration Agreement Page 15 of 18 Pages SIGNATURES After reasonable inquiry and to the best of each of the undersigned's knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct. SUN NORTHLAND, LLC Date: November 15, 2001 By: /s/ Marc J. Leder ------------------------------------ Name: Marc J. Leder Title: Co-CEO SUN CAPITAL PARTNERS II, LP By: Sun Capital Advisors II, LP Its: General Partner By: Sun Capital Partners, LLC Its: General Partner Date: November 15, 2001 By: /s/ Marc J. Leder ------------------------------------ Name: Marc J. Leder Title: Co-CEO SUN CAPITAL ADVISORS II, LP By: Sun Capital Partners, LLC Its: General Partner Date: November 15, 2001 By: /s/ Marc J. Leder ------------------------------------ Name: Marc J. Leder Title: Co-CEO SUN CAPITAL PARTNERS, LLC Date: November 15, 2001 By: /s/ Marc J. Leder ------------------------------------ Name: Marc J. Leder Title: Co-CEO Page 16 of 18 Pages Date: November 15, 2001 /s/ Marc J. Leder ------------------------------------ Marc J. Leder Date: November 15, 2001 /s/ Rodger R. Krouse ------------------------------------ Rodger R. Krouse Page 17 of 18 Pages SCHEDULE A SUN NORTHLAND, LLC Set forth below is the name and business address of each manager of Sun Northland. Each such person is a citizen of the United States of America.
Name Title Address - ----------------------------------------------------------------------------- Marc J. Leder Co-CEO 5200 Town Center Circle, Suite 470 Boca Raton, Florida 33486 Rodger R. Krouse Co-CEO 5200 Town Center Circle, Suite 470 Boca Raton, Florida 33486
SUN CAPITAL PARTNERS, LLC Set forth below is the name and business address of each manager of Sun Partners LLC. Each such person is a citizen of the United States of America.
Name Title Address - ----------------------------------------------------------------------------- Marc J. Leder Co-CEO 5200 Town Center Circle, Suite 470 Boca Raton, Florida 33486 Rodger R. Krouse Co-CEO 5200 Town Center Circle, Suite 470 Boca Raton, Florida 33486
Page 18 of 18 Pages EX-99.A 3 a2063964zex-99_a.txt JOINT FILING DTD 11/15/2001 EXHIBIT A SCHEDULE 13D JOINT FILING AGREEMENT Each of the undersigned hereby agrees to file jointly the statement on Schedule 13D to which this Agreement is attached (including any amendments thereto). It is understood and agreed that each of the parties hereto is responsible for the timely filing of such statement and any amendments thereto, and for the completeness and accuracy of information concerning such party contained therein, but such party is not responsible for the completeness and accuracy of information concerning any other party unless such party knows or has reason to believe that such information is inaccurate. It is understood and agreed that a copy of this Agreement shall be attached as an exhibit to the statements on Schedule 13D, and any amendments thereto, filed on behalf of the parties hereto. * * * * * IN WITNESS WHEREOF, the undersigned have caused this Schedule 13D Joint Filing Agreement to be duly executed as of the date(s) set forth below. SUN NORTHLAND, LLC Date: November 15, 2001 By: /s/ Marc J. Leder ----------------------------------- Name: Marc J. Leder Title: Co-CEO SUN CAPITAL PARTNERS II, LP By: Sun Capital Advisors II, LP Its: General Partner By: Sun Capital Partners, LLC Its: General Partner Date: November 15, 2001 By: /s/ Marc J. Leder ----------------------------------- Name: Marc J. Leder Title: Co-CEO SUN CAPITAL ADVISORS II, LP By: Sun Capital Partners, LLC Its: General Partner Date: November 15, 2001 By: /s/ Marc J. Leder ----------------------------------- Name: Marc J. Leder Title: Co-CEO SUN CAPITAL PARTNERS, LLC Date: November 15, 2001 By: /s/ Marc J. Leder ----------------------------------- Name: Marc J. Leder Title: Co-CEO Date: November 15, 2001 /s/ Marc J. Leder -------------------------------------- Marc J. Leder Date: November 15, 2001 /s/ Rodger R. Krouse -------------------------------------- Rodger R. Krouse EX-99.B 4 a2063964zex-99_b.txt STOCKHOLDERS AGREE STOCKHOLDERS' AGREEMENT THIS STOCKHOLDERS' AGREEMENT (this "AGREEMENT") is made as of November 6, 2001, by and among (i) Sun Northland, LLC, a Delaware limited liability company ("SUN"), (ii) each of the Persons whose name appears on the signature page hereto or who otherwise hereafter becomes a party to this Agreement (the "MINORITY STOCKHOLDERS"), and (iii) Northland Cranberries, Inc., a Wisconsin corporation (the "COMPANY"). Certain other capitalized terms used herein are defined in SECTION 1. NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement hereby agree as follows: 1. CERTAIN DEFINITIONS. The terms defined in this SECTION 1, whenever used in this Agreement, shall, unless the context clearly otherwise requires, have the following respective meanings: "AFFILIATE" of a Person shall mean any other Person, directly or indirectly controlling, controlled by or under common control with such Person. "APPLICABLE PERCENTAGE" shall have the meaning set forth herein in SECTION 3.1(C). "BANK GROUP" shall mean U.S. Bank National Association, ARK CLO 2000-1 Limited, and St. Francis Bank, F.S.B. "COMMON STOCK" shall mean the Class A Common Stock, $0.01 par value per share, of the Company as constituted on the date hereof and any stock into which any such common stock shall have been changed or any stock resulting from any reclassification of any such common stock. "COMMON STOCK EQUIVALENTS" shall mean Common Stock and any securities convertible or exchangeable for shares of Common Stock. "COMPANY" shall have the meaning set forth in the preamble of this Agreement. "EXEMPT TRANSFER", as applied to any Stockholder, shall mean (a) any sale or Transfer permitted by the Registration Agreement, (b) any Permitted Affiliate Sale, (c) in the case of an individual, any Transfer to a member of the Family of such Stockholder, if such individual agrees to be bound by the terms of this Agreement and executes a joinder hereto, or (d) any Transfer to another Stockholder. "FAMILY", as applied to any individual, shall mean (a) the children of such individual (by birth or adoption), (b) the parents, spouse and siblings of such individual, (c) the children of such siblings, (d) any trust solely for the benefit of, or any partnership, limited liability company or other entity owned solely by, any one or more of such aforementioned individuals (so long as such individual has the exclusive right to control such trust or other entity) and (e) the estate of such individual. "FINANCING AGREEMENT" shall mean the Loan and Security Agreement, dated as of November 6, 2001, by and among the Company, Foothill Capital Corporation (as arranger and administrative agent) and the lenders that are signatories thereto, as amended from time to time. "MINORITY SHARES" shall mean shares of the Company's Common Stock owned or controlled by the Minority Stockholders. "MINORITY STOCKHOLDERS" shall have the meaning set forth in the preamble. "NOTICE OF TRANSFER" shall have the meaning set forth herein in SECTION 3.1(b). "OUTSIDE OFFER" shall have the meaning set forth herein in SECTION 2.2(a). "PERMITTED AFFILIATE SALE" shall mean any sale by a holder of Common Stock to any one or more of its Affiliates or a fund or account managed by a holder of Common Stock or an Affiliate of such holder, if such Person agrees to be bound by the terms of this Agreement to the same extent as the transferor and executes a joinder hereto. "PERSON" shall mean an individual, a corporation, a limited liability company, an association, a joint-stock company, a business trust or other similar organization, a partnership, a joint venture, a trust, an unincorporated organization or a government or any agency, instrumentality or political subdivision thereof. "PROSPECTIVE PURCHASER" shall have the meaning set forth herein in SECTION 2.2(a). "REGISTRATION AGREEMENT" shall mean that certain Registration Agreement, dated November 6, 2001, by and between the Company, Sun, and the other Persons listed on the signature page thereto. "RIGHTS" shall have the meaning set forth in SECTION 4(a). "SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or any successor federal statute, and the rules and regulations promulgated thereunder, all as amended, modified or supplemented from time to time. "SELLING STOCKHOLDER" shall have the meaning set forth in SECTION 2.2(a). "SERIES A PREFERRED STOCK" shall mean the Company's Series A Preferred Stock, par value $.01 per share. "STOCKHOLDER" shall mean Sun, the Minority Stockholders and each other Person who shall acquire any shares of Common Stock from the Company or the Minority Stockholders and their respective heirs, executors, successors and assigns in accordance with the terms and conditions of this Agreement. "TRANSFER" shall mean any sale, pledge, gift, assignment or other transfer. 2 "UNREGISTERED COMMON STOCK" shall mean any share of Common Stock which has not been registered under the Securities Act on Form S-1 or any similar long-form registration or on Form S-2 or S-3 or any similar short-form registration. "WARRANTS" shall mean the Common Stock Purchase Warrants (as amended, modified and supplemented from time to time) issued pursuant to the Financing Agreement; and "WARRANT" means any one of the foregoing Warrants. 2. RESTRICTION ON TRANSFER OF COMMON STOCK BY MINORITY STOCKHOLDERS. 2.1 GENERAL. The Minority Stockholders shall not Transfer any shares of Common Stock or Warrants and the Company shall not register the Transfer of, or otherwise permit the Transfer of, any shares of Common Stock or Warrants by any Minority Stockholders (except in connection with an Exempt Transfer) unless (a) such Transfer has been consummated in accordance with the terms hereof and (b) the new holder thereof shall first have become a party to this Agreement and shall have agreed in writing to be bound by all of the terms and conditions hereof applicable to the Minority Stockholders. Any Transfer of Common Stock or Warrants by any Minority Stockholder which is not consummated in accordance with this Agreement shall be void. Sun shall not Transfer any shares of its Common Stock Equivalents and the Company shall not register the Transfer of, or otherwise permit the Transfer of, any shares of Common Stock Equivalents by Sun unless such Transfer is an Exempt Transfer, is pursuant to SECTION 3.1 or SECTION 3.2, or is otherwise in accordance with the terms hereof. Any Transfer of Common Stock Equivalents by Sun which is not consummated in accordance with this Agreement shall be void. 2.2 LIMITED RIGHT TO DISPOSE OF INTEREST. (a) BONA FIDE OFFER TO PURCHASE INTEREST. Except in connection with an Exempt Transfer, if any Minority Stockholders (or any of his, her or its transferees) shall at any time desire to Transfer all or any part of his, her or its shares of Unregistered Common Stock or Warrants, as permitted under the terms of this Agreement, such Person (the "SELLING STOCKHOLDER") shall first obtain a bona fide written offer which such Selling Stockholder desires to accept (the "OUTSIDE OFFER") to purchase all or any portion of such Selling Stockholder's Unregistered Common Stock or Warrants for a fixed cash price payable in full at the closing of such transaction. The Outside Offer shall set forth its date, the proposed purchase price, the number of shares of Unregistered Common Stock or Warrants proposed to be purchased, and the other terms and conditions upon which the purchase is proposed to be made, as well as the name and address of the Prospective Purchaser. "PROSPECTIVE PURCHASER", as used herein, shall mean the prospective record owner or owners of the shares of Unregistered Common Stock or Warrants which are the subject of the Outside Offer and all other Persons proposed to have a beneficial interest in such Unregistered Common Stock or Warrants. The Selling Stockholder shall transmit copies of the Outside Offer to the Company and Sun within five (5) days after the Selling Stockholder's receipt of the Outside Offer. (b) OPTION OF COMPANY AND SUN. (i) As a result of the foregoing transmittal of the Outside Offer, the Selling Stockholder shall be deemed to have offered in writing to sell all, but not less than all, of 3 such Selling Stockholder's Unregistered Common Stock or Warrants to the Company which are proposed to be purchased in the Outside Offer at the price and upon the terms set forth in the Outside Offer. For a period of twenty (20) days after such deemed offer by the Selling Stockholder to the Company, the Company shall have the option, exercisable by written notice to the Selling Stockholder, to accept the Selling Stockholder's offer, in whole and not in part, as to the Selling Stockholder's Unregistered Common Stock or Warrants. (ii) If the Company does not exercise its option set forth in the preceding SECTION 2.2(b)(i), the Selling Stockholder shall be deemed to have offered in writing to sell all, but not less than all, of such Selling Stockholder's Unregistered Common Stock or Warrants to Sun which are proposed to be sold in the Outside Offer at the price and upon the terms set forth in the Outside Offer. For a period of ten (10) days after such deemed offer by the Selling Stockholder to Sun, Sun shall have the option, exercisable by written notice to the Selling Stockholder, to accept the Selling Stockholder's offer, in whole and not in part, as to the Selling Stockholder's Unregistered Common Stock or Warrants. (c) ACCEPTANCE OF THE BONA FIDE OFFER. If, at the end of the option periods described in SECTION 2.2(b) hereof, the option has not been exercised either by the Company or Sun to purchase all of the Selling Stockholder's Unregistered Common Stock or Warrants proposed to be purchased in the Outside Offer, the Selling Stockholder shall be free for a period of sixty (60) days thereafter to Transfer up to the number of shares of his, her or its Unregistered Common Stock or Warrants proposed to be purchased in the Outside Offer to the Prospective Purchaser at the price and upon the terms and conditions set forth in the Outside Offer, provided that the Prospective Purchaser is not a Person that, directly or indirectly (whether as sole proprietor, partner, manager, consultant, director, officer, employee or agent), owns, manages, operates, controls, finances, engages or participates in the ownership, management, operation or control of any Person that competes with the Company. If such Unregistered Common Stock or Warrants is not so transferred within the sixty (60) day period, the Selling Stockholder shall not be permitted to sell such Unregistered Common Stock or Warrants without again complying with this SECTION 2.2. (d) Notwithstanding anything contained in this Agreement to the contrary, the restrictions on the Transfer of Unregistered Common Stock or Warrants set forth in this SECTION 2.2 shall not apply to Sun or any of its Affiliates. 3. TAG-ALONG RIGHTS; DRAG-ALONG RIGHTS. 3.1. TAG-ALONG RIGHTS. Subject to SECTION 3.1(f): (a) If Sun at any time proposes to Transfer any shares of Common Stock Equivalents, then, as a condition precedent thereto, Sun shall afford the Minority Stockholders the right to participate in such Transfer in accordance with this SECTION 3.1. (b) If Sun wishes to Transfer any shares of Common Stock Equivalents, it shall give written notice to the Minority Stockholders (a "NOTICE OF TRANSFER") not less than twenty (20) nor more than thirty (30) days prior to any proposed Transfer of any such shares. Each such Notice of Transfer shall: 4 (i) specify in reasonable detail (A) the number of shares of Common Stock Equivalents which Sun proposes to Transfer, (B) the identity of the proposed transferee or transferees of such shares, (C) the time within which, the price per share at which, and all other terms and conditions upon which, Sun proposes to Transfer such shares of Common Stock Equivalents, and (D) the percentage of the Common Stock Equivalents then owned by Sun (calculated on a fully-diluted basis) which Sun proposes to Transfer to such proposed transferee or transferees and (E) a representation that such proposed transferees have been informed of the tag-along rights provided for in this SECTION 3.1 and have agreed to purchase shares of Common Stock Equivalents in accordance with the terms hereof; (ii) make explicit reference to this SECTION 3.1 and state that the right of the Minority Stockholders to participate in such Transfer under this SECTION 3.1 shall expire unless exercised within twenty (20) days after receipt of such Notice of Transfer; and (iii) contain an irrevocable offer by Sun to the Minority Stockholders to participate in the proposed Transfer to the extent provided in SECTION 3.1(c). (c) Each Minority Stockholder shall have the right to participate in the proposed Transfer by transferring to the proposed transferee or transferees up to that number of shares of Common Stock owned by such Minority Stockholders which is equal to the Applicable Percentage (as hereinafter defined) (or, if such Minority Stockholders shall elect, any lesser percentage) of the shares of Common Stock Equivalents proposed to be transferred by Sun, at the same price per share and on the same terms and conditions as are applicable to the proposed Transfer by Sun (and, if and to the extent such Minority Stockholders shall exercise such right, then the number of shares of Common Stock Equivalents to be sold by Sun in such transaction shall be correspondingly reduced). As used herein, the term "APPLICABLE PERCENTAGE" as applied to a Minority Stockholder on any date shall mean a fraction (expressed as a percentage), the numerator of which is the aggregate of the number of shares of Common Stock owned by such Minority Stockholder on such date and the denominator of which is total number of shares of Common Stock Equivalents (assuming exercise of all Warrants) owned by Sun and the Minority Stockholders on such date. (d) A Minority Stockholders must notify Sun, within twenty (20) days after receipt of the Notice of Transfer, if he, she or it desires to accept such offer and to Transfer any shares of Common Stock owned by such Person in accordance with this SECTION 3.1. The failure of a Minority Stockholder to provide such notice within such 20-day period shall, for the purposes of this SECTION 3.1, be deemed to constitute a waiver by such Person of his, her or its right to sell any of his, her or its shares of Common Stock in connection with the proposed Transfer described in such Notice of Transfer. Sun will use its commercially reasonable efforts to obtain the agreement of the prospective transferee or transferees to the participation of the Minority Stockholders in such proposed Transfer, and Sun shall not Transfer any of its shares to such prospective transferee if such transferee shall not agree to the participation of the Minority Stockholders in such proposed Transfer. The Minority Stockholders shall not be obligated to sell any shares of Common Stock pursuant to this SECTION 3.1. Any and all sales of Common Stock by any of the Minority Stockholders pursuant to this SECTION 3.1 shall be made either concurrently with or prior to the sale of Common Stock Equivalents by Sun. 5 (e) If the Transfer described in any Notice of Transfer is not consummated within ninety (90) days following the date upon which such Notice of Transfer is given or if there is any change in the terms pursuant to which such Transfer is to be consummated, then, prior to consummating such Transfer, Sun must again comply with the provisions of this SECTION 3.1. (f) Notwithstanding anything to the contrary contained in this SECTION 3.1, the Minority Stockholders shall not have any rights pursuant to this SECTION 3.1 to participate in any Exempt Transfer by Sun. 3.2 DRAG-ALONG RIGHTS. (a) If at any time following the date hereof, Sun shall enter into an agreement to sell a majority of the Common Stock Equivalents of the Company to any Person or group of Persons who are not affiliated with Sun, then Sun may require that the Minority Stockholders sell the same percentage of their Common Stock Equivalents to such transferee or transferees as the percentage of Common Stock then owned by Sun which Sun proposes to Transfer to such proposed transferee or transferees at the same price per share and on the same terms and conditions as are applicable to the proposed sale by Sun. (b) In order to exercise the rights under SECTION 3.2(a), Sun must give notice to the Minority Stockholders not less than 10-days prior to the proposed date upon which the contemplated sale is to be effected. In addition, Sun shall furnish to the Minority Stockholders all such agreements, documents and instruments to be executed in connection with such transaction and shall afford the Minority Stockholders a reasonable period of time (but in any event not less than 5 business days) within which to review such agreements, documents and instruments. 4. PREEMPTIVE RIGHTS. (a) NOTICE AND EXERCISE. The Company shall, prior to any proposed issuance by the Company to Sun or its Affiliates of any shares of capital stock or securities representing the right to acquire shares of capital stock ("RIGHTS") (other than debt securities with no equity feature), offer to the Minority Stockholders by written notice the right, for a period of 20-days from the date on which such notice is postmarked, hand delivered or faxed, to purchase for cash at an amount equal to the price or other consideration for which such capital stock or Rights are to be issued, a number of such shares of capital stock or Rights so that, after giving effect to such issuance (and the conversion, exercise and exchange into or for (whether directly or indirectly) shares of capital stock of all Rights), each such Minority Stockholder will continue to maintain his, her or its same percentage equity ownership (assuming the exercise in full of all Warrants) in the Company represented by the shares of Common Stock owned by each such Minority Stockholder as of the date of such notice. (b) EXCEPTIONS. Notwithstanding any other provision of this Agreement to the contrary, the preemptive rights of the Minority Stockholders pursuant to this SECTION 4 shall not apply to securities issued (A) upon conversion or exchange of any of the shares of the Company's Series A Preferred Stock to Common Stock, (B) upon exercise of any of the Warrants, (C) as a stock dividend or upon any subdivision of shares of Common Stock, 6 (D) pursuant to subscriptions, warrants, options, convertible securities, or other rights, issued, or to be issued, under any stock incentive plan approved by the Company's Board of Directors and in place from time to time for the benefit of the Company's directors, employees, consultants or independent contractors or (E) to any Person other than Sun or its Affiliates. (c) ACCEPTANCE. The Company's written notice to the Minority Stockholders shall describe the capital stock or Rights proposed to be issued by the Company to Sun or its Affiliates and specify the number of shares, price and payment terms. Each Minority Stockholder may accept the Company's offer as to the full number of shares of capital stock or Rights offered to him, her or it or any lesser number, by written notice thereof given by him, her or it to the Company prior to the expiration of the aforesaid 20-day period, in which event the Company shall promptly sell and each Minority Stockholder shall buy, upon the terms specified, the number of shares of capital stock or Rights agreed to be purchased by such Person. The Company shall be free at any time prior to ninety (90) days after the date of its notice of offer to the Minority Stockholders, to offer and sell to Sun or its Affiliates or any third party or parties the remainder of such capital stock or Rights proposed to be issued by the Company (including but not limited to the securities not agreed by the Minority Stockholders to be purchased by them), at a price and on payment terms no less favorable to the Company than those specified in such notice of offer to the Minority Stockholders. However, if such third party sale or sales are not consummated within such ninety (90) day period, the Company shall not sell such capital stock or Rights as shall not have been purchased within such period without again complying with this SECTION 4. 5. VOTING. (a) Each Minority Stockholders agrees to vote the shares of Common Stock owned or controlled by it, him or her in the manner specified by Sun with respect to: (i) any sale of all or substantially all of the assets of the Company or any of its subsidiaries to a Person not an Affiliate of Sun; (ii) any acquisition, merger or consolidation involving the Company or any of its subsidiaries in which a Person (or group of Persons acting in concert) not an Affiliate (or Affiliates) of Sun shall own in excess of 50% of the surviving corporation of such acquisition, merger or consolidation; (iii) any transaction to which SECTION 3.1 or SECTION 3.2 applies; (iv) the election of the members of the Company's board of directors; and (v) any other matter on which the stockholders of a Wisconsin corporation generally have a right to vote. (b) Each Minority Stockholders hereby grant to Sun an irrevocable proxy to vote all shares of Common Stock now or hereafter owned or controlled by each of them in accordance with the agreements contained in this SECTION 5. 6. LEGENDS. So long as any shares of Common Stock are subject to the provisions of this Agreement, all certificates or instruments representing such securities (including the Warrants) shall bear a legend in substantially the following form: THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO THE TERMS OF THE STOCKHOLDERS' AGREEMENT DATED AS OF NOVEMBER 6, 2001 AMONG THE ISSUER HEREOF AND CERTAIN OTHER PERSONS, A TRUE AND 7 CORRECT COPY OF WHICH IS ON FILE AT THE ISSUER'S CHIEF EXECUTIVE OFFICE AND, UPON WRITTEN REQUEST TO THE ISSUER, A COPY THEREOF WILL BE MAILED OR OTHERWISE PROVIDED WITHOUT CHARGE WITHIN TEN (10) DAYS OF RECEIPT OF SUCH REQUEST TO APPROPRIATELY INTERESTED PERSONS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION TO THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS. 7. TERMINATION OF THIS AGREEMENT. This Agreement shall terminate on the last to occur of (a) the date on which Sun and its Affiliates no longer owns or controls at least 50% of the Common Stock on a fully diluted basis and (b) the date on which Sun and its Affiliates no longer controls the Company's Board of Directors. 8. NOTICES. All communications provided for herein shall be in writing and sent (a) by facsimile if the sender on the same day sends a confirming copy of such communication by a recognized overnight delivery service (charges prepaid), (b) by a recognized overnight delivery service (charges prepaid), or (c) by messenger. The respective addresses of the parties hereto for the purposes of this Agreement are set forth on EXHIBIT A attached hereto. Any party may change its address (or facsimile number) by notice to each of the other parties in accordance with this SECTION 8. The date of giving or making of any such communication shall be, in the case of clauses (a) and (c), the date of the receipt; and, in the case of clause (b), the business day next following the date such communication is sent. 9. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective heirs, executors, successors and assigns, who, upon acceptance thereof, shall, without further action, be (i) entitled to enforce the applicable provisions and enjoy the applicable benefits hereof and (ii) bound by the terms and conditions hereof. 10. AMENDMENT AND WAIVER. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless such modification, amendment, or waiver is approved in writing by the Company, each member of the Bank Group, Sun, and the holders of at least a majority of the Minority Stockholders; provided that execution of a joinder hereto shall not be considered a modification, amendment or waiver of any of the provisions of this Agreement. The failure of any party to enforce any of the provisions of this Agreement will in no way be construed as a waiver of such provisions and will 8 not affect the right of such party thereafter to enforce each and every provision of this Agreement in accordance with its terms. 11. REMEDIES. Any Person having rights under any provision of this Agreement shall be entitled to enforce their rights under this Agreement specifically to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights existing in their favor; PROVIDED, however the parties hereto stipulate that the remedies at law of any party hereto in the event of any default or threatened default by any other party hereto in the performance of or compliance with the terms hereof are not and will not be adequate and that, to the fullest extent permitted by law, such terms may be specifically enforced (without posting a bond or other security) by a decree for the specific performance thereof, whether by an injunction against violation thereof or otherwise. 12. GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Wisconsin without giving effect to any choice or conflict of law provision or rule (whether of the State of Wisconsin or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Wisconsin. Each party hereto submits to the jurisdiction of any state or federal court sitting in Milwaukee, Wisconsin, in any action or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and determined in any such court. Each party also agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court. Each party hereto waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety, or other security that might be required of any other party with respect thereto. Any party may make service on any other party by sending or delivering a copy of the process to the party to be served at the address and in the manner provided for the giving of notices in SECTION 8 above. Nothing in this SECTION 12, however, shall affect the right of any party to bring any action or proceeding arising out of or relating to this Agreement in any other court or to serve legal process in any other manner permitted by law or at equity. Each party agrees that a final judgment in any action or proceeding so brought shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by law or at equity. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY SUIT, ACTION OR OTHER PROCEEDING INSTITUTED BY OR AGAINST SUCH PARTY IN RESPECT OF ITS, HIS OR HER OBLIGATIONS HEREUNDER OR THE TRANSACTIONS CONTEMPLATED HEREBY. 13. SEVERABILITY. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provision had never been contained herein. 14. ENTIRE AGREEMENT. Except as otherwise expressly set forth herein, this Agreement, those documents expressly referred to herein, and the other documents of even date herewith embody the complete agreement and understanding among the parties and supersede and 9 preempt any prior understandings, agreements, or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way. 15. COUNTERPARTS. This Agreement may be executed in separate counterparts each of which will be an original and all of which taken together shall constitute one and the same agreement. 16. DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement. 17. MANDATORY CONVERSION. The Company agrees to take all actions reasonably necessary, including increasing the number of authorized shares of Common Stock, to convert the Series A Preferred Stock to Common Stock, as soon as reasonably practicable after execution of this Agreement. Sun agrees to vote its Common Stock Equivalents in favor of such increase in the authorized number of shares of Common Stock. 18. SALE OF SECURITIES TO AFFILIATE. Prior to any proposed issuance by the Company of any Common Stock Equivalents to any Affiliate of Sun, the Company shall require that such Affiliate agree to be bound by the terms of this Agreement to the same extent as Sun and execute a joinder hereto. [The remainder of this page is left blank intentionally.] 10 IN WITNESS WHEREOF, the parties hereto have executed this Stockholders' Agreement on the day and year first above written. NORTHLAND CRANBERRIES, INC. By: /s/ John Swendrowski ------------------------- Name: John Swendrowski Title: Chief Executive Officer SUN NORTHLAND, LLC By: /s/ M. Steven Liff --------------------------- Name: M. Steven Liff Title: Vice President FOOTHILL CAPITAL CORPORATION By: /s/ Phyliss Hasen ---------------------- Name: Phyliss Hasen Title: Vice President ST. FRANCIS BANK, F.S.B. By: /s/ John C. Tans ------------------- Name: John C. Tans Title: Vice President ARK CLO 2000-1 LIMITED By: Patriarch Partners, LLC Its Collateral Manager By: /s/ Lynn Tilton ----------------------- Name: Lynn Tilton Title: Authorized Signatory [Continuation of Stockholders' Agreement Signature Page] U.S. BANK NATIONAL ASSOCIATION By: /s/ Stephen A. Tornio ------------------------ Name: Stephen A. Tornio Title: Vice President Ableco Holding LLC By: /s/ Kevin P. Genda ------------------------ Name: Kevin P. Genda Title: Attorney-in-Fact EXHIBIT A ADDRESSES FOR NOTICES (a) If to the Company, to it at: Northland Cranberries, Inc. 800 First Avenue South P.O. Box 8020 Wisconsin Rapids, WI 54495 Attention: Chief Executive Officer Telecopy No.:(715) 422-6844 WITH A COPY TO: Sun Capital Advisors II, L. P. 5200 Town Center Circle, Suite 470 Boca Raton, Florida 33486 Attention: Marc J. Leder Rodger R. Krouse C. Deryl Couch, Esq. Telecopy No.: (561) 394-0540 (b) If to Sun Northland, LLC, to it at: c/o Sun Capital Advisors II, L. P. 5200 Town Center Circle, Suite 470 Boca Raton, Florida 33486 Attention: Marc J. Leder Rodger R. Krouse C. Deryl Couch, Esq. Telecopy No.: (561) 394-0540 WITH A COPY TO: Kirkland & Ellis 200 East Randolph Drive Chicago, Illinois 60601 Attention: Douglas C. Gessner Telecopy No.: (312) 861-2200 EXHIBIT A (CONTINUED) (c) If to Minority Stockholders, to them at: Foothill Capital Corporation 2450 Colorado Avenue Suite 3000 West Santa Monica, California 90404 Attn: Business Finance Division Manager Telecopy No.:________________ WITH A COPY TO: Otterbourg, Steindler, Houston & Rosen, P.C. 230 Park Avenue New York, New York 10169 Attn: Mitchell M. Brand, Esq. Telecopy No.: (212) 682-6104 Ableco Holding LLC 450 Park Avenue, 28th Floor New York, New York 10022 Attn: Eric F. Miller Telecopy No.: (212) 758-5305 WITH A COPY TO: Schulte Roth & Zabel, LLP 919 Third Avenue New York, New York 10022 Attn: Frederic L. Ragucci, Esq. Telecopy No.: (212) 593-5955 St. Francis Bank, F.S.B. 13400 Bishops Lane, Suite 190 Brookfield, WI 53005-6203 Attn: John Tans Telecopy No.: (262) 787-8778 EXHIBIT A (CONTINUED) ARK CLO 2000-1 Limited c/o Patriarch Partners, LLC 40 Wall Street, 25th Floor New York, NY 10005 Attn: Dennis Dolan/Lynn Tilton Telecopy No.: (561) 279-0888 ARK CLO 2000-1 Limited c/o Woodside Capital 36 Bay State Road Cambridge, MA 02138 Attn: David Ray Telecopy No.: (617) 547-5162 U.S. Bank National Association MPFP2516 601 Second Avenue South Minneapolis, MN 55402-4302 Attn: Stephen Tornio Telecopy No.: (612) 973-2148 EX-99.C 5 a2063964zex-99_c.txt STOCK PURCHASE AGREE EXECUTION DRAFT STOCK PURCHASE AGREEMENT BY AND AMONG SUN NORTHLAND, LLC AND NORTHLAND CRANBERRIES, INC. Dated as of November 6, 2001 TABLE OF CONTENTS
PAGE ---- 1. DEFINITIONS.................................................................................................1 2. PURCHASE AND SALE OF SHARES.................................................................................7 (a) Basic Transaction........................................................................................7 (b) Consideration............................................................................................7 (c) The Closing..............................................................................................7 (d) Deliveries at the Closing................................................................................7 3. REPRESENTATIONS AND WARRANTIES OF THE BUYER.................................................................8 (a) Organization of the Buyer................................................................................8 (b) Authorization of Transaction.............................................................................8 (c) Noncontravention.........................................................................................8 (d) Brokers' Fees............................................................................................8 (e) Investment...............................................................................................8 4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY...............................................................8 (a) Organization, Qualification, and Corporate Power.........................................................9 (b) Capitalization and Issuance of Shares....................................................................9 (c) Noncontravention........................................................................................10 (d) Brokers' Fees...........................................................................................10 (e) Title to Assets.........................................................................................10 (f) Subsidiaries............................................................................................10 (g) Financial Statements....................................................................................11 (h) Events Subsequent to Most Recent Fiscal Year End........................................................11 (i) Undisclosed Liabilities.................................................................................13 (j) Legal Compliance........................................................................................13 (k) Tax Matters.............................................................................................14 (l) Real Property...........................................................................................15 (m) Intellectual Property...................................................................................18 (n) Tangible Assets.........................................................................................19 (o) Contracts...............................................................................................20 (p) Notes and Accounts Receivable...........................................................................21 (q) Powers of Attorney......................................................................................21 (r) Insurance...............................................................................................21 (s) Litigation..............................................................................................22 (t) Employees...............................................................................................22 (u) Employee Benefits.......................................................................................23 (v) Guaranties..............................................................................................25 (w) Environment, Health, and Safety Matters.................................................................25 (x) Certain Business Relationships With the Company and its Subsidiaries....................................26 (y) SEC Documents...........................................................................................26 (z) Relationships with Customers and Vendors................................................................27 i 5. CONDITIONS TO OBLIGATION TO CLOSE..........................................................................28 (a) Conditions to Obligation of the Buyer...................................................................28 (b) Conditions to Obligation of the Company.................................................................31 6. REMEDIES FOR BREACHES OF THIS AGREEMENT....................................................................32 (a) Survival of Representations and Warranties..............................................................32 (b) Indemnification Provisions for Benefit of the Buyer.....................................................33 (c) Determination of Adverse Consequences...................................................................33 (d) Matters Involving Third Parties.........................................................................33 (e) Additional Matters......................................................................................34 7. TAX MATTERS................................................................................................34 8. MISCELLANEOUS..............................................................................................34 (a) Press Releases and Public Announcements.................................................................34 (b) No Third-Party Beneficiaries............................................................................34 (c) Entire Agreement........................................................................................35 (d) Succession and Assignment...............................................................................35 (e) Counterparts............................................................................................35 (f) Headings................................................................................................35 (g) Notices.................................................................................................35 (h) Governing Law...........................................................................................36 (i) Amendments and Waivers..................................................................................36 (j) Severability............................................................................................36 (k) Expenses................................................................................................36 (l) Construction............................................................................................37 (m) Incorporation of Exhibits, Annexes, and Schedules.......................................................37 (n) Submission to Jurisdiction..............................................................................37 (o) Legal Fees..............................................................................................37 (p) Indemnification and Insurance...........................................................................37 (q) ISRA Covenant...........................................................................................38 (r) Tax Covenant............................................................................................38 (s) Severance Pay Covenant..................................................................................39 EXHIBIT A - HISTORICAL FINANCIAL STATEMENTS EXHIBIT B - FORM OF OPINION OF COUNSEL TO THE COMPANY EXHIBIT C - FORM OF STOCKHOLDERS' AGREEMENT EXHIBIT D - FORM OF REGISTRATION AGREEMENT EXHIBIT E - AGREEMENTS TO BE ENTERED INTO WITH VENDORS, SUPPLIERS AND OTHER CREDITORS EXHIBIT F - STAY BONUS AND MANAGEMENT AGREEMENT PAYOUT SCHEDULE
ii STOCK PURCHASE AGREEMENT This Stock Purchase Agreement is entered into as of November 6, 2001, by and among Sun Northland, LLC, a Delaware limited liability company (the "BUYER"), and Northland Cranberries, Inc., a Wisconsin corporation (the "COMPANY"). The Buyer and the Company are referred to collectively herein as the "PARTIES" and individually as a "PARTY". WHEREAS, the Buyer has entered into Assignment, Assumption and Release Agreements with the Current Senior Lenders pursuant to which the Buyer or its assignee will, at the Closing, acquire a portion of the Current Senior Lenders' rights pursuant to the Firstar Facility upon payment to the Current Senior Lenders of an aggregate of $38,388,000 in cash, the issuance to the Current Senior Lenders of new notes in the aggregate amount of $25,714,000, and the issuance to the Current Senior Lenders of Class A Common Stock, par value $0.01 per share "CLASS A COMMON STOCK") representing an aggregate of 7.49% of the Company's Class A Common Stock; WHEREAS, the Company desires to issue and sell, and the Buyer desires to purchase, in exchange for cash and the assignment of the Buyer's rights in the Assignment, Assumption and Release Agreements (which will result in the cancellation of at least $$86.8 million of the Company's indebtedness), 37,122,695.00 shares of the Company's Class A Common Stock, 1,668,885.00 shares of the Company's Series A Preferred Stock, par value $.01 per share ("SERIES A PREFERRED STOCK") (which shall be convertible into 41,722,125.00 shares of the Company's Class A Common Stock) and 100 shares of the Company's Series B Preferred Stock, par value $0.01 per share ("Series B Preferred Stock"), upon the terms and subject to the conditions contained in this Agreement; Now, therefore, in consideration of the premises and the mutual promises herein made, and in consideration of the representations, warranties, and covenants herein contained, the Parties agree as follows. 1. DEFINITIONS "ADVERSE CONSEQUENCES" means all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs, reasonable amounts paid in settlement, liabilities, obligations, Taxes, liens, losses, expenses, and fees, including court costs and reasonable attorneys' fees and expenses. "AFFILIATE" means a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, another Person. "AFFILIATED GROUP" means any affiliated group within the meaning of Code Section 1504(a) or any similar group defined under a similar provision of state, local, or foreign law. "ASSIGNMENT, ASSUMPTION AND RELEASE AGREEMENTS" means (i) that certain Assignment, Assumption, and Release Agreement, dated as of the date hereof, by and among the Buyer, LaSalle Bank National Association, St. Francis Bank, F.S.B., ARK CLO 2000-1 Limited, and U.S. Bank National Association; and (ii) that certain Assignment, Assumption, and Release Agreement, dated as of the date hereof, by and among the Buyer, Wells Fargo, Bank Minnesota, National Association, Endeavour, LLC, Bank One Wisconsin and M&I Marshall & Ilsley Bank. "BASIS" means any past or present fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act, or transaction that forms or could reasonably be expected to form the basis for any specified consequence. "BOG PROPERTIES" means those portions of the Owned Real Property and Leased Real Property enumerated under the heading "Bog Properties" in SECTIONS 4(l)(i) and 4(l)(ii) of the Disclosure Schedule. "BUYER" has the meaning set forth in the preface above. "CAPITAL STOCK" means stock, units, interests, securities, or other instruments which (i) share in distributions either of earnings or assets or (ii) have the right to vote for directors, officers or managers. "CASH PURCHASE PRICE" has the meaning set forth in SECTION 2(b)(i) below. "CLASS A COMMON STOCK" has the meaning in the preface above. "CLASS B COMMON STOCK" has the meaning in SECTION 4(b) below. "CLOSING" has the meaning set forth in SECTION 2(c) below. "CLOSING DATE" has the meaning set forth in SECTION 2(c) below. "COBRA" means the requirements of Part 6 of Subtitle B of Title I of ERISA and Code Section 4980B and of any similar state law. "CODE" means the Internal Revenue Code of 1986, as amended. "COMMISSION" or "SEC" means the Securities and Exchange Commission, or any successor agency. "COMPANY" has the meaning set forth in the preface above. "CURRENT SENIOR LENDERS" means LaSalle Bank National Association, St. Francis Bank, F.S.B., ARK CLO 2000-1 Limited, U.S. Bank National Association, Wells Fargo, Bank Minnesota, National Association, Endeavour, LLC, Bank One Wisconsin, and M&I Marshall & Ilsley Bank. "DISCLOSURE SCHEDULE" has the meaning set forth in SECTION 4 below. "EMPLOYEE BENEFIT PLAN" means any "employee benefit plan" (including, without limitations, "plans" as defined in ERISA Section 3(3)), profit sharing, deferred compensation, bonus, stock option, stock purchase, vacation pay, holiday pay, pension, retirement plans, medical and any other form of compensation or benefit plan, program or arrangement of any kind regardless 2 of whether any such plan is written or oral or provided under an employment, collective bargaining or other similar arrangement. "EMPLOYEE PENSION BENEFIT PLAN" has the meaning set forth in ERISA Section 3(2). "EMPLOYEE WELFARE BENEFIT PLAN" has the meaning set forth in ERISA Section 3(1). "ENVIRONMENTAL, HEALTH, AND SAFETY REQUIREMENTS" shall mean all applicable federal, state, local and foreign statutes, regulations, ordinances and similar provisions having the force or effect of law, all judicial and administrative orders and determinations, and all common law concerning public health and safety, worker health and safety, pollution or protection of the environment, including, without limitation, all those relating to wetlands protection or the presence, use, production, generation, handling, transportation, treatment, storage, disposal, distribution, labeling, testing, processing, discharge, release, threatened release, control, or cleanup of any hazardous materials, substances or wastes, chemical substances or mixtures, pesticides, pollutants, contaminants, toxic chemicals, petroleum products or byproducts, asbestos, polychlorinated biphenyls, noise or radiation, each as amended, and as now or hereafter in effect. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended. "ERISA AFFILIATE" means each entity which is treated as a single employer with the Company or its Subsidiaries for purposes of Code Section 414. "EXECUTIVE" shall mean any of Ricke Kress, Steve Klus, William Haddow, Dan Lang, Ken Iwinski, Robert Wilson, John Stauner, Dick Teske, Nigel Cooper, and Jim Tierney. "FIDUCIARY" has the meaning set forth in ERISA Section 3(21). "FINANCIAL STATEMENT" has the meaning set forth in SECTION 4(g) below. "FIRSTAR FACILITY" means that certain Credit Agreement, dated as of March 15, 1999, by and between the Company and the financial institutions which are signatories thereto, and all amendments thereto. "FACILITY PROPERTIES" means those portions of the Owned Real Property enumerated under the heading "Facility Properties" in SECTION 4(l)(i) of the Disclosure Schedule. "FUNDAMENTAL REPRESENTATIONS AND WARRANTIES" means those representations and warranties made by the Company in SECTIONS 4(a), (b), (c), (d), and (e) below. "GAAP" means United States generally accepted accounting principles as in effect from time to time. "GOOD STANDING" means, when used with respect to the status of any corporation or limited liability company domiciled or doing business in the State of Wisconsin, that such corporation or limited liability company, as the case may be, has filed its most recent required annual report (or similar reports for non-corporate entities) and (i) if a domestic corporation or 3 limited liability company, has not filed articles of dissolution (or similar dissolution documents for non-corporate entities), and (ii) if a foreign corporation or limited liability company, has not applied for a certificate of withdrawal and is not the subject of a proceeding to revoke its certificate of authority (or similar certificates for non-corporate entities). "IMPROVEMENTS" means all buildings (or portions thereof), structures, fixtures, and building systems, and all components thereof, included in the Real Property. "INCOME TAX" means any federal, state, local, or foreign income tax, including any interest, penalty, or addition thereto, whether disputed or not. "INCOME TAX RETURN" means any return, declaration, report, claim for refund, or information return or statement relating to Income Taxes, including any schedule or attachment thereto, and including any amendment thereof. "INDEMNIFIED PARTY" has the meaning set forth in SECTION 6(d)(i) below. "INDEMNIFYING PARTY" has the meaning set forth in SECTION 6(d)(i) below. "INTELLECTUAL PROPERTY" means (a) all ideas, business methods, know-how, inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and all patents, patent applications, and patent disclosures, together with all reissues, continuations, continuations-in-part, divisions, revisions, extensions, and reexaminations thereof, (b) all trademarks, service marks, trade dress, logos, trade names, domain names and corporate names, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications for registration, registrations, and renewals in connection therewith, (c) all copyrightable works, all copyrights, and all applications for registration, registrations, and renewals in connection therewith, (d) all mask works and all applications for registration, registrations, and renewals in connection therewith, (e) all trade secrets and confidential business information (including without limitation ideas, research and development, know-how, formulas, compositions, manufacturing and production processes and techniques, technical data, designs, drawings, specifications, customer and supplier lists, pricing and cost information, and business and marketing plans and proposals), (f) all computer software (including, without limitation, data and related documentation), (g) all other proprietary rights, and (h) all copies and tangible embodiments thereof (in whatever form or medium now known or later developed). "KNOWLEDGE OF THE COMPANY" means the actual knowledge of John Swendrowski, Ricke Kress, Ken Iwinski and Robert Teske. "LEASED REAL PROPERTY" means all leasehold or subleasehold estates and other rights to use or occupy any land, buildings, structures, improvements, fixtures or other interest in real property held by any of the Company or its Subsidiaries. "LEASES" means all leases, subleases, licenses, concessions and other agreements (written or oral), including all amendments, extensions, renewals, guaranties and other agreements with 4 respect thereto, pursuant to which any of the Company or its Subsidiaries holds any Leased Real Property. "LIABILITY" means any liability (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due), including any liability for Taxes. "LIENS" means any mortgages, pledges, liens, claims, charges, security interests, guarantees, conditional and installment sale agreements, activity and use limitations, conservation easements, deed restrictions, and encumbrances of any kind. "MANAGEMENT AGREEMENT" means that certain Amended and Restated Key Executive Employment and Severance Agreement, dated as of April 14, 2000, by and between the Company and John Swendrowski. "MOST RECENT BALANCE SHEET" shall have the meaning set forth in SECTION 4(g) below. "MULTIEMPLOYER PLAN" has the meaning set forth in ERISA Section 3(37). "ORDINARY COURSE OF BUSINESS" means the ordinary course of business consistent with past custom and practice (including with respect to quantity and frequency). "ORGANIZATIONAL DOCUMENTS" means all documents relating to the formation, organization and governance of any Person, including, without limitation, charters, bylaws, operating agreements, and certifications of formation. "OWNED REAL PROPERTY" means all land, together with all buildings, structures, improvements, fixtures, trees, plants, and other crops located thereon, and all easements, rights of way, servitudes, tenements, hereditaments, appurtenances, privileges and other rights including, without limitation, oil, gas, mineral and water rights, with respect thereto, owned by the Company or its Subsidiaries. "PARTY" has the meaning set forth in the preface above. "PBGC" means the Pension Benefit Guaranty Corporation. "PERMITS" has the meaning set forth in SECTION 4(j) below. "PERMITTED ENCUMBRANCES" means with respect to each parcel of Real Property: (a) real estate Taxes, assessments and other governmental levies, fees or charges imposed with respect to such Real Property which are not due and payable as of the Closing Date, or which are being contested in good faith and for which appropriate reserves have been established in accordance with GAAP; (b) mechanics liens and similar liens for labor, materials or supplies provided with respect to such Real Property incurred in the ordinary course of business for amounts which are not due and payable and which would not, individually or in the aggregate, have a material adverse effect on the business of the Company and its Subsidiaries as currently conducted thereon; (c) zoning, building codes and other land use laws regulating the use or occupancy of such Real Property or the activities conducted thereon which are imposed by any governmental 5 authority having jurisdiction over such Real Property, which are not violated by, or the violation of which would not have a material adverse effect on, the current use or occupancy of such Real Property or the operation of the business of the Company and its Subsidiaries as currently conducted thereon; (d) easements, covenants, conditions, restrictions and other similar matters of record, or other immaterial conditions as would be disclosed by an accurate survey, affecting title to such Real Property which do not or would not materially impair the use or occupancy of such Real Property in the operation of the business of the Company and its Subsidiaries as currently conducted thereon; and (e) the encumbrances set forth on Section 4 of the Disclosure Schedule. "PERSON" means an individual, a partnership, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or a governmental entity (or any department, agency, or political subdivision thereof). "PROHIBITED TRANSACTION" has the meaning set forth in ERISA Section 406 and Code Section 4975. "REAL PROPERTY" has the meaning set forth in SECTION 4(l)(iii) below. "REAL PROPERTY PERMITS" has the meaning set forth in SECTION 4(l)(vii) below. "REPORTABLE EVENT" has the meaning set forth in ERISA Section 4043. "SEC DOCUMENTS" has the meaning set forth in SECTION 4(y) below. "SECURITIES ACT" means the Securities Act of 1933, as amended. "SECURITY INTEREST" means any mortgage, pledge, lien, encumbrance, charge, or other security interest, OTHER THAN (a) mechanic's, materialmen's, and similar liens, (b) liens for Taxes not yet due and payable, (c) purchase money liens and liens securing rental payments under capital lease arrangements, and (d) other liens arising in the Ordinary Course of Business and not incurred in connection with the borrowing of money. "SERIES A PREFERRED STOCK" has the meaning in the preface above. "SERIES B PREFERRED STOCK" has the meaning in the preface above. "SEVERANCE AND STAY BONUS PLAN" means the Northland Cranberries, Inc. Severance and Stay Bonus Plan, effective April 14, 2000. "SHARES" has the meaning set forth in SECTION 2(a) below. "SUBSIDIARY" means a Person of which another Person and/or their respective Subsidiaries, as the case may be, own directly or indirectly, such number of shares as have more than 50% of the ordinary voting power for the election of directors or managers. "TANGIBLE PERSONAL PROPERTY" means all equipment, machinery, and other similar tangible personal property, with an individual original cost of $50,000 or more, which is owned by the Company and its Subsidiaries and used in their respective business. 6 "TAX" means any federal, state, local, or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental (including taxes under Code Section 59A), customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated, or other tax of any kind whatsoever, including any interest, penalty, or addition thereto, whether disputed or not, and any tax of any other Person resulting from being a member of an Affiliated Group. "TAX RETURN" means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof. "THIRD PARTY CLAIM" has the meaning set forth in SECTION 6(d)(i) below. "WBCL" means the Wisconsin Business Corporation Law, Chapter 180 Wis. Stats. 2. PURCHASE AND SALE OF SHARES. (a) BASIC TRANSACTION. On and subject to the terms and conditions of this Agreement, the Buyer agrees to purchase from the Company, and the Company agrees to sell to the Buyer, 37,122,695.00 shares of Class A Common Stock, 1,668,885.00 shares of Series A Preferred Stock and 100 shares of Series B Preferred Stock (the "SHARES") for the consideration specified below in this SECTION 2. (b) CONSIDERATION. The Buyer agrees to deliver the following consideration to the Company at the Closing: (i) Wire transfer of immediately available funds equal to $7,000,000 (the "CASH PURCHASE PRICE"); (ii) The assignment of the Buyer's rights to each of the Assignment, Assumption and Release Agreements (it being understood by the Parties that such assignment will result in the cancellation of at least $86.8 million of the Company's indebtedness). (c) THE CLOSING. The closing of the transactions contemplated by this Agreement (the "CLOSING") shall take place as of the close of business on the date this Agreement is signed by the Parties (the "CLOSING DATE"). (d) DELIVERIES AT THE CLOSING. (i) At the Closing, the Company will deliver to the Buyer: (A) the various certificates, instruments, and documents referred to in SECTION 5(a) below, and (B) stock certificates representing the Shares, free and clear of all Liens. (ii) At the Closing, the Buyer will deliver to the Company: (i) the various certificates, instruments, and documents referred to in SECTION 5(b) below and (ii) the consideration specified in SECTION 2(b) above. 7 3. REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer represents and warrants to the Company that the statements contained in this SECTION 3 are correct and complete as of the date of this Agreement, except as set forth in ANNEX I attached hereto. (a) ORGANIZATION OF THE BUYER. The Buyer is a limited liability company duly organized, validly existing, and in good standing under the laws of the jurisdiction of its formation. (b) AUTHORIZATION OF TRANSACTION. The Buyer has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement constitutes the valid and legally binding obligation of the Buyer, enforceable in accordance with its terms and conditions. The Buyer need not give any notice to, make any filing with, or obtain any authorization, consent, or approval of any government or governmental agency in order to consummate the transactions contemplated by this Agreement. (c) NONCONTRAVENTION. Neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will (A) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to which the Buyer is subject or any provision of its Organizational Documents or (B) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, or other arrangement to which the Buyer is a party or by which it is bound or to which any of its assets is subject. (d) BROKERS' FEES. The Buyer has no Liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which the Company could become liable or obligated. (e) INVESTMENT. The Buyer is not acquiring the Shares with a view to or for sale in connection with any distribution thereof within the meaning of the Securities Act. 4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and warrants to the Buyer that the statements contained in this SECTION 4 are correct and complete as of the date of this Agreement, except as set forth in the disclosure schedule delivered by the Company to the Buyer on the date hereof (the "DISCLOSURE SCHEDULE") or as set forth in the Company's SEC Documents. Except for disclosures relating to environmental matters pursuant to SECTION 4(w), and made in Section 4(w) of the Disclosure Schedule, which may refer to specific environmental surveys and reports, nothing in the Disclosure Schedule shall be deemed adequate to disclose an exception to a representation or warranty made herein, however, unless the Disclosure Schedule identifies the exception with reasonable particularity and describes the relevant facts in reasonable detail. Except for disclosures relating to environmental matters pursuant to SECTION 4(w), and made in Section 4(w) of the Disclosure Schedule, which may refer to specific environmental surveys and reports, the mere listing (or inclusion of a copy) of a document or other item shall not be deemed adequate to disclose an exception to a representation or warranty made herein (unless the representation or warranty has to do with the existence of the document 8 or other item itself). The Disclosure Schedule will be arranged in paragraphs corresponding to the lettered and numbered paragraphs contained in this SECTION 4. (a) ORGANIZATION, QUALIFICATION, AND CORPORATE POWER. Each of the Company and its Subsidiaries is a corporation, or limited liability company, duly formed or organized, as the case may be, validly existing, and in Good Standing under the laws of the jurisdiction of its incorporation or formation. Each of the Company and its Subsidiaries is duly authorized to conduct business and is in Good Standing under the laws of each jurisdiction where such qualification is required, except where the failure to be so qualified or in Good Standing would not have a material adverse effect on the Company or its Subsidiaries. Each of the Company and its Subsidiaries has full corporate, or limited liability company, power and authority and all licenses, permits, and authorizations necessary to carry on the businesses in which it is engaged and to own and use the properties owned and used by it, except where the failure to have any such licenses, permits or authorizations would not have a material adverse effect on the Company or its Subsidiaries. Section 4(a) of the Disclosure Schedule lists the directors and officers of each of the Company and its Subsidiaries. The Company has delivered to the Buyer correct and complete copies of the Organizational Documents of each of the Company and its Subsidiaries. The minute books (containing the records of meetings of the stockholders, the board of directors, and any committees of the board of directors), the stock certificate books, and the stock record books (or similar books and records for any of the Company's Subsidiaries which is not a corporation) of each of the Company and its Subsidiaries are correct and complete. None of the Company and its Subsidiaries is in default under or in violation of any provision of its Organizational Documents. The Company has full power and authority (including full corporate power and authority) to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement constitutes the valid and legally binding obligation of the Company, enforceable in accordance with its terms and conditions, except as such enforceability may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting or relating to creditors' rights generally, and by general equitable principles. (b) CAPITALIZATION AND ISSUANCE OF SHARES. Immediately prior to the Closing, the entire authorized Capital Stock of the Company consists of 60,000,000 shares of Class A Common Stock, of which no greater than 5,100,000 shares are issued and outstanding and no shares are held in treasury; 4,000,000 shares of Class B Common Stock, par value $0.01 per share ("CLASS B COMMON STOCK"), of which no shares are issued and outstanding and no shares are held in treasury, and 5,000,000 shares of preferred stock, par value $0.01 per share, of which no shares are issued or outstanding. Immediately following the Closing, the entire authorized Capital Stock of the Company will consist of 60,000,000 shares of Class A Common Stock, of which approximately 49,827,788.00 shares will be issued and outstanding and no shares will be held in treasury; 4,000,000 shares of Class B Common Stock, of which no shares will be issued and outstanding and no shares will held in treasury, and 5,000,000 shares of preferred stock, of which 1,668,885.00 shares will be designated Series A Preferred Stock and will be issued and outstanding and of which 100 shares will be designated Series B Preferred Stock and will be issued and outstanding. Except as contemplated herein and by the transactions contemplated hereby, there are no outstanding or authorized Liens, options, warrants, purchase rights, subscription rights, conversion rights, exchange rights, or other contracts or commitments that could require the Company or its Subsidiaries to issue, sell, or otherwise cause to become 9 outstanding any of its Capital Stock. There are no outstanding or authorized stock appreciation, phantom stock, profit participation, or similar rights with respect to the Company or its Subsidiaries. There are no voting trusts, proxies, or other agreements or understandings with respect to the voting of the Capital Stock of the Company or its Subsidiaries. The Shares have been duly authorized and when issued, delivered and paid for pursuant to the terms of this Agreement, will be duly and validly issued, fully paid and non-assessable, except as otherwise provided in Section 180.0622(2)(b) of the WBCL. (c) NONCONTRAVENTION. Neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will (i) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to which any of the Company or its Subsidiaries is subject or any provision of their respective Organizational Documents or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any material agreement, contract, lease, license, instrument, or other arrangement to which any of the Company or its Subsidiaries is a party or by which it is bound or to which any of its assets is subject (or result in the imposition of any Security Interest upon any of its assets). None of the Company and its Subsidiaries needs to give any notice to, make any filing with, or obtain any authorization, consent, or approval of any government or governmental agency or other Person in order for the Parties to consummate the transactions contemplated by this Agreement. (d) BROKERS' FEES. Except for fees and commissions owed to Rabobank International, which shall not exceed $400,000 (plus expenses not to exceed $75,000), and the fees and expenses pursuant to a management services agreement to be entered into at Closing pursuant to SECTION 5(a)(xx), none of the Company and its Subsidiaries has any Liability or obligation to pay any fees or commissions to any broker, finder or agent with respect to the transactions contemplated by this Agreement. (e) TITLE TO ASSETS. Except for Permitted Encumbrances, the Company and its Subsidiaries have good and marketable title to, or a valid leasehold interest in, the properties and assets used by them, located on their premises, or shown on the Most Recent Balance Sheet or acquired after the date thereof, free and clear of all Security Interests, except for properties and assets disposed of in the Ordinary Course of Business since August 31, 2001. The Company and its Subsidiaries own, or as of the Closing will own, all of the assets necessary for the conduct of their respective businesses in the same manner as they have been conducted since the August 31, 2001. (f) SUBSIDIARIES. Section 4(f) of the Disclosure Schedule sets forth for each Subsidiary of the Company (i) its name and jurisdiction of incorporation or formation, (ii) the number of shares or membership interests, as applicable, of authorized Capital Stock of each class of its Capital Stock, (iii) the number of issued and outstanding shares or membership interests, as applicable, of each class of its Capital Stock, the names of the holders thereof as such names are reflected in the Company's records, and the number of shares or membership interests, as applicable, held by each such holder, and (iv) the number of shares or membership interests, as applicable, of its Capital Stock held in treasury. All of the issued and outstanding shares or membership interests, as applicable, of Capital Stock of each Subsidiary and each 10 Affiliate of the Company have been duly authorized and are validly issued, fully paid, and nonassessable, except as otherwise provided in Section 180.0622(2)(b) of the WBCL. One of the Company or its Subsidiaries holds of record and owns beneficially all of the outstanding shares or membership interests, as applicable, of each Subsidiary of the Company, free and clear of any restrictions on transfer (other than restrictions under the Securities Act and state securities laws), Liens, Taxes, Security Interests, options, warrants, purchase rights, contracts, commitments, equities, claims, and demands. There are no outstanding or authorized options, warrants, purchase rights, subscription rights, conversion rights, exchange rights, or other contracts or commitments that could require the Company to sell, transfer, or otherwise dispose of any Capital Stock of any of its Subsidiaries or that could require any Subsidiary of the Company to issue, sell, or otherwise cause to become outstanding any of its own Capital Stock. There are no outstanding stock appreciation, phantom stock, profit participation, or similar rights with respect to any Subsidiary of the Company. There are no voting trusts, proxies, or other agreements or understandings with respect to the voting of any Capital Stock of any Subsidiary of the Company. None of the Company and its Subsidiaries controls directly or indirectly or has any direct or indirect equity participation in any corporation, partnership, trust, or other business association which is not a Subsidiary of the Company and its Subsidiaries. (g) FINANCIAL STATEMENTS. Attached hereto as EXHIBIT A are the following financial statements (collectively, including the notes thereto, the "FINANCIAL STATEMENTS"): audited consolidated balance sheet as of August 31, 2000 and unaudited consolidated balance sheet as of August 31, 2001 (the "MOST RECENT BALANCE SHEET") and audited consolidated statements of operations, changes in shareholders' equity, and cash flows for the fiscal years ended August 31, 1999 and August 31, 2000, and unaudited consolidated statements of operations, changes in shareholders' equity, and cash flows for the fiscal year ended August 31, 2001, for the Company and its Subsidiaries. The Financial Statements have been prepared in accordance with GAAP applied on a consistent basis throughout the periods covered thereby, present fairly the financial condition of the Company and its Subsidiaries as of such dates and the results of operations of the Company and its Subsidiaries for such periods, are correct and complete in all material respects, and are consistent in all material respects with the books and records of the Company and its Subsidiaries (which books and records are correct and complete in all material respects). (h) EVENTS SUBSEQUENT TO MOST RECENT FISCAL YEAR END. Since August 31, 2001, there has not been any material adverse change in the business, financial condition, operations, or results of operations of the Company and its Subsidiaries taken as a whole. Without limiting the generality of the foregoing, except with respect to the transactions contemplated hereby, since that date: (i) none of the Company and its Subsidiaries has sold, leased, transferred, or assigned any material assets, tangible or intangible, outside the Ordinary Course of Business; (ii) none of the Company and its Subsidiaries has entered into any material agreement, contract, lease, or license outside the Ordinary Course of Business; (iii) no party (including any of the Company or its Subsidiaries) has accelerated, terminated, made material modifications to, or canceled any material agreement, 11 contract, lease, or license to which any of the Company or its Subsidiaries is a party or by which any of them is bound nor will any party have a right to do the same due to this transaction; (iv) none of the Company and its Subsidiaries has imposed any Security Interest upon any of its assets, tangible or intangible including, but not limited to, its Intellectual Property; (v) none of the Company and its Subsidiaries has made any capital expenditures outside the Ordinary Course of Business; (vi) none of the Company and its Subsidiaries has made any capital investment in, or any loan to, any other Person outside the Ordinary Course of Business; (vii) the Company and its Subsidiaries have not created, incurred, assumed, or guaranteed any indebtedness for borrowed money and capitalized lease obligations; (viii) none of the Company and its Subsidiaries has delayed or postponed the payment of accounts payable and other Liabilities outside the Ordinary Course of Business; (ix) none of the Company and its Subsidiaries has granted any license or sublicense of any material rights under or with respect to any of its Intellectual Property; (x) there has been no change made or authorized in the Organizational Documents of any of the Company or its Subsidiaries; (xi) none of the Company and its Subsidiaries has issued, sold, or otherwise disposed of any of its Capital Stock, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its Capital Stock; (xii) none of the Company and its Subsidiaries has declared, set aside, or paid any dividend or made any distribution with respect to its Capital Stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its Capital Stock; (xiii) none of the Company and its Subsidiaries has experienced any damage, destruction, or loss (whether or not covered by insurance) to its property that is material to the Company or its Subsidiaries; (xiv) none of the Company and its Subsidiaries has made any loan to, or entered into any other transaction with, any of its directors, officers, and employees outside the Ordinary Course of Business; (xv) none of the Company and its Subsidiaries has entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement; (xvi) none of the Company and its Subsidiaries has granted any increase in the base compensation of any of its directors, officers, and employees outside the Ordinary Course of Business; 12 (xvii) none of the Company and its Subsidiaries has adopted, amended, modified, or terminated any bonus, profit sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, and employees (or taken any such action with respect to any other Employee Benefit Plan); (xviii) none of the Company and its Subsidiaries has made any other change in employment terms for any of its directors, officers, and employees outside the Ordinary Course of Business; (xix) none of the Company and its Subsidiaries has made or pledged to make any charitable or other capital contribution outside the Ordinary Course of Business; (xx) except as otherwise disclosed in this SECTION 4(h), there has not been any other occurrence, event, incident, action, failure to act, or transaction outside the Ordinary Course of Business involving any of the Company and its Subsidiaries; (xxi) none of the Company and its Subsidiaries has committed to any of the foregoing; and (xxii) none of the Company and its Subsidiaries has entered into any agreement to buy any shares of Capital Stock (or other equity interests of entities other than corporations) of any partnership, joint venture, trust, corporation, limited liability company or other entity. (i) UNDISCLOSED LIABILITIES. None of the Company and its Subsidiaries has any Liability, except for (i) liabilities set forth in the Financial Statements or disclosed in the Company's filings with the SEC and (ii) liabilities which have arisen after August 31, 2001 in the Ordinary Course of Business. (j) LEGAL COMPLIANCE. (i) Each of the Company and its Subsidiaries has complied with all applicable laws (including rules, regulations, codes, plans, injunctions, judgments, orders, decrees, rulings, and charges thereunder) of federal, state, local, and foreign governments (and all agencies thereof), and no action, suit, proceeding, hearing, investigation, charge, complaint, claim, demand, or notice has been filed or commenced against any of them alleging any failure so to comply, except where the failure to comply would not have a material adverse effect on the business, financial condition, operations or results of operations of the Company or its Subsidiaries. (ii) To the Knowledge of the Company, the Company and its Subsidiaries hold and are in compliance in all material respects, or will be in compliance in all material respects as of the Closing, with all permits, certificates, licenses, approvals, registrations and authorizations required by them in connection with the conduct of their respective businesses and the ownership and operation of their respective assets under all federal, state, local and foreign laws, rules and regulations (the "PERMITS"). All of the Permits are, and as of the Closing of the transactions contemplated hereby will be, in full force and effect in all respects in accordance with their respective terms. 13 (k) TAX MATTERS. (i) Each of the Company and its Subsidiaries (and any Affiliated Groups of which any of the Company or its Subsidiaries has been a member at any time) has filed all Tax Returns that it was required to file. All such Tax Returns were correct and complete in all respects. All Taxes owed by any of the Company or its Subsidiaries (and any Affiliated Groups of which any of the Company or its Subsidiaries has been a member at any time) (whether or not shown on any Tax Return) have been paid or fully accrued for in the Financial Statements. None of the Company and its Subsidiaries (or any Affiliated Groups of which any of the Company or its Subsidiaries has been a member at any time) currently is the beneficiary of any extension of time within which to file any Tax Return. (ii) There is no dispute or claim concerning any Tax Liability of any of the Company or its Subsidiaries either (A) claimed or raised by any authority in writing or (B) as to which the Company and the directors and officers of the Company and its Subsidiaries has Knowledge based upon personal contact with any agent of such authority. (iii) Section 4(k) of the Disclosure Schedule lists all federal, state, local, and foreign Income Tax Returns filed with respect to each of the Company and its Subsidiaries for taxable periods ended on or after August 31, 1998 (including any returns filed by the parent of a consolidated, combined, unitary or similar group which includes any of the Company and its Subsidiaries for such periods), indicates all Tax Returns for taxable periods ended on or after August 31, 1998 that have been audited, and indicates all Tax Returns for taxable periods ended on or after August 31, 1998 that currently are the subject of audit. The Company has delivered to the Buyer correct and complete copies of all federal Income Tax Returns, examination reports, and statements of deficiencies with respect to each of the Company and its Subsidiaries since August 31, 1998. None of the Company and its Subsidiaries (or any Affiliated Group of which any of the Company or its Subsidiaries has been a member at any time) has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency. (iv) None of the Company and its Subsidiaries has made any payments, is obligated to make any payments, or is a party to any agreement that under certain circumstances could obligate it to make any payments that will not be deductible under Code Section 280G. None of the Company and its Subsidiaries is a party to any Tax allocation or sharing agreement. None of the Company and its Subsidiaries (A) has been a member of an Affiliated Group filing a consolidated federal Income Tax Return (other than a group the common parent of which was the Company) or (B) has any Liability for the Taxes of any Person (other than any of the Company or its Subsidiaries) under Reg. Section 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise. (v) The unpaid Taxes of the Company and its Subsidiaries did not, as of August 31, 2001, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth in the Financial Statements and will not exceed that reserve as adjusted for operations and transactions through the Closing Date. 14 (vi) None of the Company and its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (A) change in method of accounting for a taxable period ending on or prior to the Closing Date under Code Section 481(c) (or any corresponding or similar provision of state, local or foreign Income Tax law); (B) "closing agreement" as described in Code Section 7121 (or any corresponding or similar provision of state, local or foreign Income Tax law) executed on or prior to the Closing Date; (C) deferred intercompany gain or any excess loss account described in Treasury Regulations under Code Section 1502 (or any corresponding or similar provision of state, local or foreign Income Tax law); (D) installment sale or open transaction disposition made on or prior to the Closing Date; or (E) prepaid amount received on or prior to the Closing Date. (vii) There are no Liens for Taxes (other than Taxes not yet due and payable) upon the assets of any of the Company and its Subsidiaries (and any Affiliated Group of which any of the Company or its Subsidiaries has been a member at any time). (viii) None of the Company and its Subsidiaries has been a United States real property holding corporation within the meaning of Code Section 897(c)(2) during the applicable period specified in Code Section 897(c)(1)(A)(ii). (l) REAL PROPERTY. (i) SECTION 4(l)(i) of the Disclosure Schedule sets forth the address and description of each parcel of Owned Real Property. With respect to each parcel of Owned Real Property: (A) the Company or one of its Subsidiaries has good and marketable fee simple title, free and clear of all liens and encumbrances, except Permitted Encumbrances; (B) none of the Company or its Subsidiaries has leased or otherwise granted to any Person the right to use or occupy such Owned Real Property or any portion thereof; and (C) there are no outstanding options, rights of first offer or rights of first refusal to purchase such Owned Real Property or any portion thereof or interest therein. (ii) Section 4(l)(ii) of the Disclosure Schedule sets forth the address of each parcel of Leased Real Property, and a true and complete list of all Leases for each such Leased Real Property (including the date and name of the parties to such Lease document). The Company has delivered to the Buyer a true and complete copy of each such Lease document (including all amendments, extensions, renewals, guaranties and other documents with respect thereto), and in the case of any oral Lease, a written summary of the material terms of such Lease. With respect to each of the Leases: (A) such Lease is legal, valid, binding, enforceable and in full force and effect; 15 (B) the transaction contemplated by this Agreement does not require the consent of any other party to such Lease, will not result in a breach of or default under such Lease, and will not otherwise cause such Lease to cease to be legal, valid, binding, enforceable and in full force and effect on identical terms following the Closing; (C) to the Knowledge of the Company, no party to such Lease has repudiated any provision thereof, and there are no disputes, oral agreements or forbearance programs in effect with respect to such Lease; (D) to the Knowledge of the Company, none of the Company and its Subsidiaries, or any other party to the Lease, is in breach or default under such Lease, and, to the Knowledge of the Company, no event has occurred or circumstance exists which, with the delivery of notice, the passage of time or both, would constitute such a breach or default, or permit the termination, modification or acceleration of rent under such Lease; (E) no security deposit or portion thereof deposited with respect to such Lease has been applied in respect of a breach or default under such Lease which has not been redeposited in full; (F) none of the Company and its Subsidiaries owes, or will owe in the future, any brokerage commissions or finder's fees with respect to such Lease; (G) the other party to such Lease is not an Affiliate of, and otherwise does not have any economic interest in, any of the Company or its Subsidiaries; (H) none of the Company and its Subsidiaries has subleased, licensed or otherwise granted any Person the right to use or occupy such Leased Real Property or any portion thereof; and (I) none of the Company and its Subsidiaries has collaterally assigned or granted any other security interest in such Lease or any interest therein. (iii) The Owned Real Property identified in Section 4(l)(i) of the Disclosure Schedule, and the Leased Real Property identified in Section 4(l)(ii) of the Disclosure Schedule (the "REAL PROPERTY") comprise all of the real property used or intended to be used in the business of the Company and its Subsidiaries; and none of the Company and its Subsidiaries is a party to any agreement or option to purchase any real property or interest therein. (iv) To the Knowledge of the Company, (A) all buildings (or portions thereof), structures, fixtures and building systems, included in the Real Property are in condition and repair sufficient for the operation of the business of the Company and its Subsidiaries, and (B) those building systems which are not included in the Real Property and all equipment, and all components thereof, are in good condition and repair, reasonable wear and tear excepted, and sufficient for the operation of the business of the Company and its Subsidiaries. To the Knowledge of the Company, there are no facts or conditions affecting any of the Improvements which would, individually or in the aggregate, interfere in any material respect with the use or 16 occupancy of the Improvements or any portion thereof in the operation of the business of the Company and its Subsidiaries as currently conducted thereon. (v) None of Company or its Subsidiaries has received written notice of any condemnation, expropriation or other proceeding in eminent domain, affecting any parcel of Owned Real Property or any portion thereof or interest therein. There is no injunction, decree, order, writ or judgment outstanding, nor any claims, litigation, administrative actions or similar proceedings, pending, or, to the Knowledge of the Company, threatened, relating to the ownership, lease, use or occupancy of the Owned Real Property or any portion thereof, or the operation of the business of the Company or its Subsidiaries as currently conducted thereon and will not exceed that reserve as adjusted for operations and transactions through the Closing Date. (vi) To the Knowledge of the Company, the Real Property is in material compliance with all applicable building, zoning, subdivision, health and safety and other land use Laws, including The Americans with Disabilities Act of 1990, as amended, and all insurance requirements affecting the Real Property (collectively, the "REAL PROPERTY LAWS"). None of Company or its Subsidiaries has received any notice of violation of any Real Property Law and, to the Knowledge of the Company, there is no basis for the issuance of any such notice or the taking of any action for such violation. (vii) To the Knowledge of the Company, all certificates of occupancy, permits, licenses, franchises, approvals and authorizations (collectively, the "REAL PROPERTY PERMITS") of all governmental authorities having jurisdiction over the Real Property, required or appropriate to have been issued to the Company or its Subsidiaries to enable the Real Property to be lawfully occupied and used for all of the purposes for which it is currently occupied and used have been lawfully issued and are in full force and effect. Neither the Company nor any Subsidiary has received or been informed by a third party of the receipt by it of any notice from any governmental authority having jurisdiction over the Real Property threatening a suspension, revocation, modification or cancellation of any Real Property Permit and, to the Knowledge of the Company, there is no basis for the issuance of any such notice or the taking of any such action. (viii) Each parcel of Real Property has direct access to a public street adjoining the Real Property or has access to a public street via insurable easements benefitting such parcel of Real Property, and such access is not dependent on any land or other real property interest which is not included in the Real Property. None of the Improvements or any portion thereof is dependent for its access, use or operation on any land, building, improvement or other real property interest which is not included in the Real Property. (ix) To the Knowledge of the Company, all water, oil, gas, electrical, steam, compressed air, telecommunications, sewer, storm and waste water systems and other utility services or systems for the Real Property have been installed and are operational and sufficient for the operation of the business of the Company and its Subsidiaries as currently conducted thereon. (x) To the Knowledge of the Company, the Company and its Subsidiaries' use or occupancy of the Real Property or any portion thereof and the operation of the business of the 17 Company and its Subsidiaries as currently conducted thereon is not dependent on a "permitted nonconforming use" or "permitted non-conforming structure" or similar variance, exemption or approval from any governmental authority. (xi) To the Knowledge of the Company, the current use and occupancy of the Owned Real Property and the operation of the business of the Company and its Subsidiaries as currently conducted thereon does not violate any easement, covenant, condition, restriction or, similar provision in any instrument of record or other unrecorded agreement affecting such Owned Real Property, the violation of which would have a material adverse effect on the operation of the business of the Company or its Subsidiaries. (m) INTELLECTUAL PROPERTY. (i) To the Knowledge of the Company, none of the Company and its Subsidiaries has interfered with, infringed, misappropriated, or violated any Intellectual Property rights of third parties that are currently not resolved, and neither the Company nor the directors, officers or employees of the Company and its Subsidiaries has received any correspondence, charge, complaint, claim, demand, or notice alleging any such non-resolved interference, infringement, misappropriation, or violation (including any offer for a license or any claim that any of the Company or its Subsidiaries must refrain from using any Intellectual Property rights of any third party). To the Knowledge of the Company, no third party has interfered with, infringed, misappropriated, or violated any Intellectual Property rights of any of the Company or its Subsidiaries that are currently not resolved. (ii) Section 4(m)(ii) of the Disclosure Schedule identifies each issued patent and each trademark, service mark, copyright, trade name and domain name registration that has been issued to any of the Company or its Subsidiaries with respect to any of its and their Intellectual Property, identifies each pending patent application and all applications for registration of any trademark, service mark, copyright and trade name that any of the Company or its Subsidiaries has made with respect to any of its Intellectual Property, and identifies each license, agreement, or other permission that any of the Company or its Subsidiaries has granted to any third party with respect to any of its Intellectual Property (together with any exceptions). The Company has delivered to the Buyer correct and complete copies of all such patents, registrations, applications for registration and patent, licenses, agreements, and permissions (as amended). Section 4(m)(ii) of the Disclosure Schedule also identifies each trade name, unregistered trademark, and unregistered copyright used by any of the Company or its Subsidiaries in connection with any of its businesses. With respect to each item of Intellectual Property required to be identified in Section 4(m)(ii) of the Disclosure Schedule: (A) the Company and its Subsidiaries possess all right, title, and interest in and to such item, free and clear of any Security Interest, license, or other restriction or Liens; (B) the item is not subject to any outstanding injunction, judgment, order, decree, ruling, or charge; 18 (C) no action, suit, proceeding (administrative or judicial), hearing, investigation, charge, complaint, claim, or demand is pending or, to the Knowledge of the Company is threatened which challenges the legality, validity, enforceability, use, or ownership of the item; (D) all maintenance and other fees for Intellectual Property registrations have been paid and are up to date, and all applications for registration of the Intellectual Property are in good standing and are being diligently prosecuted; and (E) none of the Company and its Subsidiaries has ever agreed to indemnify any Person for or against any use, interference, infringement, misappropriation or other conflict with respect to the item. (iii) Section 4(m)(iii) of the Disclosure Schedule identifies each material item of Intellectual Property that any third party owns and that any of the Company or its Subsidiaries uses pursuant to license, sublicense, lease, agreement, or permission. The Company has delivered to the Buyer correct and complete copies of all such licenses, sublicenses, leases, agreements, and permissions (as amended). With respect to each item of Intellectual Property required to be identified in Section 4(m)(iii) of the Disclosure Schedule: (A) the license, sublicense, agreement, or permission covering the item is legal, valid, binding, enforceable, and in full force and effect in all respects; (B) no party to the license, sublicense, agreement, or permission is in breach or default, and no event has occurred which with notice or lapse of time would constitute a breach or default or permit termination, modification, or acceleration thereunder; (C) no party to the license, sublicense, lease, agreement, or permission has repudiated any provision thereof nor shall have a right to do the same as a result of this transaction; and (D) none of the Company and its Subsidiaries has granted any sublicense or similar right with respect to such license, sublicense, lease, agreement, or permission. (n) TANGIBLE ASSETS. The Company and its Subsidiaries have good and marketable title to and are in possession of all items of tangible personal property used in their respective businesses (other than leased property), and such property is free and clear of all Security Interests. The buildings, machinery, equipment and other tangible assets that the Company and its Subsidiaries own or lease are free from material defects (patent and latent), have been maintained in accordance with normal industry practice, and are in good operating condition and repair (subject to normal wear and tear). Section 4(n) of the Disclosure Schedule hereto describes all sales of Tangible Personal Property by the Company and its Subsidiaries since August 31, 2001 outside the Ordinary Course of Business and sets forth (i) the date of any such sale, (ii) a description of the Tangible Personal Property sold in any such sale, (iii) the sales price of the Tangible Personal Property sold in any such sale and (iv) the reason(s) for such sale. 19 (o) CONTRACTS. Section 4(o) of the Disclosure Schedule lists the following contracts and other agreements, whether written or oral, to which any of the Company or its Subsidiaries is a party or otherwise bound (except those agreements contemplated by this Agreement or in connection with the restructuring in connection therewith): (i) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments which extend over a period of more than 180 days or include consideration in excess of $250,000; (ii) any agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than 180 days or involve consideration in excess of $250,000; (iii) any agreement concerning a partnership or joint venture; (iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, or under which it has imposed a Security Interest on any of its assets, tangible or intangible; (v) any material agreement imposing confidentiality obligations on the Company or its Subsidiaries; (vi) any contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; (vii) any agreement with the Company and its Affiliates (other than the Company and its Subsidiaries); (viii) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of its current or former directors, officers, and employees; (ix) any collective bargaining agreement; (x) any agreement for the employment of any individual on a full-time, part-time, consulting, or other basis providing annual compensation in excess of $50,000 or providing material severance benefits; (xi) any contract, agreement or other arrangement with any officer or director of the Company or any of its Subsidiaries; (xii) any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees; 20 (xiii) any agreement under which the consequences of a default or termination could have a material adverse effect on the business, financial condition, operations or results of operations of the Company or its Subsidiaries; or (xiv) any other agreement (or group of related agreements) the performance of which involves consideration in excess of $250,000. The Company has delivered to the Buyer a correct and complete copy of each written agreement (as amended) listed in Section 4(o) of the Disclosure Schedule and a written summary setting forth the material terms and conditions of each oral agreement referred to in Section 4(o) of the Disclosure Schedule. With respect to each such agreement: (A) the agreement is legal, valid, binding, enforceable (except as enforceability may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting or relating to creditors' rights generally, and by general equitable principles) and in full force and effect; (B) the agreement will continue to be legal, valid, binding, enforceable (except as enforceability may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting or relating to creditors' rights generally, and by general equitable principles), and in full force and effect on identical terms following the consummation of the transactions contemplated hereby, (C) the Company is not, and to the Knowledge of the Company, no other party is in breach or default, and no event has occurred which with notice or lapse of time would constitute a breach or default, or permit termination, modification, or acceleration, under the agreement; and (D) the Company has not, and to the Knowledge of the Company, no other party has repudiated any material provision of the agreement. (p) NOTES AND ACCOUNTS RECEIVABLE. Section 4(p) of the Disclosure Schedule is an accounts receivable aging report which shows (i) the accounts receivable of the Company and its Subsidiaries, (ii) the name of each account debtor, (iii) the aging of each account receivable and the nature of the transaction in which it arose if other than an account receivable arising in the Ordinary Course of Business and (iv) a list of the provisions for reserves for doubtful accounts receivable or write-offs of accounts receivable made by the Company and its Subsidiaries since August 31, 1999. The accounts receivable of the Company and its Subsidiaries represent bona fide indebtedness incurred by account debtors and arose in the Ordinary Course of Business. No event has occurred that would, under practices in effect when the Most Recent Balance Sheet was prepared, require an increase in the reserves for any accounts receivable and, to the Knowledge of the Company, there is no contest, claim or right of set-off with any account debtor relating to the amount or validity of any account receivable other than those which do not exceed, in the aggregate, the reserve for uncollectible accounts contained in the Financial Statements. The Company and its Subsidiaries have good and marketable title to their respective accounts receivable reflected on the Most Recent Balance Sheet and to each of the accounts receivables that arose after August 31, 2001, free and clear of all Security Interests. (q) POWERS OF ATTORNEY. To the Knowledge of the Company, there are no outstanding powers of attorney executed on behalf of any of the Company or its Subsidiaries. (r) INSURANCE. Section 4(r) of the Disclosure Schedule sets forth the following information with respect to each insurance policy (including policies providing property, casualty, liability, and workers' compensation coverage and bond and surety arrangements) 21 currently in effect with respect to which any of the Company or its Subsidiaries is a party, a named insured, or otherwise the beneficiary of coverage: (i) the name, address, and telephone number of the agent; (ii) the name of the insurer, the name of the policyholder, and the name of each covered insured; (iii) the policy number and the period of coverage; (iv) the scope (including an indication of whether the coverage is on a claims made, occurrence, or other basis) and amount (including a description of how deductibles and ceilings are calculated and operate) of coverage; and (v) a description of any retroactive premium adjustments or other material loss-sharing arrangements. With respect to each such insurance policy: (A) the policy is legal, valid, binding, enforceable, and in full force and effect in all material respects; (B) the policy will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated hereby; (C) neither any of the Company or its Subsidiaries nor, to the Knowledge of the Company, any other party to the policy is in breach or default (including with respect to the payment of premiums or the giving of notices), and, to the Knowledge of the Company, no event has occurred which, with notice or the lapse of time, would constitute such a breach or default, or permit termination, modification, or acceleration, under the policy; and (D) no party to the policy has repudiated any material provision thereof. Section 4(r) of the Disclosure Schedule describes any material self-insurance arrangements affecting any of the Company or its Subsidiaries. (s) LITIGATION. Section 4(s) of the Disclosure Schedule sets forth each instance in which any of the Company or its Subsidiaries (i) is subject to any outstanding injunction, judgment, order, decree, ruling, or charge or (ii) is a party or, to the Knowledge of the Company, is threatened to be made a party to any action, suit, proceeding, hearing, or investigation of, in, or before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator. None of the actions, suits, proceedings, hearings, and investigations set forth in Section 4(s) of the Disclosure Schedule could reasonably be expected result in any material adverse change in the business, financial condition, operations or results of operations of any of the Company and its Subsidiaries. To the Knowledge of the Company, there is no reason to believe that any such action, suit, proceeding, hearing, or investigation may be brought or threatened against any of the Company and its Subsidiaries. (t) EMPLOYEES. To the Knowledge of the Company, no executive, key employee, or significant group of employees plans to terminate employment with any of the Company or its Subsidiaries during the next 12 months. None of the Company and its Subsidiaries is a party to or bound by any collective bargaining agreement, nor has any of them experienced any strike or material grievance, claim of unfair labor practices, or other collective bargaining dispute within the past three years. None of the Company and its Subsidiaries has committed any material 22 unfair labor practice. To the Knowledge of the Company, there are no organizational effort presently being made or threatened by or on behalf of any labor union with respect to employees of any of the Company or its Subsidiaries. (u) EMPLOYEE BENEFITS. (i) Section 4(u) of the Disclosure Schedule sets forth an accurate and complete list of each material Employee Benefit Plan that any of the Company or its Subsidiaries or ERISA Affiliates maintains, has any Liability or potential Liability, or to which any of the Company or its Subsidiaries or ERISA Affiliates contributes or has any obligation to contribute on behalf of any current or former employees of the Company and its Subsidiaries; and, with respect to each such Employee Benefit Plan: (A) such Employee Benefit Plan (and each related trust, insurance contract, or fund) has been maintained, funded and administered substantially in accordance with the terms of such Employee Benefit Plan and complies in form and in operation in all material respects with the applicable requirements of ERISA, the Code, and other applicable laws; (B) all required reports and descriptions (including annual reports (IRS Form 5500), summary annual reports, and summary plan descriptions) have been timely filed and/or distributed in accordance with the applicable requirements of ERISA and the Code with respect to each such Employee Benefit Plan. The requirements of COBRA have been met in all material respects with respect to each such Employee Benefit Plan which is an Employee Welfare Benefit Plan subject to COBRA; (C) all contributions (including all employer contributions and employee salary reduction contributions) which are due for any period ending on or before the Closing Date have been made within the time periods prescribed by ERISA and the Code to each such Employee Benefit Plan which is an Employee Pension Benefit Plan and all contributions for any period ending on or before the Closing Date which are not yet due have been made to each such Employee Pension Benefit Plan or accrued by the Company and its Subsidiaries. All premiums or other payments for all periods ending on or before the Closing Date have been paid with respect to each such Employee Benefit Plan which is an Employee Welfare Benefit Plan; (D) each such Employee Benefit Plan which is intended to meet the requirements of a "qualified plan" under Code Section 401(a) has received a favorable determination letter from the Internal Revenue Service that such Employee Benefit Plan is so qualified, and there are no facts or circumstances which exist that could reasonably be expected to adversely affect the qualified status of any such Employee Benefit Plan; (E) the market value of assets under each such Employee Benefit Plan which is an Employee Pension Benefit Plan (other than any Multiemployer Plan) equals or exceeds the present value of all vested and nonvested liabilities thereunder (determined on a plan termination basis using interest rates, factors and other methods specified by the Pension Benefits Guaranty Corporation (including its regulations) for the valuation of benefits upon a plan termination); 23 (F) the Company has delivered or made available to the Buyer or its agents correct and complete copies of the plan documents and summary plan descriptions, the most recent favorable determination letter received from the Internal Revenue Service, the most recent annual report (IRS Form 5500, with all applicable attachments), and all related trust agreements, insurance contracts, and other funding arrangements which implement or form a part of each such Employee Benefit Plan; and (G) no employee or former employee of the Company and its Subsidiaries will become entitled to any bonus, severance, job security, or similar benefit or any enhanced benefit (including, without limitation, the acceleration of vesting or exercise of an incentive award) solely as a result of the transactions contemplated hereby. (ii) With respect to each Employee Benefit Plan that any of the Company or its Subsidiaries and any ERISA Affiliate maintains, to which any of them contributes, or has any obligation to contribute, or with respect to which any of them has any Liability or potential Liability: (A) no such Employee Benefit Plan which is an Employee Pension Benefit Plan (other than any Multiemployer Plan) has been completely or partially terminated or been the subject of a Reportable Event as to which notices would be required to be filed with the PBGC. No proceeding by the PBGC to terminate any such Employee Pension Benefit Plan (other than any Multiemployer Plan) has been instituted or, to the Knowledge of the Company, threatened; (B) there have been no Prohibited Transactions with respect to any such Employee Benefit Plan. No Fiduciary has any Liability for any breach of fiduciary duty or any other failure to act or comply in connection with the administration or investment of the assets of any such Employee Benefit Plan nor do the transactions contemplated by this agreement constitute transactions which would subject any such party to either a civil penalty assessed pursuant to ERISA Section 502(i) or the Tax or penalty on prohibited transactions imposed by Code Section 4975. No action, suit, proceeding, hearing, or investigation with respect to the administration or the investment of the assets of any such Employee Benefit Plan (other than routine claims for benefits) is pending or, to the Knowledge of the Company, threatened which could result in any Liability to the Company and its Subsidiaries and, to the Knowledge of the Company, there are no circumstances which could give rise to any such action, suit, proceeding, hearing, or investigation; (C) none of the Company and its Subsidiaries has incurred any Liability (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due) to the PBGC (other than with respect to PBGC premium payments not yet due) or otherwise under Title IV of ERISA (including any withdrawal liability as defined in ERISA Section 4201) or under the Code with respect to any such Employee Benefit Plan which is an Employee Pension Benefit Plan, or under COBRA with respect to any such Employee Benefit Plan which is an Employee Welfare Benefit Plan; 24 (iii) none of the Company and its Subsidiaries or any ERISA Affiliate contributes to, has any obligation to contribute to, or has any Liability (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due), including any withdrawal liability (as defined in ERISA Section 4201), under or with respect to any Multiemployer Plan; and (iv) none of the Company and its Subsidiaries maintains, contributes to or has an obligation to contribute to, or has any Liability or potential Liability with respect to, any Employee Welfare Benefit Plan providing medical, health, or life insurance or other welfare-type benefits for current or future retired or terminated employees of the Company and its Subsidiaries (or any spouse or other dependent thereof) other than in accordance with COBRA. (v) GUARANTIES. None of the Company and its Subsidiaries is a guarantor or otherwise is responsible for any Liability or obligation (including indebtedness) of any other Person. (w) ENVIRONMENT, HEALTH, AND SAFETY MATTERS. (i) Each of the Company and its Subsidiaries and their respective predecessors and Affiliates and all of the Real Property and the use and development thereof has complied in all material respects and is in compliance in all material respects with all Environmental, Health, and Safety Requirements. (ii) Without limiting the generality of the foregoing, each of the Company and its Subsidiaries and their respective Affiliates, has obtained, has complied, and is in compliance in all material respects with all permits, licenses and other authorizations that are required pursuant to Environmental, Health, and Safety Requirements for the occupation of its facilities, the development and use of the Real Property, and the operation of its business. (iii) None of the Company and its Subsidiaries or their respective Affiliates has received any written or oral notice, report or other information regarding any actual or alleged violation of Environmental, Health, and Safety Requirements, or any Liabilities or potential Liabilities (whether accrued, absolute, contingent, unliquidated or otherwise), including any investigatory, remedial or corrective obligations, relating to any of them or their facilities (including without limitation the Real Estate) arising under Environmental, Health, and Safety Requirements. (iv) None of the following exists at any property or facility owned or operated by the Company or its Subsidiaries: (1) underground storage tanks, (2) asbestos-containing material in any friable and damaged form or condition, (3) materials or equipment containing polychlorinated biphenyls, or (4) solid waste landfills, solid waste surface impoundments, or solid waste disposal areas. (v) To the Knowledge of the Company, none of the Company and its Subsidiaries or any of their respective predecessors or Affiliates has treated, stored, disposed of, arranged for or permitted the disposal of, transported, handled, or released any substance, including without limitation any hazardous substance, or owned or operated any property or 25 facility (and no such property or facility is contaminated by any such substance) in a manner that has given or would give rise to Liabilities, including any Liability for response costs, corrective action costs, personal injury, property damage, natural resources damages or attorney fees or any remedial or corrective obligation, pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended ("CERCLA") or the Solid Waste Disposal Act, as amended ("SWDA") or any other Environmental, Health, and Safety Requirements. (vi) Except as set forth in SECTION 8(q) hereof, neither this Agreement nor the consummation of the transaction that is the subject of this Agreement will result in any obligations for site investigation or cleanup, or notification to or consent of government agencies or third parties, pursuant to any of the so-called "transaction-triggered" or "responsible property transfer" Environmental, Health, and Safety Requirements. (vii) None of the Company and its Subsidiaries has assumed, undertaken, or otherwise become subject to, any Liability, including without limitation any obligation for corrective or remedial action, of any other person or entity relating to Environmental, Health, and Safety Requirements. (viii) The Company has provided to the Buyer copies of all environmental reports, audits, assessments, and investigations, all wetlands related studies or sampling documents, and any other material environmental documents, related to the past or present facilities, properties or operations of the Company and its Subsidiaries or any of their respective predecessors, to the extent the foregoing are in the possession, custody, or control of the Company or any of the Company and its Subsidiaries. (x) CERTAIN BUSINESS RELATIONSHIPS WITH THE COMPANY AND ITS SUBSIDIARIES. Neither the Company nor its Subsidiaries has entered into any agreements with any Affiliate of the Company or its Subsidiaries which is still in force, and no Affiliate of the Company or its Subsidiaries owns any asset, tangible or intangible, which is used in the business of the Company or its Subsidiaries. (y) SEC DOCUMENTS. (i) The Company has filed all required forms, reports and documents with the Commission since September 30, 1998, including all exhibits thereto (collectively, the "SEC DOCUMENTS"), each of which complied in all material respects with all applicable requirements of the Securities Act and the Exchange Act as in effect on the dates so filed. None of the SEC Documents (as of their respective filing dates or, if amended, as of the date of the last such amendment filed prior to the date hereof) contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. (ii) To the Company's Knowledge, there are no facts that could, individually or in the aggregate, reasonably be expected to have a material adverse effect and that have not been disclosed in the SEC Documents or this Agreement (including the Disclosure Schedule) 26 other than the transactions contemplated hereby and the related restructuring in connection herewith. (z) RELATIONSHIPS WITH CUSTOMERS AND VENDORS. Section 4(z) of the Disclosure Schedule sets forth a complete and correct list of the names and addresses of the ten (10) largest vendors and the ten (10) largest customers of each of the Company and its Subsidiaries during the twelve-month period ended on August 31, 2001 and the total sales to or purchases from such customers or vendors made by the Company and its Subsidiaries during each such twelve-month period. No such vendor or customer of the Company and its Subsidiaries has advised the Company and its Subsidiaries, formally or, to the Knowledge of the Company, informally, and to the Knowledge of the Company no such vendor or customer intends to terminate, discontinue or reduce its business with the Company and its Subsidiaries by reason of the transactions contemplated by this Agreement or otherwise. (aa) ACCOUNTS PAYABLE AND OTHER ACCRUED EXPENSES. The accounts payable, premiums payable to carriers, commissions payable and other accrued expenses of the Company and its Subsidiaries represent bona fide obligations incurred by the Company and its Subsidiaries which arose in the Ordinary Course of Business. Set forth on Section 4(aa) of the Disclosure Schedule is a list of all accounts payable, premiums payable to carriers and other accrued expenses as of August 31, 2001, in each case indicating the name of each payee, the relationship (if any) of the payee to the Company and its Subsidiaries, the amount payable to each payee, the date each such payment is due, the aging of such payable and the nature of the transaction in which it was incurred if other than a trade payable incurred in the Ordinary Course of Business consistent with past practice. (bb) BANK ACCOUNTS. Section 4(bb) of the Disclosure Schedule sets forth: (a) the name of each bank in which the Company and its Subsidiaries have an account or safe deposit box used in their respective businesses and the names of all persons authorized to draw thereon or to have access thereto; and (b) the name of each person, corporation, firm, association or business organization, entity or enterprise holding a general or special power of attorney from the Company and its Subsidiaries with respect to such accounts and safe deposits boxes. (cc) INFORMATION ACCURATE AND COMPLETE; RELIANCE. Without limiting the specific language of any other representation or warranty in this SECTION 4, all information furnished or to be furnished by the Company and its Subsidiaries to the Buyer in this Agreement, and in exhibits or schedules attached hereto, is or will be accurate and complete, includes or will include, to the Knowledge of the Company, all material facts required to be stated therein, and to the Knowledge of the Company, does not or will not contain any untrue statement of a material fact or omit any material fact necessary to make the statements therein not misleading. Notwithstanding any right of the Buyer fully to investigate the affairs of the Company and its Subsidiaries, and notwithstanding any knowledge of facts determined or determinable by the Buyer pursuant to such investigation or right of investigation, the Buyer has the right to rely fully upon the representations and warranties of the Company, contained herein, in the exhibits or the schedules hereto or in any other document delivered in connection with the transactions contemplated hereby. 27 5. CONDITIONS TO OBLIGATION TO CLOSE. (a) CONDITIONS TO OBLIGATION OF THE BUYER. The obligation of the Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions: (i) the representations and warranties set forth in SECTION 4 above shall be true and correct in all material respects (except to the extent that any such representation or warranty is qualified by any materiality standard, in which case such representation and warranty shall be true and correct in all respects) at and as of the Closing Date; (ii) the Company shall have provided notices to third parties, and shall have procured any third party consents, that the Buyer reasonably requested in connection with the matters referred to in SECTION 4(c) above; (iii) no action, suit, or proceeding shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) affect adversely the right of the Buyer to own the Shares and to control the Company and its Subsidiaries, or (D) affect materially and adversely the right of any of the Company or its Subsidiaries to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect); (iv) the Buyer, the Company, and the other parties thereto shall have entered into a Stockholders' Agreement in the form of EXHIBIT C attached hereto and the same shall be in full force and effect; (v) the Buyer, the Company, and the other parties thereto shall have entered into a Registration Agreement in the form of EXHIBIT D attached hereto and the same shall be in full force and effect; (vi) the Parties shall have received all other material authorizations, consents, and approvals of governments and governmental agencies referred to in SECTION 3(b), and SECTION 4(c) above; (vii) the Company shall have furnished the Buyer with the following certificates: (A) certificates, executed by the proper official of each jurisdiction, as to the Good Standing and qualification to do business of the Company and its Subsidiaries in each jurisdiction where the Company or its Subsidiaries is currently qualified to do business; (B) a certificate from the Secretary of the Company confirming the existence, incorporation and Good Standing of the Company on the Closing Date, and attaching copies of its Organizational Documents, and resolutions authorizing the execution, delivery and 28 performance of this Agreement and all other documents and the taking of all action required thereunder or in connection therewith on behalf of the Company and its Subsidiaries; (viii) the Buyer shall have received from Foley & Lardner an opinion in form and substance as set forth in EXHIBIT B attached hereto, addressed to the Buyer, and dated as of the Closing Date; (ix) the Buyer shall have received the written resignations, effective as of the Closing, of each director of each of the Company's Subsidiaries (other than NCI Foods, LLC and W.S.C. Water Management Corp., and the two directors of Northland Cranberries Sales Corp. who reside in the U.S. Virgin Islands) and of each director, other than John Swendrowski, of the Company; (x) the Company shall have taken such action so that: (i) Marc J. Leder, Rodger R. Krouse, David Kreilein, Clarence E. Terry and Kevin J. Calhoun shall be been appointed to the Board of Directors of the Company, (ii) Marc J. Leder and Rodger R. Krouse shall each have been appointed Vice-Chairmen of the Board, (iii) Marc J. Leder and Rodger R. Krouse shall have been appointed as the sole members of the Board of Directors of each of the Company's Subsidiaries (other than NCI Foods, LLC, W.S.C. Water Management Corp. and Northland Cranberries Sales Corp.) and (iv) Marc J. Leder, Rodger R. Krouse, and Clarence E. Terry shall have been appointed to the Board of Directors of Northland Cranberries Sales Corp., all in accordance with any applicable Organizational Documents and in compliance with all applicable laws; (xi) all actions to be taken by the Company in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to the Buyer; (xii) the Company shall have obtained, in preparation for Closing, at the Company's own cost and expense, and shall have delivered to the Buyer, a commitment for an ALTA Owners Policy of Title Insurance, Form B-1970 (or other form of policy reasonably acceptable to the Buyer), for each parcel of Owned Real Property identified in Section 4(l)(i) of the Disclosure Schedule (the "TITLE COMMITMENTS"), issued by a title insurer satisfactory to the Buyer (the "TITLE INSURER"), in such amount as the Buyer and the Company reasonably determine to be the fair market value (including all improvements thereon), insuring the Buyer's interest in such parcel as of Closing, subject only to the Permitted Encumbrances and standard title insurance exceptions and requirements, which will be removed or satisfied on or before the Closing except as the same relate to matters appearing in title to the Bog Properties that require a survey for removal. The Company shall deliver at the time of delivery of the Title Commitments, copies of all documents of record referred to therein. The Company will provide the Buyer with title insurance policies ("TITLE POLICIES") on or before the Closing, from the Title Insurer based upon the Title Commitments. The Company will deliver to the Title Insurer all affidavits, undertakings and other title clearance documents reasonably necessary to issue the Title Policies and endorsements thereto. Each such Title Policy will be dated as of the date of closing and (a) insure title to the applicable parcels of real estate and all recorded easements benefitting such parcels, subject only to Permitted Encumbrances, (b) contain an "extended 29 coverage endorsement" insuring over the general exceptions contained customarily in such policies, excepting survey matters with respect to the Bog Properties, (c) with respect to the Facility Properties, contain an ALTA Zoning Endorsement 3.1, with parking (or equivalent) to the extent available in the jurisdiction in which the property is located, (d) with respect to the Facility Properties, contain an endorsement insuring that the parcel described in such Title Policy is the parcel shown on the survey delivered with respect to such parcel and a survey accuracy endorsement, (e) contain an endorsement insuring that each street adjacent to such parcel is a public street and that there is direct and unencumbered pedestrian and vehicular access to such street from such parcel, (f) with respect to the Facility Properties, if the real estate covered by such policy consists of more than one record parcel, contain a "contiguity" endorsement insuring that all of the record parcels are contiguous to one another, (g) contain a non-imputation endorsement, (h) contain a tax number endorsement and (i) contain such other endorsements as the Buyer and the Buyer's lender, if any, may reasonably request. (xiii) The Company has procured, at its own cost and expense, in preparation for the Closing, and shall have delivered to the Buyer, current surveys or existing surveys accompanied with Affidavits of no change of each parcel of the Owned Real Property identified in Section 4(l)(i) of the Disclosure Schedule constituting a Facility Property, prepared by a licensed surveyor, satisfactory to the Buyer, and conforming to 1999 ALTA/ACSM Minimum Detail Requirements for Urban Land Title Surveys, and such standards as the Title Insurer may require as a condition to the removal of any survey exceptions from the Title Policy, and certified to the Buyer, the Buyer's lender and the Title Insurer. (xiv) the Company and its Subsidiaries shall have obtained and delivered to the Buyer an estoppel certificate with respect to each of the Leases, dated no more than 30 days prior to the Closing Date, from the other party to such Lease, in form and substance satisfactory to the Buyer; (xv) no damage, destruction, infestation or other change or casualty has occurred with respect to any of the Real Property or any portion thereof that, individually or in the aggregate, would have a material adverse effect on the use or occupancy of the Real Property or the operation of the business of the Company and its Subsidiaries; (xvi) the Company shall have effected a one for four (1:4) reverse stock split of its Class A Common Stock and Class B Common Stock; (xvii) each holder of Class B Common Stock shall have converted all of his, her or its shares of Class B Common Stock into Class A Common Stock, such that immediately following the Closing there are no issued or outstanding shares of Class B Common Stock; (xviii) the Company shall have entered into written agreements with the vendors, suppliers or other creditors set forth on EXHIBIT E attached hereto, which agreements shall be in form and substance satisfactory to the Buyer in its sole discretion; (xix) the Company's Board of Directors and / or Special Committee thereof shall have received a fairness opinion from Rabobank International; 30 (xx) the Company and the Buyer (or its Affiliate) shall have executed a management services agreement in form and substance satisfactory to the Buyer in its sole discretion; (xxi) since August 31, 2001, no change, occurrence or development with respect to the Company or its Subsidiaries that was not disclosed in the SEC Documents filed prior to the date of this Agreement or in the Disclosure Schedule shall have occurred or become known to the Buyer that has had or could reasonably be expected to have a material adverse effect on the Company's or any of its Subsidiaries' business, properties, assets, results, operations, or conditions (financial or other), either alone or in the aggregate. (xxii) the Management Agreement shall have been terminated; (xxiii) the Severance and Stay Bonus Plan shall have been terminated; (xxiv) the Buyer shall have received delivery of certificates for the Shares as set forth hereunder; (xxv) the Company shall have obtained on terms and conditions satisfactory to the Buyer all of the financing it needs in order to consummate the transactions contemplated hereby and, together with the Cash Purchase Price, fund the working capital requirements of the Company and its Subsidiaries after the Closing; (xxvi) the results of the Buyer's conversations with the Company's customers shall be satisfactory to the Buyer in the Buyer's sole discretion; (xxvii) the Company's Bylaws shall have been amended in form and substance satisfactory to the Buyer in its sole discretion; (xxviii) the Company shall have taken such action so that Marc J. Leder, Rodger R. Krouse, David Kreilein, M. Steven Liff, Clarence E. Terry and C. Deryl Couch shall have been appointed officers of the Company; (xxix) the Company shall deliver to the Buyer Phase I reports for the Facility Properties satisfactory to the Buyer in the Buyer's sole discretion; and (xxx) the Company and the other parties to the Assignment, Assumption and Release Agreements shall have executed the Assignment, Assumption and Release Agreements in form and substance satisfactory to the Buyer in its sole discretion. The Buyer may waive any condition specified in this SECTION 5(a) if it executes a writing so stating at or prior to the Closing. (b) CONDITIONS TO OBLIGATION OF THE COMPANY. The obligation of the Company to consummate the transactions to be performed by them in connection with the Closing is subject to satisfaction of the following conditions: 31 (i) the representations and warranties set forth in ARTICLE 3 above shall be true and correct in all material respects (except to the extent that any such representation or warranty is qualified by any materiality standard, in which case such representation and warranty shall be true and correct in all respects) at and as of the Closing Date; (ii) the Buyer shall have delivered to the Company the consideration required under SECTION 2(b) hereof and shall have performed and complied with all of its covenants hereunder in all material respects through the Closing; (iii) no action, suit, or proceeding shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect); (iv) the Buyer shall have received all other material authorizations, consents, and approvals of governments and governmental agencies referred to in SECTION 3(b) and SECTION 4(c) above; (v) the Buyer shall have assigned all of the Assignment, Assumption and Release Agreements to the Company and the same shall be in full force and effect; (vi) the Management Agreement and the Severance and Stay Bonus Plan shall be terminated and, in consideration therefor, the persons set forth on EXHIBIT F attached hereto shall have received the payments set forth opposite their respective names on such EXHIBIT F; (vii) the Company's 2001 Stock Option Plan shall have been adopted and options for 4.929% of the fully diluted post transaction equity ownership of the Company shall have been granted; and (viii) Rabobank International shall have been paid its fees, and reimbursed its expenses, as described in SECTION 4(d) hereof. The Company may waive any condition specified in this SECTION 5(b), except the condition specified in SECTION 5(b)(viii) if they execute a writing so stating at or prior to the Closing. 6. REMEDIES FOR BREACHES OF THIS AGREEMENT. (a) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All of the representations and warranties of the Company contained in SECTION 4 above shall survive the Closing hereunder (even if the Buyer knew or had reason to know of any misrepresentation or breach of warranty at the time of Closing) and continue in full force and effect through the fifteenth (15th) day after the date of the issuance by the Company's auditors of its audit opinion/report on the consolidated financial statements of the Company for the fiscal year ended August 31, 2002; PROVIDED, HOWEVER, that the representations and warranties contained in SECTION 3(b) and SECTIONS 4(a), (b), (c), (d), (e), (k), and (w) above shall survive the Closing hereunder (even if the Buyer knew or 32 had reason to know of any misrepresentation or breach of warranty at the time of Closing) and continue in full force and effect until expiration of the applicable period or statute of limitations (including any extensions thereto). (b) INDEMNIFICATION PROVISIONS FOR BENEFIT OF THE BUYER. In the event the Company breaches any of its representations, warranties, and covenants contained herein, and, if there is an applicable survival period pursuant to SECTION 6(a) above, provided that the Buyer makes a written claim for indemnification against the Company within such survival period, then the Company agrees to indemnify the Buyer from and against the entirety of any Adverse Consequences the Buyer may suffer through and after the date of the claim for indemnification (including any Adverse Consequences the Buyer may suffer after the end of any applicable survival period) resulting from, arising out of, relating to, in the nature of, or caused by the breach PROVIDED, HOWEVER, that the Company shall not have any obligation to indemnify the Buyer from and against any Adverse Consequences resulting from, arising out of, relating to, in the nature of, or caused by the breach of any representation or warranty of the Company other than the Fundamental Representations and Warranties until the Buyer has suffered Adverse Consequences by reason of all such breaches in excess of a $500,000 aggregate threshold at which point the Company will be obligated to indemnify the Buyer from and against all such Adverse Consequences in excess of a $175,000 aggregate deductible. (c) DETERMINATION OF ADVERSE CONSEQUENCES. The Parties shall make appropriate adjustments for tax benefits actually realized and insurance coverage proceeds actually received by the Buyer in determining Adverse Consequences for purposes of this SECTION 6. For the purposes of determining whether the Buyer is able to seek indemnification from the Company under this SECTION 6 for a breach by the Company of any representation and warranty, the use of the terms "material", "materially", materiality", "material adverse effect" or any similar words or phrases in this Agreement and on any schedule or exhibit hereto shall be disregarded and any and all claims for such indemnification shall be determined as if no such terms were present in the representation or warranty with respect to which such indemnification is sought. (d) MATTERS INVOLVING THIRD PARTIES. (i) If any third party shall notify any Party (the "INDEMNIFIED PARTY") with respect to any matter (a "THIRD PARTY CLAIM") which may give rise to a claim for indemnification against any other Party (the "INDEMNIFYING Party") under this SECTION 6, then the Indemnified Party shall promptly notify the Indemnifying Party thereof in writing; PROVIDED, HOWEVER, that no delay on the part of the Indemnified Party in notifying the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent) the Indemnifying Party thereby is prejudiced. (ii) The Indemnifying Party will have the right to assume the defense of the Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party at any time within 15 days after the Indemnified Party has given notice of the Third Party Claim; PROVIDED, HOWEVER, that the Indemnifying Party must conduct the defense of the Third Party Claim actively and diligently thereafter in order to preserve its rights in this regard; and PROVIDED FURTHER that the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third Party Claim. 33 (iii) So long as the Indemnifying Party has assumed and is conducting the defense of the Third Party Claim in accordance with SECTION 6(d)(ii) above, (A) the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third Party Claim, (B) the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Party (not to be withheld unreasonably) unless the judgment or proposed settlement involves only the payment of money damages by one or more of the Indemnifying Parties and does not impose an injunction or other equitable relief upon the Indemnified Party and (C) the Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnifying Party (not to be withheld unreasonably). (iv) In the event none of the Indemnifying Parties assumes and conducts the defense of the Third Party Claim in accordance with SECTION 6(d)(ii) above, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the Third Party Claim in any manner it reasonably may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith), (B) the Indemnifying Parties will reimburse the Indemnified Party promptly and periodically for the costs of defending against the Third Party Claim (including attorneys' fees and expenses), and (C) the Indemnifying Parties will remain responsible for any Adverse Consequences the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim to the fullest extent provided in this SECTION 6. (e) ADDITIONAL MATTERS. All indemnification obligations of the Company, other than Third Party Claims, shall be satisfied by the payment of cash or, at the sole option of the Buyer in each instance, the issuance of additional shares of Class A Common Stock, valued at a price per share equal to the original cost of the Shares (on a per share basis) without taking into consideration the value of Assignment, Assumption and Release Agreements. 7. TAX MATTERS. All transfer, documentary, sales, use, stamp, registration and other such Taxes, and all conveyance fees, recording charges and other fees and charges (including any penalties and interest) incurred in connection with the consummation of the transactions contemplated by this Agreement shall be borne by the Company. 8. MISCELLANEOUS. (a) PRESS RELEASES AND PUBLIC ANNOUNCEMENTS. No Party shall issue any press release or make any public announcement relating to the subject matter of this Agreement without the prior written approval of the Buyer and the Company; PROVIDED, HOWEVER, that any Party may make any public disclosure it believes in good faith is required by applicable law (in which case the disclosing Party will use its best efforts to advise the other Parties prior to making the disclosure). (b) NO THIRD-PARTY BENEFICIARIES. Except as provided pursuant to SECTION 8(p) hereof, this Agreement shall not confer any rights or remedies upon any Person other than the Parties and their respective successors and permitted assigns. 34 (c) ENTIRE AGREEMENT. This Agreement (including the documents referred to herein) constitutes the entire agreement among the Parties and supersedes any prior understandings, agreements, or representations by or among the Parties, written or oral, to the extent they related in any way to the subject matter hereof. (d) SUCCESSION AND ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit of the Parties named herein and their respective successors and permitted assigns. No Party may assign either this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of the Buyer and the Company; PROVIDED, HOWEVER, that the Buyer may (i) assign any or all of its rights and interests hereunder to one or more of its Affiliates and (ii) designate one or more of its Affiliates to perform its obligations hereunder (in any or all of which cases the Buyer nonetheless shall remain responsible for the performance of all of its obligations hereunder). (e) COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument. (f) HEADINGS. The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. (g) NOTICES. All notices, requests, demands, claims, and other communications hereunder will be in writing. Any notice, request, demand, claim, or other communication hereunder shall be deemed duly given if (and then two business days after) it is sent by registered or certified mail, return receipt requested, postage prepaid, and addressed to the intended recipient as set forth below: If to the Company: Northland Cranberries, Inc. 800 First Avenue South P.O. Box 8020 Wisconsin Rapids, WI 54495-8020 Attn: John Swendrowski Fax: (715) 422-6844 Copy to: Foley & Lardner 777 East Wisconsin Avenue Milwaukee, WI 53202-5367 Attn: Jeffrey J. Jones Fax: (414) 297-4900 35 If to the Buyer: Sun Northland, LLC c/o Sun Capital Partners, Inc. 5200 Town Center Circle, Suite 470 Boca Raton, FL 33486 Attn: C. Deryl Couch Fax: (561) 394-0540 Copy to: Kirkland & Ellis 200 East Randolph Drive Chicago, IL 60601 Attn: Douglas C. Gessner Fax: (312) 861-2200 Any Party may send any notice, request, demand, claim, or other communication hereunder to the intended recipient at the address set forth above using any other means (including personal delivery, expedited courier, messenger service, telecopy, telex, ordinary mail, or electronic mail), but no such notice, request, demand, claim, or other communication shall be deemed to have been duly given unless and until it actually is received by the intended recipient. Any Party may change the address to which notices, requests, demands, claims, and other communications hereunder are to be delivered by giving the other Parties notice in the manner herein set forth. (h) GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Wisconsin without giving effect to any choice or conflict of law provision or rule (whether of the State of Wisconsin or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Wisconsin. (i) AMENDMENTS AND WAIVERS. No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and signed by the Buyer and the Company. No waiver by any Party of any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence. (j) SEVERABILITY. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. (k) EXPENSES. The Company shall pay or cause to be paid at Closing (i) all reasonable out-of-pocket fees and expenses incurred by the Buyer and its Affiliates and (ii) the reasonable out-of-pocket legal fees of the Company each in connection with the transactions contemplated by this Agreement (including, without limitation, reasonable fees and disbursements of counsel and consultants). The fees and expenses covered by this SECTION 8(k) 36 are separate from and in addition to, and in no way shall limit, the fees and expenses to be paid to the Buyer pursuant to the management services agreement. (l) CONSTRUCTION. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Any reference to any federal, state, local, or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The word "including" shall mean including without limitation. The parties intend that each representation, warranty, and covenant contained herein shall have independent significance. If any Party has breached any representation, warranty, or covenant contained herein in any respect, the fact that there exists another representation, warranty, or covenant relating to the same subject matter (regardless of the relative levels of specificity) which the Party has not breached shall not detract from or mitigate the fact that the Party is in breach of the first representation, warranty, or covenant. (m) INCORPORATION OF EXHIBITS, ANNEXES, AND SCHEDULES. The Exhibits, Annexes, and Schedules identified in this Agreement are incorporated herein by reference and made a part hereof. (n) SUBMISSION TO JURISDICTION. Each Party hereto submits to the jurisdiction of any state or federal court sitting in Chicago, Illinois, in any action or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and determined in any such court. Each Party also agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court. Each Party hereto waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety, or other security that might be required of any other Party with respect thereto. Any Party may make service on any other Party by sending or delivering a copy of the process to the Party to be served at the address and in the manner provided for the giving of notices in SECTION 8(g) above. Nothing in this SECTION 8(N), however, shall affect the right of any Party to bring any action or proceeding arising out of or relating to this Agreement in any other court or to serve legal process in any other manner permitted by law or at equity. Each Party agrees that a final judgment in any action or proceeding so brought shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by law or at equity. (o) LEGAL FEES. If any party to this Agreement seeks to enforce the terms and provisions of this Agreement, then the prevailing party in such action shall be entitled to recover from the non-prevailing party, all costs incurred in connection with such action, including without limitation reasonable fees, expenses and costs incurred at the trial court, all appellate courts and during negotiations. (p) INDEMNIFICATION AND INSURANCE. The Buyer agrees that for a period of six years from the Closing Date it will maintain all rights to indemnification now existing in favor of the current or former directors, officers, and employees of the Company as provided in the Company's articles of incorporation and bylaws or otherwise in effect under any agreement on the date of this Agreement. In addition, the Buyer agrees that the articles of incorporation and 37 bylaws of the Company shall contain the provisions with respect to indemnification set forth in the Company's articles of incorporation and bylaws on the date hereof, which provisions shall not be amended, repealed or otherwise modified for a period of six years after the Closing Date in any manner that would adversely affect the rights thereunder of individuals who at any time prior to the Closing Date were directors or officers of the Company in respect of actions or omissions occurring at or prior to the Closing Date (including, without limitation, the transactions contemplated by this Agreement), unless such modification is required by law. Notwithstanding the six-year period specified in the foregoing sentences, in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until disposition of any and all such claims. (i) The Company will at all times exercise the powers granted to it by its articles of incorporation, its bylaws, and by applicable law to indemnify and hold harmless to the fullest extent possible present or former directors, officers, and employees of the Company against any threatened or actual claim, action, suit, proceeding or investigation made against them arising from their service in such capacities (or service in such capacities for another enterprise at the request of the Company) prior to, and including the Closing Date, including, without limitation, with respect to matters relating to this Agreement. (ii) The Buyer agrees that the Company shall cause to be maintained in effect for not less than six years from the Closing Date the current policies of the directors' and officers' liability insurance maintained by the Company with respect to matters occurring at or prior to the Closing Date (including, without limitation, the transactions contemplated by this Agreement); provided that the Company may substitute therefor policies of at least the same coverage containing terms and conditions which are no less advantageous and provided that such substitution shall not result in any gaps or lapses in coverage with respect to matters occurring prior to the Closing Date; and provided, further, that the Company shall not be required to pay an annual premium in excess of 200% of the last annual premium paid by the Company prior to the date hereof and if the Company is unable to obtain the insurance required by this SECTION 8(p)(ii) it shall obtain as much comparable insurance as possible for an annual premium equal to such maximum amount. (iii) This SECTION 8(p) is intended to benefit the current and former directors, officers, and employees of the Company and shall be binding on all successors and assigns of the Buyer and the Company. (q) ISRA COVENANT. The Company shall submit to the New Jersey Department of Environmental Protection ("NJDEP") within 30 days after Closing, true, accurate and complete copies of all filings required pursuant to the New Jersey Industrial Site Recovery Act ("ISRA") (N.J.S.A. 13:1k-6 ET SEQ.) as necessary to obtain formal ISRA nonapplicability determinations from NJDEP for the real properties and operations of the Company in Bridgeton, New Jersey. (r) TAX COVENANT. The Company shall elect under Treasury Regulation Section 1.382-6(b) to close its books as of the end of the Closing Date with respect to the ownership change (within the meaning of Code Section 382) occurring pursuant to this Agreement. 38 (s) SEVERANCE PAY COVENANT. The Company agrees that if prior to the one year anniversary of the date hereof, any Executive's employment with the Company is terminated by the Company or its successors in interest without cause, such Executive shall be entitled to continue to receive his then-current base salary, which shall be no lower than his base salary as of the date hereof, payable in regular installments as special severance payments for six-months from the date of termination; provided, if such Executive breaches the provisions of any non-solicitation or confidentiality covenants he has made (or shall make) to the Company, the Company shall have no obligation to make (or continue to make) severance payments to such Executive. ***** IN WITNESS WHEREOF, the Parties hereto have executed this Stock Purchase Agreement on as of the date first above written. SUN NORTHLAND, LLC By: /s/ M. Steven Liff ------------------------ Title: Vice President ------------------------ NORTHLAND CRANBERRIES, INC. By: /s/ John Swendrowski ------------------------ Title: Chief Executive Officer ------------------------ 40 EX-99.D 6 a2063964zex-99_d.txt REGISTRATION AGREE REGISTRATION AGREEMENT THIS REGISTRATION AGREEMENT (this "AGREEMENT") is made as of November 6, 2001, by and among Northland Cranberries, Inc., a Wisconsin corporation (the "COMPANY"), Sun Northland, LLC, a Delaware limited liability company ("SUN"), and each of the other Persons listed on the signature pages attached hereto (the "OTHER INVESTORS"). Sun and the Other Investors are collectively referred to herein as the "STOCKHOLDERS," and are individually referred to herein as a "STOCKHOLDER." Otherwise undefined capitalized terms used herein are defined in SECTION 9 hereof. NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement hereby agree as follows: 1. Demand Registrations. (a) REQUESTS FOR REGISTRATION. At any time, the holders of at least a majority of the Sun Registrable Securities may request registration under the Securities Act of all or any portion of such Sun Registrable Securities on Form S-1 or any similar long-form registration ("LONG-FORM REGISTRATIONS") or, if available, on Form S-2 or S-3 or any similar short-form registration ("SHORT-FORM REGISTRATIONS"). All registrations requested pursuant to this SECTION 1(a) are referred to herein as "DEMAND REGISTRATIONS." Each request for a Demand Registration shall specify the approximate number of Registrable Securities requested to be registered and the anticipated per share price range for such offering. Within ten days after receipt of any such request, the Company shall give written notice of such requested registration to all other holders of Registrable Securities and, subject to SECTION 1(d) below, will include in such registration, in addition to the Sun Registrable Securities that are requested to be registered pursuant hereto, all other Registrable Securities with respect to which the Company has received written requests for inclusion therein within 15 days after the receipt of the Company's notice. (b) LONG-FORM REGISTRATIONS. The holders of a majority of the Sun Registrable Securities shall be entitled to request a maximum of four (4) Long-Form Registrations. The Company will pay all Registration Expenses (as defined below in SECTION 5) in connection with each such Long-Form Registration. All Long-Form Registrations shall be underwritten registrations. (c) SHORT-FORM REGISTRATIONS. In addition to the Long-Form Registrations provided pursuant to SECTION 1(b), the holders of a majority of the Sun Registrable Securities shall be entitled to request an unlimited number of Short-Form Registrations in which the Company will pay all Registration Expenses. Demand Registrations will be Short-Form Registrations whenever the Company is permitted to use any applicable short form. The Company shall use its best efforts to make Short-Form Registrations on Form S-3 available for the sale of Registrable Securities, if the Company is so eligible. The Company shall not be obligated to effect a Short-Form Registration through an underwritten offering. (d) PRIORITY ON DEMAND REGISTRATIONS. The Company will not include in any Demand Registration any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities included in such registration. If a Demand Registration is an underwritten offering and the managing underwriters advise the Company in writing that, in their opinion, the number of Registrable Securities and, if permitted hereunder, other securities requested to be included in such offering, exceeds the number of Registrable Securities and other securities, if any, which can be sold therein without adversely affecting the marketability, proposed offering price, timing, distribution method or probability of success of the offering, the Company will include in such registration (i) first, the number of Registrable Securities requested to be included in such registration which in the opinion of such underwriters can be sold without adverse effect, pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder, and (ii) second, other securities requested to be included in such Demand Registration, pro rata among the holders of such securities on the basis of the number of such securities owned by each such holder. (e) RESTRICTIONS ON DEMAND REGISTRATIONS. The Company will not be obligated to effect any Demand Registration within six months after the effective date of a previous Long-Form Registration with respect to the Company. The Company may postpone, for up to six months (from the date of the request), the filing or the effectiveness of a registration statement for a Demand Registration if (i) the Company's board of directors believes that such Demand Registration would reasonably be expected to have an adverse effect on any proposal or plan by the Company or any Subsidiary thereof to engage in any underwritten public offering of its securities for its own account, acquisition of assets (other than in the ordinary course of business) or any stock purchase, merger, consolidation, tender offer, reorganization, or similar transaction, or (ii) the Company is in possession of material nonpublic information concerning it or its business and affairs and the Company's board of directors determines in good faith that the prompt public disclosure of such information in a registration statement would reasonably be expected to have an adverse effect on the Company; provided, however, that in any such events, the holders of Registrable Securities initially requesting such Demand Registration will be entitled to withdraw such request and, if such request is withdrawn, such Demand Registration shall be treated as if it had never been made in the first instance, and the Company will pay all Registration Expenses in connection with such registration. The Company may delay a Demand Registration hereunder only once in any 12-month period. (f) SELECTION OF UNDERWRITERS. The holders of a majority of the Registrable Securities initially requesting registration hereunder will have the right to select the investment banker(s) and manager(s) to administer the offering under such Demand Registration, subject to the Company's approval, which will not be unreasonably withheld. (g) OTHER REGISTRATION RIGHTS. Except as provided in this Agreement, the Company will not grant to any Persons the right to request that the Company register any equity securities of the Company, or any securities convertible into or exchangeable or exercisable for any such securities, without the prior written consent of the holders of at least a majority of the Registrable Securities. 2 2. PIGGYBACK REGISTRATIONS. (a) RIGHT TO PIGGYBACK. Whenever the Company proposes to register any of its equity securities under the Securities Act (other than pursuant to a Demand Registration or a registration on Form S-4 or S-8 or any successor or similar forms) and the registration form to be used may be used in compliance with applicable law for the registration of Registrable Securities (a "PIGGYBACK REGISTRATION"), whether or not for sale for its own account, the Company will give prompt written notice to all holders of Registrable Securities of its intention to effect such a registration and, subject to SECTIONS 2(c) AND 2(d) below, will include in such registration all Registrable Securities with respect to which the Company has received written requests for inclusion therein within 20 days after the receipt of the Company's notice. (b) PIGGYBACK EXPENSES. In all Piggyback Registrations, the Registration Expenses of the holders of Registrable Securities will be paid by the Company. (c) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback Registration is an underwritten primary registration on behalf of the Company, and the managing underwriters advise the Company in writing (with a copy to each party hereto requesting registration of Registrable Securities) that, in their opinion, the number of securities requested to be included in such registration exceeds the number which can be sold in such offering without adversely affecting the marketability, proposed offering price, timing, distribution method or probability of success of the offering, then the Company will include in such registration (i) first, the securities that the Company proposes to sell, (ii) second, the Registrable Securities requested to be included in such registration, pro rata among the holders thereof on the basis of the number of Registrable Securities owned by each such holder, and (iii) third, other securities requested to be included in such registration pro rata among the holders of such securities on the basis of the number of such other securities owned by each such holder. (d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's securities (it being understood that secondary registrations on behalf of holders of Registrable Securities are addressed in Section 1 above rather than in this Section 2(d)), and the managing underwriters advise the Company in writing that, in their opinion, the number of securities requested to be included in such registration exceeds the number which can be sold in such offering without adversely affecting the marketability, proposed offering price, timing, distribution method or probability of success of the offering, then the Company will include in such registration (i) first, the securities requested to be included therein by the holders requesting such registration, (ii) second, the Registrable Securities requested to be included in such registration, pro rata among the holders of such Registrable Securities on the basis of the number of Registrable Securities owned by each such requesting holder, and (iii) third, other securities requested to be included in such registration pro rata among the holders of such other securities on the basis of the number of such securities owned by each such holder. (e) SELECTION OF UNDERWRITERS. If any Piggyback Registration is an underwritten offering, then the selection of the investment banker(s) and manager(s) for the offering shall be made at the Company's sole discretion. 3 (f) WITHDRAWAL BY COMPANY. If, at any time after giving notice of its intention to register any of its securities as set forth in SECTION 2(a) and before the effective date of such registration statement filed in connection with such registration, the Company shall determine, for any reason, not to register such securities, the Company may, at its sole discretion, give written notice of such determination to each holder of Registrable Securities and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such registration (but not from its obligation to pay the Registration Expenses in connection therewith as provided herein). 3. HOLDBACK AGREEMENTS. (a) Each holder of Registrable Securities agrees not to effect any public sale or distribution (including sales pursuant to Rule 144) of equity securities of the Company, or any securities, options, or rights convertible into or exchangeable or exercisable for such securities, during the seven days before and the 180-day period beginning on the effective date of any underwritten public offering of the Company's equity securities (including Demand and Piggyback Registrations) (except as part of such underwritten registration), unless the underwriters managing the registered public offering otherwise agree. If any holder of Registrable Securities is released from the requirements of this SECTION 3(a), all other holders of Registrable Securities shall be released from the requirements of this SECTION 3(a) on the same terms and conditions as such holder. (b) The Company agrees (i) not to effect any public sale or distribution of its equity securities, or any securities convertible into or exchangeable or exercisable for such securities, during the seven days before and during the 180-day period beginning on the effective date of any underwritten public offering of the Company's equity securities (including Demand and Piggyback Registrations) (except as part of such underwritten registration or pursuant to registrations on Form S-4 or S-8 or any successor form), unless the underwriters managing the registered public offering otherwise agree, and (ii) to cause each holder of its Common Stock, or any securities convertible into or exchangeable or exercisable for Common Stock, purchased or otherwise acquired from the Company at any time after the date of this Agreement (other than in a registered public offering, including, without limitation, an offering registered on Form S-8 or any successor form) to agree not to effect any public sale or distribution (including sales pursuant to Rule 144) of any such securities during any such period (except as part of such underwritten registration, if otherwise permitted), unless the underwriters managing the registered public offering otherwise agree. 4. REGISTRATION PROCEDURES. Whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement, the Company will use its best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof and, pursuant thereto, the Company will as expeditiously as possible: (a) prepare and (within 60 days after the end of the period within which requests for registration may be given to the Company) file with the Securities and Exchange Commission a registration statement with respect to such Registrable Securities and thereafter use its best efforts to cause such registration statement to become effective (provided that, before 4 filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the counsel selected by the holders of a majority of the Registrable Securities covered by such registration statement copies of all such documents proposed to be filed, which documents will be subject to review of such counsel); (b) prepare and file with the Securities and Exchange Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period of either (i) not less than six months (subject to extension pursuant to SECTION 7(b)) or, if such registration statement relates to an underwritten offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sales of Registrable Securities by an underwriter or dealer, or (ii) such shorter period as will terminate when all of the securities covered by such registration statement during such period have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement (but, in any event, not before the expiration of any longer period required under the Securities Act), and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof set forth in such registration statement; (c) furnish to each seller of Registrable Securities such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller; (d) use its best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as any seller reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subsection, (ii) subject itself to taxation in any such jurisdiction, or (iii) consent to general service of process in any such jurisdiction); (e) notify each seller of such Registrable Securities, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon the discovery of the happening of any event as a result of which, the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and, at the request of any such seller, the Company will prepare and furnish to such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading in the light of the circumstances under which they were made; 5 (f) use best efforts to cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if not so listed, to be listed on a securities exchange or the National Association of Securities Dealers ("NASD") automated quotation system and, if listed on the NASD automated quotation system, use its best efforts to secure designation of all such Registrable Securities covered by such registration statement as a "national market system security" of The Nasdaq Stock Market within the meaning of Rule 11Aa2-1 of the Securities and Exchange Commission or, failing that, to secure The Nasdaq Stock Market's authorization for such Registrable Securities and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with the NASD; (g) use best efforts to provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement; (h) enter into such customary agreements (including underwriting agreements in customary form) and take all such other actions as the holders of a majority of the Registrable Securities being sold or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split, combination of shares, recapitalization, or reorganization); (i) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement, and any attorney, accountant, or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate and business documents and properties of the Company as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers, directors, employees, agents, representatives, and independent accountants to supply all such information reasonably requested by any such seller, underwriter, attorney, accountant, or agent; (j) otherwise use its best efforts to comply with all applicable rules and regulations of the Securities and Exchange Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least 12 months, beginning with the first day of the Company's first full calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of SECTION 11(a) of the Securities Act and Rule 158 thereunder; (k) permit any holder of Registrable Securities which holder, in its sole and exclusive judgment, might be deemed to be an underwriter or a controlling person of the Company to participate in the preparation of such registration or comparable statement and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such holder and its counsel should be included; (l) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any securities included in such registration statement for sale in any jurisdiction, the Company will use its reasonable best efforts promptly to obtain the withdrawal of such order; 6 (m) use its reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities; (n) use best efforts to obtain a cold comfort letter from the Company's independent public accountants in customary form and covering such matters of the type customarily covered by cold comfort letters, which letter shall be addressed to the underwriters, and the Company shall use its reasonable best efforts to cause such cold comfort letter to also be addressed to the holders of such Registrable Securities; and (o) use best efforts to obtain an opinion from the Company's outside counsel in customary form and covering such matters of the type customarily covered by such opinions, which opinion shall be addressed to the underwriters and the holders of such Registrable Securities. If any such registration or comparable statement refers to any holder by name or otherwise as the holder of any securities of the Company and if such holder, in its sole and exclusive judgment, is or might be deemed to be an underwriter or a controlling person of the Company, such holder shall have the right to require (i) the insertion therein of language, in form and substance satisfactory to such holder and presented to the Company in writing, to the effect that the holding by such holder of such securities is not to be construed as a recommendation by such holder of the investment quality of the Company's securities covered thereby, and that such holding does not imply that such holder shall assist in meeting any future financial requirements of the Company, or (ii) in the event that such reference to such holder by name or otherwise is not required by the Securities Act or any similar federal or state statute then in force, the deletion of the reference to such holder; provided that, with respect to this clause (ii), such holder shall furnish to the Company an opinion of counsel to such effect, which opinion and counsel shall be reasonably satisfactory to the Company. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish the Company with such information regarding such seller and the distribution of such securities as the Company may from time to time reasonably request in writing. 5. REGISTRATION EXPENSES. (a) All expenses incident to the Company's performance of or compliance with this Agreement, including, without limitation, all registration and filing fees, fees and expenses of compliance with securities or blue sky laws, printing expenses, messenger and delivery expenses, fees and disbursements of custodians, fees and disbursements of counsel for the Company, and all independent certified public accountants, underwriters (excluding discounts and commissions), and other Persons retained by the Company (all such expenses being herein called "REGISTRATION EXPENSES"), will be borne as provided in this Agreement, except that the Company will, in any event, pay its internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit or quarterly review, the expense of any liability insurance, and the expenses and fees for listing the securities to be registered on each securities exchange on which similar securities issued by the Company are then listed or, if none are so 7 listed, on a securities exchange or the NASD automated quotation system. The Company shall have no obligation to pay any underwriting discounts or selling commissions attributable to the Registrable Securities being sold by the holders thereof, which underwriting discounts or selling commissions shall be borne by such holders. (b) In connection with each Demand Registration and each Piggyback Registration, the Company shall reimburse the holders of Registrable Securities included in such registration for the reasonable fees and disbursements of one counsel chosen by the holders of a majority of the Registrable Securities included in such registration, and if a majority of the Registrable Securities include in such registration are not Other Registrable Securities then one counsel chosen by the holders are a majority of the Other Registrable Securities included in such registration. (c) To the extent Registration Expenses are not required to be paid by the Company, each holder of securities included in any registration hereunder will pay those Registration Expenses allocable to the registration of such holder's securities so included, and any Registration Expenses not so allocable will be borne by all sellers of securities included in such registration in proportion to the aggregate selling price of each seller's securities to be so registered. 6. INDEMNIFICATION. (a) The Company agrees to indemnify and hold harmless, to the full extent permitted by law, each holder of Registrable Securities, its officers, directors, member, agents, and employees and each Person who controls such holder (within the meaning of the Securities Act) against any and all losses, claims, damages, liabilities, joint or several, together with reasonable costs and expenses (including reasonable attorney's fees), to which such indemnified party may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages, or liabilities (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of, are based upon, are caused by, or result from (i) any untrue or alleged untrue statement of material fact contained (A) in any registration statement, prospectus, or preliminary prospectus or any amendment thereof or supplement thereto, or (B) in any application or other document or communication (in this SECTION 6 collectively called an "APPLICATION") executed by or on behalf of the Company or based upon written information furnished by or on behalf of the Company filed in any jurisdiction in order to qualify any securities covered by such registration statement under the "blue sky" or securities laws thereof, or (ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, and the Company will reimburse such holder and each such director, officer, member, agent and employee for any legal or any other expenses incurred by them in connection with investigating or defending any such loss, claim, liability, action, or proceeding; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof), or expense arises out of, is based upon, is caused by, or results from an untrue statement or alleged untrue statement, or omission or alleged omission, made in such registration statement, any such prospectus or preliminary prospectus or any amendment or supplement thereto, or in any application, in reliance upon, and in conformity with, written information prepared and furnished to the Company by such holder expressly for use therein or by such 8 holder's failure to deliver a copy of the registration statement or prospectus or any amendments or supplements thereto after the Company has furnished such holder with a sufficient number of copies of the same. In connection with any underwritten offering, the Company will indemnify such underwriters, their officers and directors, and each Person who controls such underwriters (within the meaning of the Securities Act) to the same extent as provided above with respect to the indemnification of the holders of Registrable Securities. (b) In connection with any registration statement in which a holder of Registrable Securities is participating, each such holder will furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such registration statement or prospectus and, to the full extent permitted by law, will indemnify and hold harmless the other holders of Registrable Securities and the Company, and their respective directors, officers, agents, and employees and each other Person who controls the Company (within the meaning of the Securities Act) against any losses, claims, damages, liabilities, joint or several, together with reasonable costs and expenses (including reasonable attorney's fees), to which such indemnified party may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages, or liabilities (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of, are based upon, are caused by, or result from (i) any untrue or alleged untrue statement of material fact contained in the registration statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or in any application, or (ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or omission is made in such registration statement, any such prospectus or preliminary prospectus or any amendment or supplement thereto, or in any application, in reliance upon and in conformity with written information prepared and furnished to the Company by such holder expressly for use therein; provided, however, that the obligation to indemnify will be individual to each holder and will be limited to the net amount of proceeds received by such holder from the sale of Registrable Securities pursuant to such registration statement. (c) Any Person entitled to indemnification hereunder will (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any Person's right to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party), and (ii) unless in such indemnified party's reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party will not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent will not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. 9 (d) The indemnifying party shall not, except with the approval of each indemnified party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to each indemnified party of a release from all liability in respect to such claim or litigation without any payment or consideration provided by such indemnified party. (e) If the indemnification provided for in this SECTION 6 is unavailable to, or is insufficient to hold harmless, an indemnified party under the provisions above in respect to any losses, claims, damages, or liabilities referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the sellers of Registrable Securities and any other sellers participating in the registration statement on the other hand from the sale of Registrable Securities pursuant to the registered offering of securities as to which indemnity is sought, or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the sellers of Registrable Securities and any other sellers participating in the registration statement on the other hand in connection with the registration statement on the other in connection with the statement or omissions which resulted in such losses, claims, damages, or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the sellers of Registrable Securities and any other sellers participating in the registration statement on the other hand shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) to the Company bear to the total net proceeds from the offering (before deducting expenses) to the sellers of Registrable Securities and any other sellers participating in the registration statement. The relative fault of the Company on the one hand and of the sellers of Registrable Securities and any other sellers participating in the registration statement on the other hand shall be determined by reference to, among other things, whether the untrue or alleged omission to state a material fact relates to information supplied by the Company or by the sellers of Registrable Securities or other sellers participating in the registration statement and the parties' relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission. (f) The Company and the sellers of Registrable Securities agree that it would not be just and equitable if contribution pursuant to this SECTION 6 were determined by pro rata allocation (even if the sellers of Registrable Securities were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages, and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this SECTION 6, no seller of Registrable Securities shall be required to contribute any amount in excess of the net proceeds received by such seller from the sale of Registrable Securities covered by the registration statement filed pursuant hereto. No person guilty of fraudulent misrepresentation (within the meaning of SECTION 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. 10 (g) The indemnification and contribution by any such party provided for under this Agreement shall be in addition to any other rights to indemnification or contribution which any indemnified party may have pursuant to law or contract and will remain in full force and effect regardless of any investigation made or omitted by or on behalf of the indemnified party or any officer, director, or controlling Person of such indemnified party and will survive the transfer of securities. 7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. (a) No Person may participate in any registration hereunder which is underwritten unless such Person (i) enters into and agrees to sell such Person's securities on the basis provided in customary underwriting arrangements approved by the Person or Persons entitled hereunder to approve such arrangements (including, without limitation, pursuant to the terms of any over-allotment or "green shoe" option requested by the managing underwriter(s); provided that no holder of Registrable Securities will be required to sell more than the number of Registrable Securities that such holder has requested the Company to include in any registration), and (ii) completes and executes all customary questionnaires, powers of attorney, indemnities, underwriting agreements, and other documents reasonably required under the terms of such underwriting arrangements. (b) Each Person that is participating in any registration hereunder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in SECTION 4(e) above, or upon any suspension by the Company, pursuant to a written insider trading compliance program of the Company, of the ability of all "insiders" covered by such program to transact in the Company's securities because of the existence of material non-public information, each holder of Registrable Securities included in any registration shall immediately discontinue disposition of such Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until such holder receives the supplemented or amended prospectus contemplated by SECTION 4(e) or the restriction on the ability of "insiders" to transact in the Company's securities is removed, as applicable, and, if so directed by the Company, each such holder will deliver to the Company all copies, other than permanent file copies then in such holder's possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event that the Company shall give any such notice, the applicable time period mentioned in SECTION 4(b) during which a Registration Statement is to remain effective shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to this SECTION 7 to and including the date when each seller of a Registrable Security covered by such registration statement shall have received the copies of the supplemented or amended prospectus contemplated by SECTION 4(e). 8. CURRENT PUBLIC INFORMATION. At all times after the Company has filed a registration statement with the Securities and Exchange Commission pursuant to the requirements of either the Securities Act or the Securities Exchange Act, the Company will file all reports required to be filed by it under the Securities Act and the Securities Exchange Act and the rules and regulations adopted by the Securities and Exchange Commission thereunder, and will take such further action as any holder or holders of Registrable Securities may reasonably request, all to the extent required to enable such holders to sell Registrable Securities pursuant to Rule 144 adopted by the Securities and Exchange Commission under the Securities Act (as such 11 rule may be amended from time to time) or any similar rule or regulation hereafter adopted by the Securities and Exchange Commission. 9. DEFINITIONS "BANK GROUP" shall mean U.S. Bank National Association, ARK CLO 2000-1 Limited, and St. Francis Bank, F.S.B. "COMMON STOCK" shall mean the Class A Common Stock, $0.01 par value per share, of the Company as constituted on the date hereof and any stock into which any such common stock shall have been changed or any stock resulting from any reclassification of any such common stock. "NASD" shall have the meaning set forth in SECTION 3(f). "OTHER REGISTRABLE SECURITIES" means (i) all shares of Common Stock of the Company originally issued, directly or indirectly, to any Other Investor, (ii) all shares of Common Stock of the Company issued or issuable, directly or indirectly, with respect to the securities referred to in clause (i) above upon exercise, conversion, or exchange or by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation, or other reorganization, and (iii) any other shares of Common Stock of the Company held by Persons holding securities described in clauses (i) and (ii) above. As to any particular Other Registrable Securities, such securities shall cease to be Other Registrable Securities when they have (a) been distributed to the public pursuant to an offering registered under the Securities Act, (b) been sold to the public through a broker, dealer, or market maker in compliance with Rule 144 under the Securities Act (or any similar rule then in force), (c) been repurchased by the Company or any Subsidiary thereof or purchased or otherwise acquired by Sun, and, if such Other Registrable Securities are purchased or otherwise acquired by Sun, then such Other Registrable Securities shall be deemed Sun Registrable Securities, (d) been otherwise transferred, new certificates for them not bearing a legend restricting further transfer shall have been delivered by the Company and subsequent public distribution of them shall not require registration under the Securities Act, or (e) ceased to be outstanding. For purposes of this Agreement, a Person shall be deemed to be a holder of Other Registrable Securities, and the Other Registrable Securities shall be deemed to be in existence, whenever such Person has the right to acquire, directly or indirectly, such Other Registrable Securities (upon conversion or exercise in connection with a transfer of securities or otherwise, but disregarding any restrictions or limitations upon the exercise of such right other than vesting), whether or not such acquisition has actually been effected, and such Person shall be entitled to exercise the rights of a holder of Other Registrable Securities hereunder. "PERSON" shall mean an individual, a corporation, a limited liability company, an association, a joint-stock company, a business trust or other similar organization, a partnership, a joint venture, a trust, an unincorporated organization or a government or any agency, instrumentality or political subdivision thereof. "REGISTRABLE SECURITIES" means, collectively, the Sun Registrable Securities and the Other Registrable Securities. 12 "SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or any successor federal statute, and the rules and regulations promulgated thereunder, all as amended, modified or supplemented from time to time. "SECURITIES AND EXCHANGE COMMISSION" includes any governmental body or agency succeeding to the functions thereof. "SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, or any similar federal law then in force. "SUBSIDIARY" OR "SUBSIDIARIES" means, with respect to any Person, any corporation, limited liability company, partnership, association, or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or a combination thereof, or (ii) if a limited liability company, partnership, association, or other business entity, a majority of the partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by any Person or one or more Subsidiaries of such Person or a combination thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a limited liability company, partnership, association, or other business entity if such Person or Persons shall be allocated a majority of limited liability company, partnership, association, or other business entity gains or losses or shall be or control any managing director or general partner of such limited liability company, partnership, association, or other business entity. "SUN REGISTRABLE SECURITIES" means (i) all shares of Common Stock of the Company originally issued, directly or indirectly, to Sun, (ii) all shares of Common Stock of the Company issued or issuable, directly or indirectly, with respect to the securities referred to in clause (i) above upon exercise, conversion, or exchange or by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation, or other reorganization, and (iii) all other shares of Common Stock of the Company held by Persons holding securities described in clauses (i) and (ii) above. As to any particular Sun Registrable Securities, such securities shall cease to be Sun Registrable Securities when they have (a) been distributed to the public pursuant to an offering registered under the Securities Act, (b) been sold to the public through a broker, dealer, or market maker in compliance with Rule 144 under the Securities Act (or any similar rule then in force), (c) been repurchased by the Company or any Subsidiary thereof or purchased or otherwise acquired by any employee of the Company, and, if such Sun Registrable Securities are purchased or otherwise acquired by any employee of the Company, then such Sun Registrable Securities shall be deemed Other Registrable Securities, (d) been otherwise transferred, new certificates for them not bearing a legend restricting further transfer shall have been delivered by the Company and subsequent public distribution of them shall not require registration under the Securities Act, or (e) ceased to be outstanding. For purposes of this Agreement, a Person shall be deemed to be a holder of Sun Registrable Securities, and the Sun Registrable Securities shall be deemed to be in existence, whenever such Person has the right to acquire directly or indirectly such Sun Registrable Securities (upon conversion or exercise in connection with a transfer of securities or otherwise, but disregarding any restrictions or limitations upon the exercise of such right), whether or not such acquisition 13 has actually been effected, and such Person shall be entitled to exercise the rights of a holder of Sun Registrable Securities hereunder. 10. MISCELLANEOUS. (a) NO INCONSISTENT AGREEMENTS. The Company will not hereafter enter into any agreement with respect to the Company's securities which is inconsistent with or violates the rights granted to the holders of Registrable Securities in this Agreement. (b) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company will not take any action, or permit any change to occur, with respect to the Company's securities which would materially and adversely affect the ability of the holders of Registrable Securities to include such Registrable Securities in a registration undertaken pursuant to this Agreement or which would adversely affect the marketability of such Registrable Securities in any such registration (including, without limitation, effecting a stock split, combination of shares, or other recapitalization). (c) AMENDMENT AND WAIVER. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless such modification, amendment, or waiver is approved in writing by the Company, each member of the Bank Group, Sun, and the holders of at least a majority of the Other Registrable Securities; provided that execution of a joinder hereto shall not be considered a modification, amendment or waiver of any of the provisions of this Agreement. The failure of any party to enforce any of the provisions of this Agreement will in no way be construed as a waiver of such provisions and will not affect the right of such party thereafter to enforce each and every provision of this Agreement in accordance with its terms. (d) SEVERABILITY. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provision had never been contained herein. (e) ENTIRE AGREEMENT. Except as otherwise expressly set forth herein, this Agreement, those documents expressly referred to herein, and the other documents of even date herewith embody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements, or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way. (f) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective heirs, executors, successors and assigns. In addition, and whether or not any express assignment shall have been made, the provisions of this Agreement which are for the benefit of the holders of Registrable Securities (or any portion thereof) as such shall be for the benefit of, and enforceable by, any subsequent holder of any Registrable Securities (or of such portion thereof). 14 (g) COUNTERPARTS. This Agreement may be executed in separate counterparts each of which will be an original and all of which taken together shall constitute one and the same agreement. (h) REMEDIES. Any Person having rights under any provision of this Agreement shall be entitled to enforce their rights under this Agreement specifically to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights existing in their favor; PROVIDED, however the parties hereto stipulate that the remedies at law of any party hereto in the event of any default or threatened default by any other party hereto in the performance of or compliance with the terms hereof are not and will not be adequate and that, to the fullest extent permitted by law, such terms may be specifically enforced (without posting a bond or other security) by a decree for the specific performance thereof, whether by an injunction against violation thereof or otherwise. (i) NOTICES. All communications provided for herein shall be in writing and sent (a) by facsimile if the sender on the same day sends a confirming copy of such communication by a recognized overnight delivery service (charges prepaid), (b) by a recognized overnight delivery service (charges prepaid), or (c) by messenger. The respective addresses of the parties hereto for the purposes of this Agreement are set forth on EXHIBIT A attached hereto. Any party may change its address (or facsimile number) by notice to each of the other parties in accordance with this SECTION 10(i). The date of giving or making of any such communication shall be, in the case of clauses (a) and (c), the date of the receipt; and, in the case of clause (b), the business day next following the date such communication is sent. (j) GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Wisconsin without giving effect to any choice or conflict of law provision or rule (whether of the State of Wisconsin or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Wisconsin. Each party hereto submits to the jurisdiction of any state or federal court sitting in Milwaukee, Wisconsin, in any action or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and determined in any such court. Each party also agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court. Each party hereto waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety, or other security that might be required of any other party with respect thereto. Any party may make service on any other party by sending or delivering a copy of the process to the party to be served at the address and in the manner provided for the giving of notices in SECTION 10(i) above. Nothing in this SECTION 10(j), however, shall affect the right of any party to bring any action or proceeding arising out of or relating to this Agreement in any other court or to serve legal process in any other manner permitted by law or at equity. Each party agrees that a final judgment in any action or proceeding so brought shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by law or at equity. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY SUIT, ACTION OR OTHER PROCEEDING INSTITUTED BY OR AGAINST SUCH PARTY IN RESPECT OF ITS, HIS OR HER OBLIGATIONS HEREUNDER OR THE TRANSACTIONS CONTEMPLATED HEREBY. 15 (k) NO STRICT CONSTRUCTION. The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall be applied against any party. (l) BUSINESS DAYS. If any time period for giving notice or taking action hereunder expires on a day which is a Saturday, Sunday or legal holiday in the state in which the Company's chief executive office is located, the time period shall automatically be extended to the business day immediately following such Saturday, Sunday or legal holiday. (m) DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement. * * * * * 16 IN WITNESS WHEREOF, the parties hereto have executed this Registration Agreement on the day and year first above written. NORTHLAND CRANBERRIES, INC. By: /s/ John Swendrowski -------------------------------- Name: John Swendrowski Title: Chief Executive Officer SUN NORTHLAND, LLC By: /s/ M. Steven Liff ----------------------- Name: M. Steven Liff Title: Vice President FOOTHILL CAPITAL CORPORATION By: /s/ Phyliss Hasen ----------------------- Name: Phyliss Hasen Title: Vice President ST. FRANCIS BANK, F.S.B. By: /s/ John C. Tans ------------------------ Name: John C. Tans Title: Vice President [Continuation of Registration Agreement Signature Page] ARK CLO 2000-1 LIMITED By: Patriarch Partners, LLC Its Collateral Manager By: /S/ Lynn Tilton ----------------------------- Name: Lynn Tilton Title: Authorized Signatory U.S. BANK NATIONAL ASSOCIATION By: /S/ Stephen A. Tornio -------------------------- Name: Stephen A. Tornio Title: Vice President [Continuation of Registration Agreement Signature Page] Ableco Holding LLC By: /s/ Kevin P. Genda ------------------------ Name: Kevin P. Genda Title: Attorney-in-Fact EXHIBIT A ADDRESSES FOR NOTICES (a) If to the Company, to it at: Northland Cranberries, Inc. 800 First Avenue South P.O. Box 8020 Wisconsin Rapids, WI 54495 Attention: Chief Executive Officer Telecopy No.:(715) 422-6844 WITH A COPY TO: Sun Capital Advisors II, L. P. 5200 Town Center Circle, Suite 470 Boca Raton, Florida 33486 Attention: Marc J. Leder Rodger R. Krouse C. Deryl Couch, Esq. Telecopy No.: (561) 394-0540 AND A COPY TO: Foley & Lardner 777 East Wisconsin Avenue Milwaukee, Wisconsin 53202 Attention: Jeffrey J. Jones Steven R. Barth Telecopy No.: (414) 297-4900 EXHIBIT A (CONTINUED) (b) If to Sun Northland, LLC, to it at: c/o Sun Capital Advisors II, L. P. 5200 Town Center Circle, Suite 470 Boca Raton, Florida 33486 Attention: Marc J. Leder Rodger R. Krouse C. Deryl Couch, Esq. Telecopy No.: (561) 394-0540 WITH A COPY TO: Kirkland & Ellis 200 East Randolph Drive Chicago, Illinois 60601 Attention: Douglas C. Gessner Telecopy No.: (312) 861-2200 (c) If to Other Investors, to it at: Foothill Capital Corporation 2450 Colorado Avenue Suite 3000 West Santa Monica, California 90404 Attn: Business Finance Division Manager Telecopy No.:________________ WITH A COPY TO: Otterbourg, Steindler, Houston & Rosen, P.C. 230 Park Avenue New York, New York 10169 Attn: Mitchell M. Brand, Esq. Telecopy No.: (212) 682-6104 EXHIBIT A (CONTINUED) Ableco Holding LLC 450 Park Avenue, 28th Floor New York, New York 10022 Attn: Eric F. Miller Telecopy No.: (212) 758-5305 WITH A COPY TO: Schulte Roth & Zabel, LLP 919 Third Avenue New York, New York 10022 Attn: Frederic L. Ragucci, Esq. Telecopy No.: (212) 593-5955 St. Francis Bank, F.S.B. 13400 Bishops Lane, Suite 190 Brookfield, WI 53005-6203 Attn: John Tans Telecopy No.: (262) 787-8778 ARK CLO 2000-1 Limited c/o Patriarch Partners, LLC 40 Wall Street, 25th Floor New York, NY 10005 Attn: Dennis Dolan/Lynn Tilton Telecopy No.: (561) 279-0888 ARK CLO 2000-1 Limited c/o Woodside Capital 36 Bay State Road Cambridge, MA 02138 Attn: David Ray Telecopy No.: (617) 547-5162 U.S. Bank National Association MPFP2516 601 Second Avenue South Minneapolis, MN 55402-4302 Attn: Stephen Tornio Telecopy No.: (612) 973-2148 -----END PRIVACY-ENHANCED MESSAGE-----