EX-10.10 16 dex1010.htm FORM OF EXCHANGE AGREEMENT EXCHANGE AGREEMENT
EXHIBIT 10.10
EXCHANGE AGREEMENT, dated as of (this “Agreement”), by and among [Chicken Acquisition Corp.], a Delaware corporation (the “Buyer”) and (“Rollover Seller”).
[WHEREAS, in connection with, and as an integral part of, the Transactions, Rollover Seller desires to exchange its right, title and interest in and to Shares held by Rollover Seller set forth on Schedule I hereto (the “Rollover Shares”) for shares (the “Issued Shares”) of the Buyer’s common stock, par value $.01 per share (“Buyer Stock”) (the “Share Exchange”)]; and
1. | Closing. |
(a) | Time and Place. The closing of the [Share Exchange] [and] [Option Exchange] (the “Exchange Closing”) shall occur substantially concurrently with and at the place of the Closing. |
(d) | [Option Exchange. Upon the terms and subject to the conditions set forth herein, at the Exchange Closing, Rollover Seller agrees that each Rollover Option shall be cancelled and, in exchange therefor, shall receive the Issued Options.] |
2. | Conditions Precedent. |
The obligation of the Buyer and Rollover Seller to consummate the transactions contemplated hereby is subject to the satisfaction (or waiver in accordance with the Purchase Agreement) of the Buyer’s, on the one hand, and the Sellers’ and the Company Group’s, on the other hand, respective conditions to the Closing set forth in Article IX of the Purchase Agreement (other than such conditions that may only be satisfied at the Closing).
3. | Further Assurances. |
Upon the terms and subject to the conditions herein provided, each of the parties hereto agrees to use its reasonable best efforts to take or cause to be taken all action, to do or cause to be done, and to assist and cooperate with the other party hereto in doing, all things necessary, proper or advisable under applicable Laws and regulations to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement, including, the execution and delivery of such instruments, and the taking of such other actions as the other party hereto may reasonably require in order to carry out the intent of this Agreement.
4. | Representations and Warranties |
(a) | Rollover Seller represents and warrants as follows: |
(i) | Binding Agreement. Rollover Seller has the capacity to execute and deliver this Agreement and to consummate the transactions contemplated hereby. Rollover Seller has duly and validly executed and delivered this Agreement and this Agreement |
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constitutes a legal, valid and binding obligation of Rollover Seller, enforceable against Rollover Seller in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws affecting creditors’ rights generally and by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law). |
(ii) | No Conflict. Neither the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, nor the performance of the Rollover Seller’s obligations hereunder will (a) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation, or acceleration) under any contract, agreement, instrument, commitment, arrangement or understanding to which Rollover Seller is a party, or result in the creation of a Lien with respect to Rollover Seller’s Rollover Shares, if any, or Rollover Options, if any, or (b) require any consent, authorization or approval of any other person or any entity or Government Entity, or (c) violate or conflict with any Judgment applicable to the Rollover Seller or Rollover Seller’s Rollover Shares, if any, or Rollover Options, if any, or the Issued Shares, if any, or Issued Options, if any, to be received by the Rollover Seller hereunder. |
(iii) | Securities Laws Matters. Rollover Seller acknowledges receipt of advice from Buyer that (i) the Issued Shares, if any, and Issued Options (and any shares of Buyer Common Stock acquired on exercise of the Issued Options (“Exercise Shares”)), if any, have not been registered under the Securities Act of 1933 (the “Act”) or qualified under any state securities or “blue sky” or non U.S. securities laws, (ii) it is not anticipated that there will be any public market for any shares of Buyer Common Stock, (iii) any shares of Buyer Common Stock must be held indefinitely and Rollover Seller must continue to bear the economic risk of the investment in the shares of Buyer Common Stock unless such shares are subsequently registered under the Act and such state or non U.S. securities laws or an exemption from such registration is available, (iv) Rule 144 promulgated under the Act (“Rule 144”) is not presently available with respect to sales of any shares of Buyer Common Stock and Buyer has made no covenant to make Rule 144 available and Rule 144 is not anticipated to be available in the foreseeable future, (v) when and if any shares of Buyer Common Stock may be disposed of without registration in reliance upon Rule 144, such disposition can be made only in limited amounts and in accordance with the terms and conditions of such Rule, (vi) if the exemption afforded by Rule 144 is not available, public sale of the shares of any shares of Buyer Common Stock without |
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registration will require the availability of an exemption under the Act, (vii) restrictive legends in the form set forth in the Stockholders Agreement shall be placed on the certificate representing the shares of any shares of Buyer Common Stock issued to Rollover Seller and (viii) a notation shall be made in the appropriate records of the Buyer indicating that the shares of any such shares are subject to restrictions on transfer and, if Buyer should in the future engage the services of a stock transfer agent, appropriate stop-transfer instructions will be issued to such transfer agent with respect to any such shares. |
(iv) | Accredited Investor. Rollover Seller is an “accredited investor” as such term is defined in Rule 501(a) promulgated under the Act. |
(v) | Shareholder’s Experience. (A) Rollover Seller’s financial situation is such that Rollover Seller can afford to bear the economic risk of holding the Issued Shares, if any, and Issued Options ( and any Exercise Shares), if any, for an indefinite period of time, (B) Rollover Seller can afford to suffer complete loss of his investment in the Issued Shares, if any, and Issued Options ( and any Exercise Shares) and (C) the Rollover Seller’s knowledge and experience in financial and business matters are such that Rollover Seller is capable of evaluating the merits and risks of Rollover Seller’s investment in the Issued Shares, if any, and Issued Options ( and any Exercise Shares). |
(vi) | Access to Information. Rollover Seller represents and warrants that Rollover Seller has been granted the opportunity to ask questions of, and receive answers from, representatives of Buyer concerning the terms and conditions of the [Share Exchange][and] [Option Exchange] and to obtain any additional information that Rollover Seller deems necessary to verify the accuracy of the information so provided. |
(vii) | Investment Intent. Rollover Seller is acquiring the Issued Shares, if any, and Issued Options (and Rollover Seller will acquire any Exercise Shares), if any, solely for Rollover Seller’s own account for investment and not with a view to or for sale in connection with any distribution thereof. Rollover Seller agrees that Rollover Seller will not, directly or indirectly, offer, transfer, sell, pledge, hypothecate or otherwise dispose of any of the shares of (or options to acquire) Buyer Common Stock (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of any shares of Buyer Parent Common Stock), except in compliance with (i) the Act and the rules and regulations of the Securities and Exchange Commission thereunder, (ii) applicable state and non-U.S. securities or “blue sky” laws and (iii) the provisions of this |
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Agreement, any applicable Stock Option Agreement and the Stockholders Agreement, as applicable. |
(b) | Representations and Warranties of Buyer. Buyer represents and warrants as follows: |
(v) |
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effect to the transactions contemplated by the Purchase Agreement and the exchange agreements entered into by the Rollover Sellers (as defined in the Purchase Agreement)). The only class or type of equity in Buyer issued by Buyer to Trimaran Pollo Partners, L.L.C. and its affiliates as of the Closing are shares of Buyer Common Stock. |
5. | Miscellaneous. |
(c) | Applicable Law. This Agreement shall be governed by and construed in accordance with the Laws of the State of New York, regardless of the Laws that might otherwise govern under applicable principles of conflict |
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or choice of Law (other than Section 5-1401 of the New York General Obligations Law). |
If to the Buyer, to:
Chicken Acquisition Corp.
x/x Xxxxxxxx Xxxx Xxxxxxxxxx, X.X.X.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Flyer
Facsimile: (000) 000-0000
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Xxxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to Rollover Seller, to:
[Rollover Seller]
[Address]
Attention:
Facsimile:
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With copies to:
O’Melveny & Xxxxx LLP
Times Square Tower
0 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
or to such other address as the Person to whom notice is given may have previously furnished to the others in writing in the manner set forth above (provided that notice of any change of address shall be effective only upon receipt thereof).
(f) | Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same instrument. |
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ROLLOVER SELLER: | ||
By: | ||
Name: | ||
Title: | ||
BUYER: | ||
CHICKEN ACQUISITION CORP. | ||
By: | ||
Name: | ||
Title: |
EXHIBIT A
Stockholders Agreement
EXHIBIT B
Stock Option Agreement
[Options Fully Vested]
Term of Options not less than [ ]
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