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EXHIBIT 2.1
CONTRIBUTION AND EXCHANGE AGREEMENT
This CONTRIBUTION AND EXCHANGE AGREEMENT (this "Agreement") is made
and entered into as of June 20, 1997, by and among Xxxxxx X. Xxxxxxxx
("Xxxxxxxx"), TSG2 L.P., a Delaware limited partnership ("TSG2"), TSG2
Management, L.L.C., a Delaware limited liability company ("TSG2 Management"),
Xxxxx Xxxxxx ("Lively"; and together with TSG2 and TSG2 Management, the "LV
Foods Owners") and Authentic Specialty Foods, Inc., a Texas corporation
("ASF").
W I T N E S S E T H:
WHEREAS, Tanklage is the beneficial and record owner of 100 shares
(the "Tanklage Shares") of common stock (the "La Victoria Common Stock"), of La
Victoria Foods, Inc., a California corporation (the "Company");
WHEREAS, the LV Foods Owners own 100% of the equity interest of LV
Foods, LLC, a Delaware limited liability company ("LV Foods"), and LV Foods is
the beneficial and record owner of 100 shares of La Victoria Common Stock;
WHEREAS, the irrevocable trust created by Xxxxx Xxxxxxxx and Xxxxx
Xxxxxxxx under the Trust Agreement dated April 29, 1983, as amended (the
"Trust") is the record owner of 12 shares of La Victoria Common Stock (the
"Trust Shares");
WHEREAS, each of Tanklage and LV Foods is the beneficiary of an
undivided one-half interest in an irrevocable trust created by Xxxxx Xxxxxxxx
and Xxxxx Xxxxxxxx under the Trust Agreement dated April 29, 1983, as amended
(the "Trust");
WHEREAS, ASF is currently contemplating an initial public offer and
sale of of its common stock, par value $1.00 per share (the "ASF Common
Stock") pursuant to a firm commitment underwriting, which offer and sale of
shares (the "Initial Public Offering") will be registered pursuant to a
registration statement on Form S-1 (the "Registration Statement") to be filed
with the Securities and Exchange Commission (the "SEC");
WHEREAS, ASF intends to use a portion of the proceeds from the Initial
Public Offering to redeem all shares of ASF Common Stock owned by The Shansby
Group and TSG International (the "Shansby Redemption") for a per share purchase
price equal to the price to public in the Initial Public Offering less the
underwriters' discounts and commissions (the "Net Offering Price");
WHEREAS, on the terms and subject to the conditions set forth herein,
Tanklage desires to transfer, and ASF desires to acquire, (i) all of the shares
of La Victoria Common Stock owned by Tanklage and (ii) all of Tanklage's
beneficial interest in the Trust (including without limitation all of his
beneficial interest in and to the Trust Shares, the right to receive
distributions of dividends and all other income received by the Trust and due
or to become due to Tanklage thereunder, and the
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right of Tanklage to receive distributions of Trust property upon termination
of the Trust) (collectively, the "Trust Interests");
WHEREAS, on the terms and subject to the conditions set forth herein,
the LV Foods Owners desire to transfer, and ASF desires to acquire all of the
equity interest in LV Foods;
WHEREAS, the parties hereto desire to set forth certain
representations, warranties and covenants made by each to the other as an
inducement to the consummation of the transactions contemplated hereby;
NOW THEREFORE, for and in consideration of the mutual benefits derived
and to be derived from this Agreement by each party hereto, as well as other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1
THE CONTRIBUTION AND EXCHANGE
1.1 Certain Definitions. For purposes of this Agreement, the
following terms shall have the following respective meanings:
(a) "Public Offering Price" shall mean the price to the
public in the Initial Public Offering, without giving effect to any
underwriter's discounts and commissions or offering expenses.
(b) "Primary Shares" shall mean the number of shares of
ASF Common Stock equal to the result of (A) $7 million divided by (B)
the Public Offering Price.
(c) "Contingent Shares" shall mean if the aggregate
amount of, without duplication (A) cash received, dividends received,
debt assumed and shares of ASF Common Stock (valued at the Public
Offering Price) received or retained by Tanklage, the LV Foods Owners
and the current shareholders of ASF, in each case pursuant to this
Agreement or in connection with the Initial Public Offering (the
"Aggregate Consideration"), exceeds $63 million, then an additional
number of shares of ASF Common Stock (valued at the Public Offering
Price) necessary so that the portion of the Aggregate Consideration
received by Tanklage is at least one-third of the Aggregate
Consideration received by Tanklage, the LV Foods Owners and the
current shareholders of ASF.
1.2 Transfer of Shares and Trust Interests by Tanklage. (a) At
the Closing (as defined below), Tanklage will transfer, convey and deliver to
ASF all of the Tanklage Shares as evidenced by the delivery of a certificate or
certificates evidencing such Tanklage Shares in good delivery form and duly
endorsed for transfer or accompanied by duly executed stock powers, as well as
the Trust Interests, as evidenced by an assignment in form reasonably
satisfactory to Buyer and its counsel
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("Trust Assignment"), in exchange for (i) $12 million in cash payable at the
Closing by a completed wire Tanklage of immediately available funds for the
account of Tanklage to the bank account designated by Tanklage prior to
Closing, (ii) one or more certificates registered in the name of Tanklage
representing the Primary Shares and (iii) one or more certificates registered
in the name of the Tanklage representing any Contingent Shares.
1.3 Transfer of Interest in LV Foods by the LV Foods Owners. At
the Closing, the LV Foods Owners will transfer, convey and deliver to ASF 100%
of the equity interest in LV Foods of the Tanklage Shares as evidenced by the
delivery of a certificate or certificates evidencing such equity interest in
good form and duly endorsed for transfer or accompanied by duly executed
assignment in form reasonably acceptable to ASF in exchange for one or more
certificates registered in the name of LV Foods Owners (in proportion to their
ownership of LV Foods) for a number shares of ASF Common Stock equal to $14
million divided by the Initial Public Offering Price.
1.4 Status of Shares of ASF Common Stock. (a) Tanklage and the
LV Foods Owners acknowledge that the issuance to such persons of the shares of
ASF Common Stock pursuant to the terms of this Agreement have not been
registered or qualified under the Securities Act of 1933, as amended (the
"Securities Act") or any state securities or "blue sky" laws. Tanklage and the
LV Foods Owners further acknowledge that such shares may not be sold,
transferred or otherwise disposed of without an effective registration
statement under the Securities Act and compliance with applicable state
securities and "blue sky" laws, or an applicable exemption therefrom, and that
the certificates for such shares shall bear a restrictive legend to such
effect. ASF will enter into a registration rights agreement with each of
Tanklage and the LV Foods Owners at or prior to the Closing with respect to
such shares. Tanklage and each LV Foods Owner, severally and not jointly,
represent to ASF that such person is taking such shares for investment and not
with a view to distribution, within the meaning of the Securities Act.
(b) Tanklage and the LV Foods Owners agree to execute on an
expedited basis any lock-up agreements reasonably requested by the managing
underwriter for the Initial Public Offering; provided, however, that the
lock-up period shall not exceed 180 days after the date of the final prospectus
in connection with the Initial Public Offering. Without limiting the
generality of the foregoing, each of Tanklage and each LV Foods Owner agrees,
for the benefit of ASF and the underwriters for the Initial Public Offering,
that no such person or any affiliate or family member thereof will directly or
indirectly sell, transfer or otherwise dispose of any shares of ASF Common
Stock prior to expiration of 180 days after the date of the final prospectus in
connection with the Initial Public Offering.
1.5 Pre-Closing Dividend. Immediately prior to the consummation
of the transactions contemplated by this Article 1, Tanklage and LV Foods will
cause the Company to declare and pay a $4 million cash dividend to its
shareholders.
1.6 Closing. The closing ("Closing") of the transactions
contemplated by this Agreement shall take place at the offices of Xxxxxx &
Xxxxxx L.L.P., Houston, Texas at 10:00 a.m. (local time)
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on the date on which the Initial Public Offering is scheduled to occur, or at
such other place, time and date upon which the parties hereto may agree (the
"Closing Date").
1.7 Taking of Necessary Action; Further Action. The parties
hereto shall take all such reasonable and lawful action as may be necessary or
appropriate in order to effectuate the transactions contemplated by this
Agreement as promptly as possible. If, at any time after the Closing Date, any
such further action is necessary or desirable to carry out the purposes of this
Agreement the parties shall take all such lawful and necessary action.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF TANKLAGE
Tanklage represents and warrants to ASF and the LV Foods Owners that:
2.1 Authorization of Agreement; No Violation; No Consents. This
Agreement has been duly executed and delivered by Tanklage, and Tanklage has
the legal capacity to enter into this Agreement and to perform the transactions
contemplated hereby. Except as disclosed on Schedule 2.1, neither the
execution and delivery of this Agreement by Tanklage nor the consummation by
Tanklage of the transactions contemplated hereby (a) will conflict with or
result in a breach, default or violation of any judgment, decree or order or
any governmental permit, certificate, license, law, statute, rule or regulation
or any judgment, decree or order to which Tanklage is a party or is subject, or
to which the Company or any of its assets is subject, except for (i) any
conflict, breach, default or violation that would not have, individually or in
the aggregate, a Company Material Adverse Effect or (ii) any filings required
under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the
"HSR Act") or (b) will result in the creation of any lien, charge or other
encumbrance on the Tanklage Shares; provided, however, that no representation
or warranty is made with respect to the effect of any contractual obligations
set forth in the Stock Purchase Agreement by and between LV Foods and Xxxxxxx
X. Xxxxxxx, individually and as trustee of the Xxxxxx and Xxxxxxx Xxxxxxx
Living Trust u/t/d October 29, 1994 dated as of March 25, 1997, as amended, or
any assignment documents delivered pursuant thereto (collectively, the "Xxxxxxx
Xxxxxxx Documents"). For purposes of this Agreement, an occurrence or
condition shall have a "Company Material Adverse Effect" if it has a material
adverse effect on the financial condition, results of operations or assets of
the Company or materially hinders or impedes the consummation of the
transactions contemplated by this Agreement. Tanklage is not married, and no
person other than Tanklage has any right or interest, whether community,
marital or otherwise, in the Tanklage Shares or Trust Interests transferred by
Tanklage to ASF, or in Tanklage's rights under this Agreement.
2.2 Capitalization and Title to Tanklage Shares and Trust
Interests. (a) The authorized capital stock of the Company consists solely of
(i) 212 shares of La Victoria Common Stock, all of which are validly issued and
outstanding, fully paid and nonassessable, (ii) 60,000 Preferred Class "A"
shares, none of which are issued or outstanding, and (iii) 30,000 Preferred
Class "B" shares, none of which are issued or outstanding, of which shares are
validly issued and outstanding, fully paid and nonassessable. Tanklage has
beneficial and record ownership of the 100 Tanklage Shares, free and clear of
any pledge, lien, charge, encumbrance or other adverse claim. There are no
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outstanding subscriptions, options, warrants, rights, conversion rights, rights
of first refusal or other agreements or commitments obligating the Company to
issue or purchase shares of its capital stock or any security convertible into
capital stock or obligating Tanklage or the Company to purchase, sell or
transfer any capital stock of the Company.
(b) Tanklage owns a one-half undivided interest in the Trust
Interests, free and clear of any pledge, lien, charge, encumbrance or other
adverse claim, with the possible exception of a contingent interest of
Tanklage's children living at the time of Tanklage's death. A true and correct
copy of the trust agreement and all other organizational documents for the
Trust have been delivered to ASF. The trustees of the Trust are Xxxxxx X.
Xxxxxxxx, Xxxxxxx X. Xxxxxxx, Xxxxxx Xxxxxxxx and Xxxxxxx Xxxxx.
2.3 Enforceability. This Agreement constitutes the legal, valid
and binding obligation of Tanklage enforceable against Tanklage in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting creditors' rights generally and general
principles of equity (regardless of whether applied at law or in equity).
2.4 Brokers. No broker or finder has acted for or on behalf of
Tanklage or any affiliate of Tanklage (including without limitation the Company
but not including Xxxxxxx Xxxxxxx) in connection with this Agreement or the
transactions contemplated by this Agreement. No broker or finder is entitled
to any brokerage or finder's fee, or to any commission, based in any way on
agreements, arrangements or understandings made by or on behalf of Tanklage or
any affiliate of Tanklage (including without limitation the Company but not
including Xxxxxxx Xxxxxxx) in connection with this Agreement for which ASF has
or will have any liabilities or obligations (contingent or otherwise).
2.5 Absence of Material Adverse Change. To Tanklage's knowledge,
except as expressly permitted by this Agreement and except as disclosed in the
Registration Statement (both at the time such Registration Statement includes
the preliminary prospectus to be distributed to potential investors and at the
time the Registration Statement becomes effective under the Securities Act),
since January 1, 1997, there have been no (a) material adverse changes in the
results of operations, business, prospects or financial condition of the
Company from that set forth in the Company's financial statements most recently
made available to ASF (which are attached as Schedule 2.5) or (b) events or
conditions affecting the assets, properties, contracts with suppliers or
customers, business, prospects or operations of the Company from that in effect
on the date of the most recent balance sheet contained in such financial
statements, other than, with respect to both clauses (a) and (b) hereof,
changes or events or conditions in the ordinary course of business that do not
constitute a Company Material Adverse Effect.
2.6 No Material Omissions. To Tanklage's knowledge, neither this
Agreement nor any of the documents delivered by or on behalf of Tanklage in
connection therewith contains any untrue statement of a material fact, nor does
this Agreement or any such document omit to state a material fact necessary to
make the statements contained therein not misleading in light of the
circumstances
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under which they were made. To Tanklage's knowledge, except as disclosed with
respect to the Company in the Registration Statement (both at the time such
Registration Statement includes the preliminary prospectus to be distributed to
potential investors and at the time the Registration Statement becomes
effective under the Securities Act) there is no fact that would materially
adversely affect the operations, business, assets or prospects of the Company
that has not been disclosed to ASF in writing by Tanklage; provided, however,
that Tanklage makes no representation herein with respect to ASF; provided
further that so long as a particular matter is disclosed in the Registration
Statement, it shall not constitute a breach of this representation if the
accounting or tax treatment of such matter is not disclosed in the Registration
Statement or is recharacterized by ASF in the Registration Statement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF ASF
ASF represents and warrants to Tanklage that:
3.1 Organization and Good Standing. ASF is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Texas, with full corporate power, right and authority to own and lease the
properties and assets it currently owns and leases and to carry on its business
as such business is currently being conducted. ASF is duly licensed or
qualified under the laws of, and is in good standing in, each jurisdiction
where, because of the nature of its activities or properties, such licensing or
qualification is required, except where the failure to be so licensed or
qualified would not, individually or in the aggregate, have an ASF Material
Adverse Effect. For purposes of this Agreement, an occurrence or condition
shall have a "ASF Material Adverse Effect" if it has a material adverse effect
on the financial condition, results of operations or assets of ASF or
materially hinders or impedes the consummation of the transactions contemplated
by this Agreement.
3.2 Authorization of Agreement; No Violation; No Consents. This
Agreement has been duly executed and delivered by ASF. ASF has the full
corporate power and authority to enter into this Agreement, to make the
representations, warranties, covenants and agreements made herein and to
consummate the transactions contemplated hereby. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all requisite
corporate action on the part of ASF. Neither the execution and delivery of
this Agreement by ASF nor the consummation by ASF of the transactions
contemplated hereby (a) will conflict with or result in a breach, default or
violation of (i) the terms, provisions or conditions of the Articles of
Incorporation or Bylaws of ASF or (ii) any judgment, decree or order or any
governmental permit, certificate, license, law, statute, rule or regulation or
any judgment, decree or order to which ASF is a party or is subject, or to
which the business, assets or operations of ASF are subject, except for (A) any
conflict, breach, default or violation that would not have, individually or in
the aggregate, an ASF Material Adverse Effect or (B) any filings required under
the HSR Act or (b) will result in the creation of any lien, charge or other
encumbrance on any property or assets of ASF.
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3.3 Capitalization of ASF. The authorized capital stock of ASF
consists solely of (a) 20,000,000 shares of ASF Common Stock, of which
1,700,000 shares are validly issued and outstanding, fully paid and
nonassessable and (b) 5,000,000 shares of Preferred Stock, par value $.01 per
share, none of which are issued or outstanding. The outstanding shares of
Common Stock are owned beneficially and of record by the persons set forth on
Schedule 3.3. Except pursuant to this Agreement and in connection with the
Initial Public Offering and except as set forth on Schedule 3.3, there are no
outstanding subscriptions, options, warrants, rights, conversion rights, rights
of first refusal or other agreements or commitments obligating ASF to issue or
purchase shares of its capital stock or any security convertible into capital
stock or obligating ASF to purchase, sell or transfer any capital stock of ASF.
3.4 Enforceability. This Agreement constitutes the legal, valid
and binding obligation of ASF enforceable against ASF in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
and other laws affecting creditors' rights generally and general principles of
equity (regardless of whether applied at law or in equity).
3.5 Brokers. No broker or finder has acted for or on behalf of
ASF or any affiliate of ASF in connection with this Agreement or the
transactions contemplated by this Agreement. No broker or finder is entitled
to any brokerage or finder's fee, or to any commission, based in any way on
agreements, arrangements or understandings made by or on behalf of ASF or any
affiliate of ASF for which Tanklage has or will have any liabilities or
obligations (contingent or otherwise). For purposes of this Agreement, the
parties acknowledge that the Company is not an affiliate of ASF or LV Foods.
3.6 No Material Omissions. To ASF's knowledge, neither this
Agreement nor any of the documents delivered by or on behalf of ASF in
connection therewith contains any untrue statement of a material fact, nor does
this Agreement or any such document omit to state a material fact necessary to
make the statements contained therein not misleading in light of the
circumstances under which they were made. To ASF's knowledge, except as
disclosed with respect to ASF in the draft of ASF's registration statement on
Form S-1 under the Securities Act of 1933, as amended, which draft is attached
as Appendix I, there is no fact that would materially adversely affect the
operations, business, assets or prospects of ASF that has not been disclosed to
Tanklage in writing by ASF; provided, however, that ASF makes no representation
herein with respect to the Company.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE LV FOODS OWNERS
The LV Foods Owners jointly and severally represent and warrant to
Tanklage that:
4.1 Organization and Good Standing. Each of TSG2 and TSG2
Management is a limited partnership duly organized, validly existing and in
good standing under the laws of the State of Delaware, with full partnership
power, right and authority to own and lease the properties and assets it
currently owns and leases and to carry on its business as such business is
currently being
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conducted. Each of TSG2 and TSG2 Management is duly licensed or qualified
under the laws of, and is in good standing in, each jurisdiction where, because
of the nature of its activities or properties, such licensing or qualification
is required, except where the failure to be so licensed or qualified would not,
individually or in the aggregate, have an ASF Material Adverse Effect.
4.2 Authorization of Agreement; No Violation; No Consents. This
Agreement has been duly executed and delivered by TSG2 and TSG2 Management.
Each of TSG2 and TSG2 Management has the full partnership power and authority
to enter into this Agreement, to make the representations, warranties,
covenants and agreements made herein and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly authorized by all requisite partnership action on the part of each of
TSG2 and TSG2 Management. Neither the execution and delivery of this Agreement
by any LV Foods Owner nor the consummation by the LV Foods Owners of the
transactions contemplated hereby (a) will conflict with or result in a breach,
default or violation of any judgment, decree or order or any governmental
permit, certificate, license, law, statute, rule or regulation or any judgment,
decree or order to which any LV Foods Owner is a party or is subject, or to
which any LV Foods Owner or any of its or his assets is subject, except for (i)
any conflict, breach, default or violation that would not have, individually or
in the aggregate, an ASF Material Adverse Effect or (ii) any filings required
under the HSR Act or (b) will result in the creation of any lien, charge or
other encumbrance on the shares of La Victoria Common Stock owned by LV Foods.
4.3 Capitalization and Title to Equity Interest in LV Foods and
the Company. (a) XXX0, XXX0 Management and Lively have beneficial ownership of
98.3%, 0.7% and 1%, respectively, of the ownership interest of LV Foods, free
and clear of any pledge, lien, charge, encumbrance or other adverse claim.
There are no outstanding subscriptions, options, warrants, rights, conversion
rights, rights of first refusal or other agreements or commitments obligating
LV Foods to issue or purchase shares of its capital stock or any security
convertible into capital stock or obligating any LV Foods Owner or LV Foods to
purchase, sell or transfer any capital stock of LV Foods.
(b) Except as provided in the Xxxxxxx Xxxxxxx Documents, LV Foods
has beneficial and record ownership of 100 shares of La Victoria Common Stock,
free and clear of any pledge, lien, charge, encumbrance or other adverse claim.
(c) Except as provided in the Xxxxxxx Xxxxxxx Documents, LV Foods
owns a one-half undivided interest in the Trust Interests, free and clear of
any pledge, lien, charge, encumbrance or other adverse claim, with the possible
exception of a contingent interest of Xxxxxxx Xxxxxxx'x children living at the
time of Xxxxxxx Xxxxxxx'x death.
4.4 Enforceability. This Agreement constitutes the legal, valid
and binding obligation of the LV Foods Owners, enforceable against the LV Foods
Owners in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting
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creditors' rights generally and general principles of equity (regardless of
whether applied at law or in equity).
4.5 Brokers. No broker or finder has acted for or on behalf of
any LV Foods Owner or any affiliate of any LV Foods Owner (which term shall not
include the Company) in connection with this Agreement or the transactions
contemplated by this Agreement. No broker or finder is entitled to any
brokerage or finder's fee, or to any commission, based in any way on
agreements, arrangements or understandings made by or on behalf of any LV Foods
Owner or any affiliate of any LV Foods Owner (which term shall not include the
Company) for which Tanklage has or will have any liabilities or obligations
(contingent or otherwise).
4.6 No Material Omissions. To the knowledge of the LV Foods
Owners, except as disclosed in the Registration Statement (both at the time
such Registration Statement includes the preliminary prospectus to be
distributed to potential investors and at the time the Registration Statement
becomes effective under the Securities Act) there is no fact with respect to
the transactions contemplated by the Xxxxxxx Xxxxxxx Documents required to be
disclosed in the Registration Statement by the Securities Act that has not been
disclosed to Tanklage in writing by the LV Foods Owners.
ARTICLE 5
COVENANTS OF TANKLAGE
Tanklage covenants and agrees, except as otherwise contemplated by
this Agreement or as otherwise approved by ASF in writing, that from the date
hereof through the Closing Date:
5.1 General. Tanklage will use its reasonable efforts in good
faith to take all actions and to do all things necessary or advisable in order
to consummate and make effective the transactions contemplated by this
Agreement including satisfaction of the closing conditions.
5.2 Operation of the Company Prior to Closing. Tanklage will not
directly or indirectly take any action (or omit to take any action within his
power) that is inconsistent with the limitations on the Company set forth in
this paragraph. The business of the Company shall be conducted in the ordinary
course, consistent with past practice. No change shall be made in the Articles
of Incorporation or Bylaws of the Company. No change shall be made in the
number of shares of authorized or issued capital stock of the Company; nor
shall any option, warrant, call, right, commitment, conversion right, right of
first refusal, or agreement of any character be granted or made by the Company
relating to the authorized or issued capital stock thereof; nor shall the
Company issue, grant or sell any securities or obligations convertible into
shares of the capital stock of the Company; nor shall Tanklage in any manner
whatsoever transfer any direct or indirect interest in the Company to any
person or enter into any agreement, understanding or negotiations with respect
thereto; nor shall the Company, except as expressly contemplated by this
Agreement, make any declaration, setting aside or payment of any dividend or
distribution of assets of any kind in respect of its capital stock nor
repurchase or agree to repurchase any share of such capital stock. Neither
Tanklage (nor any affiliate
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or family member of Tanklage) will enter into any agreement with the Company,
provided that it is acknowledged that Tanklage and his two sons, Xxx Xxxxxxxx
and Xxxxx Xxxxxxxx, will be entering into employment agreements with the
Company in a manner consistent with the Letter Agreement (as hereinafter
defined).
5.3 HSR Act. Tanklage will (a) promptly file any required
notification under the HSR Act relating to the transactions contemplated hereby
with the United States Department of Justice (the "Justice Department") and the
Federal Trade Commission (the "FTC"), (b) respond to inquiries from the Justice
Department and the FTC in connection with such notification, (c) request early
termination or waiver of any applicable waiting period under the HSR Act and
(d) provide to ASF copies of all filings and correspondence between Tanklage
and the Justice Department and the FTC regarding the purchase and sale
contemplated hereby.
5.4 Dissolution of the Trust. The parties acknowledge that
documents are currently being circulated for the purpose of terminating the
Trust, and that such document has been executed by Tanklage, LV Foods and
Xxxxxxx Xxxxxxx. In order to eliminate any ambiguity as to the status of the
termination of the Trust, Tanklage agrees to use all reasonable efforts to
cause each trustee and each of his children (including adopted children) to
execute a consent and joinder to the termination documents in an expeditious
manner. Upon the effectiveness of such termination documents (at which time
the Trust shall be deemed terminated), then (a) no party shall be deemed to be
making any representation or warranty with respect to its ownership of any
Trust Interest after the time of such termination, (b) each representation and
covenant made by any party hereto with respect to ownership of shares of La
Victoria Common Stock shall be deemed to apply to the Trust Shares attributable
to the Trust Interests owned by such party immediately prior to the termination
of the Trust and (c) at the Closing each party hereto shall assign and
transfer, convey and deliver, for no additional consideration, to ASF any
shares of La Victoria Common Stock received by such party pursuant to the
distribution of assets from the Trust as a result of such termination.
ARTICLE 6
COVENANTS OF ASF
ASF covenants and agrees, except as otherwise contemplated by this
Agreement or as otherwise approved by Tanklage in writing, that from the date
hereof through the Closing Date:
6.1 General. ASF will use its reasonable efforts in good faith to
take all actions and to do all things necessary or advisable in order to
consummate and make effective the transactions contemplated by this Agreement
including satisfaction of the closing conditions. Notwithstanding the
foregoing, Tanklage acknowledges that the decision whether to proceed with the
Initial Public Offering (as well as any of the terms and conditions thereof)
shall be in the absolute and sole discretion of ASF, and shall not be affected
by provisions of this Agreement.
6.2 HSR Act. ASF will (a) promptly file any required notification
under the HSR Act relating to the transactions contemplated hereby with the
Justice Department and the FTC,
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(b) respond to inquiries from the Justice Department and the FTC in connection
with such notification, (c) request early termination or waiver of any
applicable waiting period under the HSR Act and (d) provide to Tanklage copies
of all filings and correspondence between ASF and the Justice Department and
the FTC regarding the purchase and sale contemplated hereby.
6.3 No Change in Capital Structure. ASF will not declare or pay
any dividends (or repurchase any shares of its capital stock) prior to the
Closing Date. Except as contemplated by Schedule 3.3, ASF will not issue any
additional shares of capital stock prior to the Closing Date except as
expressly contemplated by this Agreement and except in connection with the
Initial Public Offering.
ARTICLE 7
COVENANTS OF THE LV FOODS OWNERS
The LV Foods Owners jointly and severally covenant and agree, except
as otherwise contemplated by this Agreement or as otherwise approved by
Tanklage in writing, that from the date hereof through the Closing Date:
7.1 General. The LV Foods Owners will use their reasonable
efforts in good faith to take all actions and to do all things necessary or
advisable in order to consummate and make effective the transactions
contemplated by this Agreement including satisfaction of the closing
conditions.
7.2 HSR Act. The LV Foods Owners will (a) promptly file any
required notification under the HSR Act relating to the transactions
contemplated hereby with the Justice Department and the FTC, (b) respond to
inquiries from the Justice Department and the FTC in connection with such
notification, (c) request early termination or waiver of any applicable waiting
period under the HSR Act and (d) provide to Tanklage copies of all filings and
correspondence between any LV Foods Owner and the Justice Department and the
FTC regarding the purchase and sale contemplated hereby.
ARTICLE 8
CONDITIONS TO OBLIGATIONS OF TANKLAGE
The obligations of Tanklage to consummate the transactions
contemplated by this Agreement are subject, at the option of Tanklage, to the
following conditions:
8.1 Representations. The representations and warranties of ASF
and the LV Foods Owners herein contained shall be made again at Closing and
shall be true and correct in all material respects on the Closing Date.
8.2 Consummation of the Initial Public Offering. The Initial
Public Offering shall have been consummated, and as a result of such
consummation, ASF shall have received net proceeds (after taking into account
underwriting discounts and commissions and other offering expenses) at
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least equal to the sum of $12 million plus the amount of funds necessary to
consummate the Shansby Redemption.
8.3 Performance. ASF and the LV Foods Owners shall have performed
all material obligations, covenants and agreements contained in this Agreement
to be performed or complied with by them at or prior to the Closing.
8.4 HSR Act. Any waiting period applicable to the consummation of
the transactions contemplated by this Agreement under the HSR Act shall have
lapsed or terminated (by early termination or otherwise).
8.5 Pending Matters. No suit, action or other proceeding shall be
pending or threatened that seeks to restrain, enjoin or otherwise prohibit the
consummation of the transactions contemplated by this Agreement.
8.6 Delivery. ASF shall have delivered to Tanklage:
(a) a certificate of an executive officer of ASF
confirming the matters set forth in Sections 8.1 and 8.2;
(b) the stock certificates and cash consideration
contemplated by Section 1.2; and
(c) any other agreements, documents, certificates or
other instruments reasonably necessary to consummate the transactions
contemplated by this Agreement.
8.7 Shansby Redemption. The Shansby Redemption shall have been
consummated.
8.8 Registration Rights Agreement. At or prior to Closing, a
registration rights agreement, substantially in the form agreed to by the
parties, shall have been entered into by ASF and Tanklage with respect to the
shares of ASF Common Stock to be received by Tanklage pursuant to this
Agreement.
ARTICLE 9
CONDITIONS TO OBLIGATIONS OF ASF AND THE LV FOODS OWNERS
The obligations of ASF and the LV Foods Owners to consummate the
transactions contemplated by this Agreement are subject, at the option of ASF
and the LV Foods Owners to the following conditions:
9.1 Representations. The representations and warranties of
Tanklage herein contained shall be made again at Closing and shall be true and
correct in all material respects on the Closing Date.
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9.2 Consummation of the Initial Public Offering. The Initial
Public Offering shall have been consummated, and as a result of such
consummation, ASF shall have received net proceeds (after taking into account
underwriting discounts and commissions and other offering expenses) at least
equal to the sum of $12 million plus the amount of funds necessary to
consummate the Shansby Redemption.
9.3 Performance. Tanklage shall have performed all material
obligations, covenants and agreements contained in this Agreement to be
performed or complied with by it at or prior to the Closing.
9.4 HSR Act. Any waiting period applicable to the consummation of
the transactions contemplated by this Agreement under the HSR Act shall have
lapsed or terminated (by early termination or otherwise).
9.5 Pending Matters. No suit, action or other proceeding shall be
pending or threatened that seeks to restrain, enjoin or otherwise prohibit the
consummation of the transactions contemplated by this Agreement.
9.6 Deliveries by Tanklage. Tanklage shall have delivered to ASF:
(a) a certificate of Tanklage confirming the matters set
forth in Sections 9.1 and 9.2;
(b) the certificates, stock powers and assignments
contemplated by Section 1.2; and
(c) any other agreements, documents, certificates or
other instruments reasonably necessary to consummate the transactions
contemplated by this Agreement.
9.7 Shansby Redemption. The Shansby Redemption shall have been
consummated.
ARTICLE 10
TERMINATION
10.1 Termination At or Prior to Closing. This Agreement may be
terminated at any time on or prior to the Closing Date:
(a) by mutual written consent of the parties;
(b) by any party if the Closing shall not have occurred
on or before September 30, 1997; provided, however, that no party can
so terminate this Agreement if such party is at such time in material
breach of any provision of this Agreement; or
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(c) by any party if any Governmental Entity shall have
issued an order, judgment or decree or taken any other action
challenging, delaying, restraining, enjoining, prohibiting or
invalidating the consummation of any of the transactions contemplated
herein.
10.2 Effect of Termination. In the event that Closing does not
occur as a result of any party exercising its right to terminate pursuant to
Section 10.1, then this Agreement shall be null and void and no party shall
have any rights or obligations under this Agreement, except that nothing herein
shall relieve any party from any liability for any breach hereof.
ARTICLE 11
OTHER AGREEMENTS OF THE PARTIES
11.1 Survival of Representations and Covenants. The
representations and covenants set forth in this Agreement shall survive the
Closing Date for the following periods after the Closing Date:
(a) The representations and warranties set forth in
Sections 2.2, 2.4 and 3.3, 3.5, 4.3 and 4.5 and all of the covenants
set forth in this Agreement, shall survive without limitation as to
time.
(b) All other representations shall survive for one year.
The date of expiration of any representation or warranty shall be
referred to herein as the "Termination Date". Representations and warranties
under this Agreement shall be of no further force or effect after the
applicable Termination Date; provided, however, that there shall be no such
termination of any representation or warranty with respect to a bona fide claim
asserted with respect thereto prior to such date in accordance with the terms
of Section 11.2.
11.2 Indemnification. (a) Tanklage agrees to defend, indemnify
and hold harmless ASF, the LV Foods Owners, the Company, and their affiliates,
successors, assigns, officers, directors and controlling persons (collectively,
the "ASF Indemnitees") from and against any and all demands, claims, actions,
causes of action, assessments, losses, damages, liabilities, costs and
expenses, including, without limitation, litigation costs and all attorneys'
and experts' fees and expenses ("Losses") asserted against, resulting from,
imposed upon or incurred by any of ASF Indemnitees by, or arising out of, or as
a result of, any of the representations, warranties, covenants or agreements of
Tanklage contained in this Agreement or any certificate or instrument delivered
by Tanklage or the Company pursuant to the terms hereof being incorrect, untrue
or breached. ASF and the LV Foods Owners agree jointly and severally to
defend, indemnify and hold harmless Tanklage and his heirs and personal
representatives (collectively, the "Tanklage Indemnitees") from and against any
and all Losses asserted against, resulting from, imposed upon or incurred by
any of Tanklage Indemnitees by, or arising out of, or as a result of, any of
the representations, warranties, covenants or agreements of ASF or any LV Foods
Owner contained in this Agreement or any certificate or instrument delivered by
ASF or any LV Foods Owner pursuant to the terms hereof being incorrect,
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untrue or breached. Notwithstanding the foregoing provisions of this paragraph
(a), Tanklage, ASF and/or the LV Foods Owner shall have liability pursuant to
this Section 11.2 arising out of representations and warranties being incorrect
or untrue or covenants or agreements breached only with respect to Losses
arising out of or as a result of a breach or untruth described in a Claim
Notice given to Tanklage or ASF, respectively, in accordance with the
provisions hereof on or prior to the applicable Termination Date, if any.
(b) Assertion of Claims. All claims for indemnification by any of
the Tanklage Indemnitees or any of ASF Indemnitees under this Section 11.2
shall be asserted and resolved as follows:
(i) Any person claiming indemnification hereunder is
hereinafter referred to as the "Indemnified Party" and any person
against whom such claims are asserted hereunder is hereinafter
referred to as the "Indemnifying Party." In the event that any Losses
are asserted against or sought to be collected from an Indemnified
Party by a third party, said Indemnified Party shall with reasonable
promptness notify the Indemnifying Party of the Losses, specifying the
nature of and specific basis for such Losses and the indemnity claim
and the amount or the estimated amount thereof to the extent then
feasible and enclosing a copy of all papers (if any) served with
respect to the claim (the "Claim Notice"). The Indemnifying Party
shall not be obligated to indemnify the Indemnified Party with respect
to any such Losses if the Indemnified Party fails to notify the
Indemnifying Party thereof in accordance with the provisions of this
Agreement in reasonably sufficient time so that the Indemnifying
Party's ability to defend against the Losses is not prejudiced, but
only to the extent such notification within such time period is
practicable. The Indemnifying Party shall have 30 days from the date
the Claim Notice is given in accordance with the notice provisions
hereof (the "Notice Period") to notify the Indemnified Party (x)
whether it disputes the liability of the Indemnifying Party to the
Indemnified Party hereunder with respect to such Losses and (y)
whether it desires, at the sole cost and expense of the Indemnifying
Party, to defend the Indemnified Party against such Losses; which
election to defend may be made without prejudicing the Indemnifying
Party as to its liability hereunder, other than with respect to the
costs of defense. Notwithstanding the foregoing, any Indemnified
Party is hereby authorized prior to and during the Notice Period to
file any motion, answer or other pleading that it shall deem necessary
or appropriate to protect its interests or those of the Indemnifying
Party (and of which it shall have given notice and opportunity to
comment to the Indemnifying Party) and that is not prejudicial to the
Indemnifying Party. (A) In the event that the Indemnifying Party
notifies the Indemnified Party within the Notice Period that it
desires to defend the Indemnified Party against such Losses and except
as hereinafter provided, the Indemnifying Party shall have the right
to defend by all appropriate proceedings, and with counsel of its own
choosing, which proceedings shall be promptly settled or prosecuted by
them to a final conclusion. If the Indemnified Party desires to
participate in, but not control, any such defense or settlement it may
do so at its sole cost and expense. If requested by the Indemnifying
Party, the Indemnified Party agrees to cooperate with the Indemnifying
Party and its counsel in contesting any Losses that the Indemnifying
Party elects to contest, or, if
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appropriate and related to the claim in question, in making any
counterclaim against the person asserting the third party Losses, or
any cross-complaint against any person. No claim with respect to
which the Indemnifying Party has admitted its liability may be settled
or otherwise compromised without the prior written consent of the
Indemnifying Party. Any party settling or compromising a claim in
violation of the preceding sentence shall be solely liable for the
amount of the settlement or compromise. (B) If the Indemnifying
Party does not notify the Indemnified Party within 30 days after the
receipt of a Claim Notice that it elects to undertake the defense
thereof, the Indemnified Party shall have the right to defend at the
expense of the Indemnifying Party the claim with counsel of its
choosing reasonably satisfactory to the Indemnifying Party, subject to
the right of the Indemnifying Party to assume the defense of any claim
at any time prior to settlement or final determination thereof. Any
such defense shall be prosecuted promptly and vigorously by the
Indemnified Party. In the case of either (A) or (B), if the
Indemnifying Party has not yet admitted its liability for a claim, the
Indemnified Party shall send a written notice to the Indemnifying
Party of any proposed settlement of any claim received by the
Indemnified Party. The Indemnifying Party shall have an option for 30
days following receipt of such notice to (i) admit liability for the
claim if it has not already done so and (ii) if liability has been
admitted, reject, in its reasonable judgment, the proposed settlement.
Failure to reject such settlement within such 30-day period shall be
deemed an acceptance of such settlement. If the Indemnified Party
settles any such claim over the objection of the Indemnifying Party,
the Indemnified Party shall thereby waive any right to indemnity
therefor, unless the Indemnifying Party has not prior to the time of
settlement admitted liability for such claim.
(ii) In the event any Indemnified Party should have a
claim for Losses against any Indemnifying Party hereunder that does
not involve a Loss being asserted against or sought to be collected
from it by a third party (for example, but without limitation, a Loss
resulting from a breach of a representation, warranty or covenant),
the Indemnified Party shall send a Claim Notice with respect to such
claim to the Indemnifying Party. If the Indemnifying Party does not
notify the Indemnified Party within 30 days from the date the claim
notice is given that it disputes such claim for Losses, the amount of
such Losses shall be conclusively deemed a liability of the
Indemnifying Party hereunder.
11.3 Expenses. Each party shall be solely responsible for all
expenses, including due diligence expenses, incurred by it in connection with
this transaction, and neither party shall be entitled to any reimbursement for
such expenses from the other party hereto; provided, however, that the
reasonable expenses of Tanklage shall be paid by the Company. Without limiting
the generality of the foregoing, ASF shall be liable for all sales, use,
documentary, recording, stamp, transfer or similar taxes, assessments or fees
arising from the transactions contemplated by this Agreement.
11.4 Amendment of Letter Agreement. The letter agreement between
Tanklage and LV Foods dated May 2, 1997 (the "Letter Agreement") is hereby
amended in the manner set forth below, which amendment shall be effective upon
the Closing. The LV Foods Owner shall cause LV Foods to execute an instrument
acknowledging its agreement to such amendment at or prior to the Closing.
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Except as expressly set forth below, the Letter Agreement is hereby ratified
and confirmed by Tanklage and LV Foods in accordance with its terms.
(a) Paragraph 1 of the Letter Agreement is hereby
deleted.
(b) Paragraph 5 of the Letter Agreement is hereby amended
to read in its entirety as follows:
New counsel shall be selected for La Victoria. It is agreed
that this new counsel will be Xxxxxx & Xxxxxx L.L.P. unless
otherwise determined by LV Foods, and it acknowledged that the
parties currently intend that Hill, Xxxxxx & Xxxxxxx LLP will
act as local counsel for La Victoria.
(c) Paragraph 12 of the Letter Agreement is hereby
amended by adding a new sentence to the end of such paragraph, which
new sentence shall read as follows:
Nothing in this Paragraph 12 or in Paragraph 11 of this
Agreement shall limit the ability of LV Foods or any affiliate
thereof (including Authentic Specialty Foods, Inc.) to take
any actions it deems appropriate.
ARTICLE 12
MISCELLANEOUS
12.1 Applicable Law. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of Texas without
giving effect to any choice or conflict of law provision or rule (whether of
the State of Texas or any other jurisdiction) that would cause the application
of the laws of any jurisdiction other than the State of Texas.
12.2 No Third Party Beneficiaries. Except as expressly provided in
Section 1.4(b) and except for any rights to indemnification for the benefit of
the ASF Indemnitees and the Tanklage Indemnitees, nothing in this Agreement
shall provide any benefit to any third party or entitle any third party to any
claim, cause of action, remedy or right of any kind, it being the intent of the
parties that this Agreement shall not be construed as a third party beneficiary
contract.
12.3 Waiver. Except as expressly provided in this Agreement,
neither the failure nor any delay on the part of any party hereto in exercising
any right, power or remedy hereunder shall operate as a waiver thereof, or of
any other right, power or remedy; nor shall any single or partial exercise of
any right, power or remedy preclude any further or other exercise thereof, or
the exercise of any other right, power or remedy. Except as expressly provided
herein, no waiver of any of the provisions of this Agreement shall be valid
unless it is in writing and signed by the party against whom it is sought to be
enforced.
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12.4 Entire Agreement; Amendment. This Agreement and Exhibits
hereto, each of which is deemed to be a part hereof, and any agreements,
instruments or documents executed and delivered by the parties pursuant to this
Agreement, constitute the entire agreement and understanding between the
parties hereto, and it is understood and agreed that all previous undertakings,
negotiations and agreements between the parties regarding the subject matter
hereof are merged herein; provided, however, that except as expressly provided
in Section 11.4 hereof, this Agreement does not modify or supersede the Letter
Agreement. This Agreement may not be modified orally, but only by an agreement
in writing signed by the parties hereto.
12.5 Notices. Any and all notices or other communications required
or permitted under this Agreement shall be given in writing and delivered in
person or sent by United States certified or registered mail, postage prepaid,
return receipt requested, or by overnight express mail, or by telex, facsimile
or telecopy to the address of such party set forth below. Any such notice
shall be effective upon receipt or three days after placed in the mail,
whichever is earlier.
If to Tanklage:
Xxxxxx X. Xxxxxxxx
000 X. Xxxxx Xxxxxx
Xxxx xx Xxxxxxxx, Xxxxxxxxxx 00000
Telecopy Number: (000) 000-0000
with a copy to:
Hill, Xxxxxx & Xxxxxxx LLP
Thirty-Fifth Floor--Union Bank Square
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. XxXxxxx
Telecopy Number: (000) 000-0000
If to ASF or any LV Foods Owner:
x/x XXX0 X.X.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy Number: (000) 000-0000
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with a copy to:
Xxxxxx & Xxxxxx L.L.P.
2300 First City Tower
0000 Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: J. Xxxx Xxxxx
Telecopy Number: (000) 000-0000
Any party may, by notice so delivered, change its address for notice purposes
hereunder.
12.6 No Assignment. Neither this Agreement nor any rights or
obligations hereunder shall be assigned or transferred in any way whatsoever by
any party hereto except with prior written consent of the other parties, which
consent such party shall be under no obligation to grant, and any assignment or
attempted assignment without such consent shall have no force or effect with
respect to any non-assigning party. Subject to the preceding sentence, this
Agreement shall be binding on and inure to the benefit of the parties hereto
and their permitted successors and assigns. Any assignment made in violation
of the foregoing provisions shall be void.
12.7 Severability. If any provision of this Agreement is invalid,
illegal or unenforceable, the balance of this Agreement shall remain in full
force and effect and this Agreement shall be construed in all respects as if
such invalid, illegal or unenforceable provision were omitted. If any
provision is inapplicable to any person or circumstance, it shall,
nevertheless, remain applicable to all other persons and circumstances.
12.8 Construction; Counterparts. Any section headings in this
Agreement are for convenience of reference only, and shall be given no effect
in the construction or interpretation of this Agreement or any provisions
thereof. No provision of this Agreement will be interpreted in favor of, or
against, any party by reason of the extent to which any such party or its
counsel participated in the drafting thereof or by reason of the extent to
which any such provision is inconsistent with any prior draft hereof or
thereof. This Agreement shall be deemed the mutual form of the parties hereto.
This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original, and which together shall constitute but one and the same
instrument.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement on the date first written above.
/s/ XXXXXX X. XXXXXXXX
----------------------------------
Xxxxxx X. Xxxxxxxx
TSG2 L.P.
By: TSG2 Management, L.L.C., its general partner
By: /s/ XXXXXXX X. XXXXXXXX
---------------------------------------------
Xxxxxxx X. Xxxxxxxx
Managing Member
TSG2 MANAGEMENT, L.L.C.
By: /s/ XXXXXXX X. XXXXXXXX
---------------------------------------------
Xxxxxxx X. Xxxxxxxx
Managing Member
/s/ XXXXX XXXXXX
------------------------------------------------
Xxxxx Xxxxxx
AUTHENTIC SPECIALTY FOODS, INC.
By: /s/ XXXXX XXXXXX
---------------------------------------------
Name: Xxxxx Xxxxxx
----------------------------------------
Title: Chairman of the Board
---------------------------------------
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SCHEDULE 2.1
TO
CONTRIBUTION AND EXCHANGE AGREEMENT
REQUIRED CONSENTS
The consent of Union Bank of California, N.A. is required in
connection with the Business Loan Agreement between the Company and said bank
in order to pay the dividend provided for in Section 2.5.
22
SCHEDULE 2.5
TO
CONTRIBUTION AND EXCHANGE AGREEMENT
COMPANY FINANCIAL STATEMENTS
23
SCHEDULE 3.3
TO
CONTRIBUTION AND EXCHANGE AGREEMENT
OWNERSHIP OF ASF COMMON STOCK
Shares of ASF
SHAREHOLDER Common Stock
----------- -------------
The Shansby Group 1,103,470
TSG International 435,030
Xxxxxx X. Xxxxxxxxxx 85,000
Xxxxxx X. Xxxxxx, Xx. 51,000
Xxxxxxx X. Xxxxxxxxxx 25,500
---------
Total 1,700,000
=========
WARRANT
Simultaneously with the consummation of the Initial Public Offering,
ASF will issue a five-year warrant to Shansby Partners, an affiliate of TSG2,
to purchase 350,000 shares of ASF Common Stock for an exercise price (subject
to adjustment) equal to the price to public in the Initial Public Offering.
1997 STOCK PLAN
350,000 shares of ASF Common Stock are reserved for issuance pursuant
to AS's 1997 Stock Plan, pursuant to which no options or other rights to
acquire ASF Common Stock have yet been granted or issued.
