1
STOCK PURCHASE AGREEMENT
dated as of June 10, 1998
by and between
VITA INTERNATIONAL, LTD.
TCW SPECIAL PLACEMENTS FUND I,
TCW SPECIAL PLACEMENTS FUND II,
and
TCW CAPITAL
with respect to capital stock of
SPARTECH CORPORATION
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TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which
it is attached but is inserted for convenience only.
Page
No.
ARTICLE I SALE OF SHARES AND CLOSING............................................................................11
1.01 Purchase and Sale.............................................................................11
1.02 Purchase Price................................................................................11
1.03 Closing.......................................................................................11
1.04 Further Assurances; Post-Closing Cooperation..................................................11
ARTICLE II REPRESENTATIONS AND WARRANTIES OF SELLER.............................................................12
2.01 Organization of Sellers.......................................................................12
2.02 Authority.....................................................................................12
2.03 Capital Stock.................................................................................12
2.04 No Conflicts..................................................................................12
2.05 Governmental Approvals and Filings............................................................12
2.06 Legal Proceedings.............................................................................13
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PURCHASER.........................................................13
3.01 Organization..................................................................................13
3.02 Authority.....................................................................................13
3.03 No Conflicts..................................................................................13
3.04 Governmental Approvals and Filings............................................................13
3.05 Legal Proceedings.............................................................................13
3.06 Purchase for Investment.......................................................................14
ARTICLE IV COVENANTS OF SELLERS.................................................................................14
4.01 Regulatory and Other Approvals................................................................14
4.02 HSR Filings...................................................................................14
4.03 Fulfillment of Conditions.....................................................................14
ARTICLE V COVENANTS OF PURCHASER................................................................................15
5.01 Regulatory and Other Approvals................................................................15
5.02 HSR Filings...................................................................................15
5.03 Fulfillment of Conditions.....................................................................15
ARTICLE VI CONDITIONS TO OBLIGATIONS OF PURCHASER...............................................................15
6.01 Representations and Warranties................................................................16
6.02 Performance...................................................................................16
6.03 Officers' Certificates........................................................................16
6.04 Orders and Laws...............................................................................16
6.05 Regulatory Consents and Approvals.............................................................16
6.06 Third Party Consents..........................................................................16
6.07 Proceedings...................................................................................16
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ARTICLE VII CONDITIONS TO OBLIGATIONS OF SELLERS................................................................17
7.01 Representations and Warranties................................................................17
7.02 Performance...................................................................................17
7.03 Officers' Certificates........................................................................17
7.04 Orders and Laws...............................................................................17
7.05 Regulatory Consents and Approvals.............................................................17
7.06 Third Party Consents..........................................................................18
7.07 Proceedings...................................................................................18
ARTICLE VIII SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS..................................18
8.01 Survival of Representations, Warranties, Covenants and Agreements.............................18
ARTICLE IX TERMINATION..........................................................................................18
9.01 Termination...................................................................................18
9.02 Effect of Termination.........................................................................18
ARTICLE X DEFINITIONS...........................................................................................19
10.01 Definitions...................................................................................19
ARTICLE XI MISCELLANEOUS........................................................................................20
11.01 Notices.......................................................................................20
11.02 Entire Agreement..............................................................................21
11.03 Expenses......................................................................................21
11.04 Public Announcements..........................................................................22
11.05 Confidentiality...............................................................................22
11.06 Waiver........................................................................................22
11.07 Amendment.....................................................................................22
11.08 No Assignment; Binding Effect.................................................................22
11.09 Headings......................................................................................23
11.10 Governing Law.................................................................................23
11.11 Counterparts..................................................................................23
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EXHIBITS
EXHIBIT A General Partners Certificate of each Seller
EXHIBIT B Officer's Certificate of Purchaser
EXHIBIT C Secretary's Certificate of Purchaser
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This STOCK PURCHASE AGREEMENT dated as of June 10, 1998 is
made and entered into by and between Vita International, Ltd. a United Kingdom
limited company ("Purchaser"), TCW Special Placements Fund I, a California
limited partnership ("TCW I"), TCW Special Placements Fund II, a California
limited partnership ("TCW II"), and TCW Capital, a California general
partnership ("Capital") (each a "Seller" and collectively, the "Sellers").
Capitalized terms not otherwise defined herein have the meanings set forth in
Section 13.01.
WHEREAS, each Seller owns shares of common stock, par value
$0.75 per share ("Spartech Common Stock"), of Spartech Corporation, a Delaware
corporation (the "Company"); and
WHEREAS, each Seller desires to sell to Purchaser, and
Purchaser desires to purchase from each Seller, the number of shares of Spartech
Common Stock set forth opposite such Seller's name on Appendix 1 hereto (such
shares are referred to collectively herein as the "Shares"), all on the terms
and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
SALE OF SHARES AND CLOSING
Purchase and Sale. Sellers agree to sell to Purchaser, and
Purchaser agrees to purchase from Sellers, all of Sellers' rights, title and
interests in and to the Shares at the Closing on the terms and subject to the
conditions set forth in this Agreement.
Purchase Price. The purchase price for the Shares is $21.25
per share, for an aggregate of $63,750,000 (the "Purchase Price"), payable in
immediately available United States funds at the Closing in the manner provided
in Section 1.03.
Closing. The Closing will take place at the offices of
Milbank, Tweed, Xxxxxx & XxXxxx, 0 Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, X.X. 00000,
or at such other place as Purchaser and Sellers mutually agree, at 10:00 A.M.
local time, on the Closing Date. At the Closing, Purchaser will pay the Purchase
Price by wire transfer of immediately available funds to such account as Seller
may reasonably direct by written notice delivered to Purchaser by Sellers at
least two (2) Business Days before the Closing Date. Simultaneously, Sellers
will assign and transfer to Purchaser all of Sellers' rights, title and
interests in and to the Shares by delivering to Purchaser a certificate or
certificates representing the Shares, in genuine and unaltered form, duly
endorsed in blank or accompanied by duly executed stock powers endorsed in
blank, with requisite stock transfer tax stamps, if any, attached. At the
Closing, there shall also be delivered to Sellers and Purchaser the certificates
to be delivered under Articles VI and VII.
Further Assurances; Post-Closing Cooperation. At any time or
from time to time after the Closing, Sellers shall execute and deliver to
Purchaser such other documents and instruments, provide such materials and
information and take such other actions as Purchaser may reasonably request more
effectively to vest title to the Shares in Purchaser and otherwise to cause
Sellers to fulfill its obligations under this Agreement.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Sellers hereby represent and warrant to Purchaser as follows:
Organization of Sellers. TCW I and TCW II are limited
partnerships duly organized, validly existing and in good standing under the
Laws of the State of California. Capital is a general partnership duly
organized, validly existing and in good standing under the Laws of the State of
California. Each Seller has full power and authority to execute and deliver this
Agreement and to perform its obligations hereunder and to consummate the
transactions contemplated hereby, including without limitation to own, hold,
sell and transfer (pursuant to this Agreement) the Shares.
Authority. The execution and delivery by TCW I, TCW II and
Capital of this Agreement, and the performance by TCW I, TCW II, and Capital of
their obligations hereunder, have been duly and validly authorized by their
respective general partners, no other action on the part of TCW I, TCW II or
Capital or their respective limited partners being necessary. This Agreement has
been duly and validly executed and delivered by Sellers and constitutes legal,
valid and binding obligations of Sellers enforceable against Sellers in
accordance with its terms.
Capital Stock. The Shares are duly authorized, validly issued,
outstanding, fully paid and nonassessable. Sellers own the Shares, beneficially
and of record, free and clear of all Liens. The delivery of a certificate or
certificates at the Closing representing the Shares in the manner provided in
Section 1.03 will transfer to Purchaser good and valid title to the Shares, free
and clear of all Liens.
No Conflicts. The execution and delivery by Sellers of this
Agreement do not, the performance by Sellers of their obligations under this
Agreement and the consummation of the transactions contemplated hereby will not:
(a) conflict with or result in a violation or breach of any of
the terms, conditions or provisions of their respective partnership agreements
(or other comparable charter documents);
(b) subject to obtaining the consents, approvals and actions,
making the filings and giving the notices disclosed in Schedule 2.04 hereto,
conflict with or result in a violation or breach of any term or provision of any
Law or Order applicable to Sellers or the Company; or
(c) except as disclosed in Section 2.04 of the Disclosure
Schedule, (i) conflict with or result in a violation or breach of, (ii)
constitute (with or without notice or lapse of time or both) a default under,
(iii) require Seller or the Company to obtain any consent, approval or action
of, make any filing with or give any notice to any Person as a result or under
the terms of, (iv) result in or give to any Person any right of termination,
cancellation, acceleration or modification in or with respect to, (v) result in
or give to any Person any additional rights or entitlement to increased,
additional, accelerated or guaranteed payments under, or (vi) result in the
creation or imposition of any Lien upon Sellers or the Company or any of their
respective Assets and Properties under, any Contract or License to which any
Seller or the Company is a party or by which any of their respective Assets and
Properties is bound.
Governmental Approvals and Filings. Except as disclosed in
Section 2.05 of the Disclosure Schedule, no consent, approval or action of,
filing with or notice to any Governmental or Regulatory Authority on the part of
Sellers or the Company is required in
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connection with the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby.
Legal Proceedings. There are no Actions or Proceedings pending
or, to the knowledge of Sellers, threatened against, relating to or affecting
Sellers or any of their respective Assets and Properties which could reasonably
be expected to result in the issuance of an Order restraining, enjoining or
otherwise prohibiting or making illegal the consummation of any of the
transactions contemplated by this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Sellers as
follows:
Organization. Purchaser is a corporation duly organized and
validly existing under the Laws of the United Kingdom. Purchaser has full
corporate power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the transactions contemplated
hereby.
Authority. The execution and delivery by Purchaser of this
Agreement, and the performance by Purchaser of its obligations hereunder, have
been duly and validly authorized by the Board of Directors of Purchaser, no
other corporate action on the part of Purchaser or its stockholders being
necessary. This Agreement has been duly and validly executed and delivered by
Purchaser and constitutes legal, valid and binding obligations of Purchaser
enforceable against Purchaser in accordance with its terms.
No Conflicts. The execution and delivery by Purchaser of this
Agreement do not, the performance by Purchaser of its obligations under this
Agreement and the consummation of the transactions contemplated hereby will not:
(a) conflict with or result in a violation or breach of any of
the terms, conditions or provisions of the articles of association or by-laws
(or other comparable corporate charter document) of Purchaser;
(b) subject to obtaining the consents, approvals and actions,
making the filings and giving the notices disclosed in Schedule 3.03 hereto,
conflict with or result in a violation or breach of any term or provision of any
Law or Order applicable to Purchaser or any of its Assets and Properties; or
(c) except as disclosed in Schedule 3.03 hereto, (i) conflict
with or result in a violation or breach of, (ii) constitute (with or without
notice or lapse of time or both) a default under, (iii) require Purchaser to
obtain any consent, approval or action of, make any filing with or give any
notice to any Person as a result or under the terms of, or (iv) result in the
creation or imposition of any Lien upon Purchaser or any of its Assets or
Properties under, any Contract or License to which Purchaser is a party or by
which any of its Assets and Properties is bound.
Governmental Approvals and Filings. Except as disclosed in
Schedule 3.04 hereto, no consent, approval or action of, filing with or notice
to any Governmental or Regulatory Authority on the part of Purchaser is required
in connection with the execution, delivery and performance of this Agreement or
the consummation of the transactions contemplated hereby.
Legal Proceedings. There are no Actions or Proceedings pending
or, to the knowledge of Purchaser, threatened against, relating to or affecting
Purchaser or any of its Assets
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and Properties which could reasonably be expected to result in the issuance of
an Order restraining, enjoining or otherwise prohibiting or making illegal the
consummation of any of the transactions contemplated by this Agreement.
Purchase for Investment. The Shares will be acquired by
Purchaser for its own account for the purpose of investment, it being understood
that the right to dispose of such Shares shall be entirely within the discretion
of Purchaser (or such assignee, as the case may be). Purchaser (or such
assignee, as the case may be) will refrain from transferring or otherwise
disposing of any of the Shares, or any interest therein, in such manner as to
cause Seller to be in violation of the registration requirements of the
Securities Act of 1933, as amended, or applicable state securities or blue sky
laws.
ARTICLE IV
COVENANTS OF SELLERS
Sellers covenant and agree with Purchaser that, at all times
from and after the date hereof until the Closing and, with respect to any
covenant or agreement by its terms to be performed in whole or in part after the
Closing, for the period specified therein or, if no period is specified therein,
indefinitely, Sellers will comply with all covenants and provisions of this
Article IV, except to the extent Purchaser may otherwise consent in writing.
Regulatory and Other Approvals. Sellers will, as promptly as
practicable (a) take all commercially reasonable steps necessary or desirable to
obtain all consents, approvals or actions of, make all filings with and give all
notices to Governmental or Regulatory Authorities or any other Person required
of Seller to consummate the transactions contemplated hereby, including without
limitation those described in Sections 2.04 and 2.05 of the Disclosure Schedule,
(b) provide such other information and communications to such Governmental or
Regulatory Authorities or other Persons as Purchaser or such Governmental or
Regulatory Authorities or other Persons may reasonably request in connection
therewith and (c) cooperate with Purchaser in connection with the performance of
its obligations under Sections 5.01 and 5.02. Sellers will provide prompt
notification to Purchaser when any such consent, approval, action, filing or
notice referred to in clause (a) above is obtained, taken, made or given, as
applicable, and will advise Purchaser of any communications (and, unless
precluded by Law, provide copies of any such communications that are in writing)
with any Governmental or Regulatory Authority or other Person regarding any of
the transactions contemplated by this Agreement.
HSR Filings. In addition to and not in limitation of Sellers'
covenants contained in Section 4.01, Sellers will (a) take promptly all actions
necessary to make the filings required of Sellers or their Affiliates under the
HSR Act, (b) comply at the earliest practicable date with any request for
additional information received by Sellers or their Affiliates from the Federal
Trade Commission or the Antitrust Division of the Department of Justice pursuant
to the HSR Act and (c) cooperate with Purchaser in connection with Purchaser's
filing under the HSR Act and in connection with resolving any investigation or
other inquiry concerning the transactions contemplated by this Agreement
commenced by either the Federal Trade Commission or the Antitrust Division of
the Department of Justice or state attorneys general.
Fulfillment of Conditions. Sellers will take all commercially
reasonable steps necessary or desirable and proceed diligently and in good faith
to satisfy each condition to the
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obligations of Purchaser contained in this Agreement and will not take or fail
to take any action that could reasonably be expected to result in the
nonfulfillment of any such condition.
ARTICLE V
COVENANTS OF PURCHASER
Purchaser covenants and agrees with Sellers that, at all times
from and after the date hereof until the Closing, Purchaser will comply with all
covenants and provisions of this Article V, except to the extent Sellers may
otherwise consent in writing.
Regulatory and Other Approvals. Purchaser will as promptly as
practicable (a) take all commercially reasonable steps necessary or desirable to
obtain all consents, approvals or actions of, make all filings with and give all
notices to Governmental or Regulatory Authorities or any other Person required
of Purchaser to consummate the transactions contemplated hereby, including
without limitation those described in Schedules 3.03 and 3.04 hereto, (b)
provide such other information and communications to such Governmental or
Regulatory Authorities or other Persons as Sellers or such Governmental or
Regulatory Authorities or other Persons may reasonably request in connection
therewith and (c) cooperate with Sellers in connection with the performance of
their obligations under Sections 4.01 and 4.02. Purchaser will provide prompt
notification to Sellers when any such consent, approval, action, filing or
notice referred to in clause (a) above is obtained, taken, made or given, as
applicable, and will advise Sellers of any communications (and, unless precluded
by Law, provide copies of any such communications that are in writing) with any
Governmental or Regulatory Authority or other Person regarding any of the
transactions contemplated by this Agreement.
HSR Filings. In addition to and without limiting Purchaser's
covenants contained in Section 5.01, Purchaser will (i) take promptly all
actions necessary to make the filings required of Purchaser or its Affiliates
under the HSR Act, (ii) comply at the earliest practicable date with any request
for additional information received by Purchaser or its Affiliates from the
Federal Trade Commission or the Antitrust Division of the Department of Justice
pursuant to the HSR Act and (iii) cooperate with Sellers in connection with
Sellers' filing under the HSR Act and in connection with resolving any
investigation or other regulatory inquiry concerning the transactions
contemplated by this Agreement commenced by either the Federal Trade Commission
or the Antitrust Division of the Department of Justice or state attorneys
general.
Fulfillment of Conditions. Purchaser will take all
commercially reasonable steps necessary or desirable and proceed diligently and
in good faith to satisfy each condition to the obligations of Sellers contained
in this Agreement and will not take or fail to take any action that could
reasonably be expected to result in the nonfulfillment of any such condition.
ARTICLE VI
CONDITIONS TO OBLIGATIONS OF PURCHASER
The obligations of Purchaser hereunder to purchase the Shares
are subject to the fulfillment, at or before the Closing, of each of the
following conditions (all or any of which may be waived in whole or in part by
Purchaser in its sole discretion):
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Representations and Warranties. Each of the representations
and warranties made by Sellers in this Agreement (other than those made as of a
specified date earlier than the Closing Date) shall be true and correct in all
material respects on and as of the Closing Date as though such representation or
warranty was made on and as of the Closing Date.
Performance. Sellers shall have performed and complied with,
in all material respects, each agreement, covenant and obligation required by
this Agreement to be so performed or complied with by Sellers at or before the
Closing.
Officers' Certificates. Each Seller shall have delivered to
Purchaser a certificate, dated the Closing Date and executed in the name and on
behalf of such Seller by a general partner of such Seller, substantially in the
form and to the effect of Exhibit A hereto.
Orders and Laws. There shall not be in effect on the Closing
Date any Order or Law restraining, enjoining or otherwise prohibiting or making
illegal the consummation of any of the transactions contemplated by this
Agreement or which could reasonably be expected to otherwise result in a
material diminution of the benefits of the transactions contemplated by this
Agreement to Purchaser, and there shall not be pending on the Closing Date any
Action or Proceeding in, before or by any Governmental or Regulatory Authority
which could reasonably be expected to result in the issuance of any such Order
or the enactment, promulgation or deemed applicability to Purchaser or the
Company or the transactions contemplated by this Agreement of any such Law.
Regulatory Consents and Approvals. All consents, approvals and
actions of, filings with and notices to any Governmental or Regulatory Authority
necessary to permit Purchaser and Sellers to perform their obligations under
this Agreement and to consummate the transactions contemplated hereby (a) shall
have been duly obtained, made or given, (b) shall be in form and substance
reasonably satisfactory to Purchaser, (c) shall not be subject to the
satisfaction of any condition that has not been satisfied or waived and (d)
shall be in full force and effect, and all terminations or expirations of
waiting periods imposed by any Governmental or Regulatory Authority necessary
for the consummation of the transactions contemplated by this Agreement,
including under the HSR Act, shall have occurred.
Third Party Consents. All consents (or in lieu thereof
waivers) to the performance by Purchaser and Sellers of their obligations under
this Agreement or to the consummation of the transactions contemplated hereby as
are required under any Contract to which Purchaser or any Seller is a party or
by which any of their respective Assets and Properties are bound (a) shall have
been obtained, (b) shall be in form and substance reasonably satisfactory to
Purchaser, (c) shall not be subject to the satisfaction of any condition that
has not been satisfied or waived and (d) shall be in full force and effect,
except where the failure to obtain any such consent (or in lieu thereof waiver)
could not reasonably be expected, individually or in the aggregate with other
such failures, to materially adversely affect Purchaser or the Business or
Condition of the Company or otherwise result in a material diminution of the
benefits of the transactions contemplated by this Agreement to Purchaser.
Proceedings. All proceedings to be taken on the part of
Sellers in connection with the transactions contemplated by this Agreement and
all documents incident thereto shall be reasonably satisfactory in form and
substance to Purchaser, and Purchaser shall have received copies of all such
documents and other evidences as Purchaser may reasonably request in order to
establish the consummation of such transactions and the taking of all
proceedings in connection therewith.
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ARTICLE VII
CONDITIONS TO OBLIGATIONS OF SELLERS
The obligations of Sellers hereunder to sell the Shares are
subject to the fulfillment, at or before the Closing, of each of the following
conditions (all or any of which may be waived in whole or in part by Seller in
its sole discretion):
Representations and Warranties. Each of the representations
and warranties made by Purchaser in this Agreement shall be true and correct in
all material respects on and as of the Closing Date as though such
representation or warranty was made on and as of the Closing Date.
Performance. Purchaser shall have performed and complied with,
in all material respects, each agreement, covenant and obligation required by
this Agreement to be so performed or complied with by Purchaser at or before the
Closing.
Officers' Certificates. Purchaser shall have delivered to
Sellers a certificate, dated the Closing Date and executed in the name and on
behalf of Purchaser by the President or any [Executive or Senior] Vice President
of Purchaser, substantially in the form and to the effect of Exhibit B hereto,
and a certificate, dated the Closing Date and executed by the Secretary or any
Assistant Secretary of Purchaser, substantially in the form and to the effect of
Exhibit C hereto.
Orders and Laws. There shall not be in effect on the Closing
Date any Order or Law that became effective after the date of this Agreement
restraining, enjoining or otherwise prohibiting or making illegal the
consummation of any of the transactions contemplated by this Agreement.
Regulatory Consents and Approvals. All consents, approvals and
actions of, filings with and notices to any Governmental or Regulatory Authority
necessary to permit Sellers and Purchaser to perform their obligations under
this Agreement and to consummate the transactions contemplated hereby (a) shall
have been duly obtained, made or given, (b) shall not be subject to the
satisfaction of any condition that has not been satisfied or waived and (c)
shall be in full force and effect, and all terminations or expirations of
waiting periods imposed by any Governmental or Regulatory Authority necessary
for the consummation of the transactions contemplated by this Agreement,
including under the HSR Act, shall have occurred.
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Third Party Consents. All consents (or in lieu thereof
waivers) to the performance by Sellers of their obligations hereunder and to the
consummation of the transactions contemplated hereby as are required under the
Contracts listed in Section 7.06 of the Disclosure Schedule (a) shall have been
obtained, (b) shall not be subject to the satisfaction of any condition that has
not been satisfied or waived and (c) shall be in full force and effect.
Proceedings. All proceedings to be taken on the part of
Purchaser in connection with the transactions contemplated by this Agreement and
all documents incident thereto shall be reasonably satisfactory in form and
substance to Sellers, and Sellers shall have received copies of all such
documents and other evidences as Sellers may reasonably request in order to
establish the consummation of such transactions and the taking of all
proceedings in connection therewith.
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS, WARRANTIES,
COVENANTS AND AGREEMENTS
Survival of Representations, Warranties, Covenants and
Agreements. Notwithstanding any right of any party (whether or not exercised) to
investigate the accuracy of the representations and warranties of the other
party contained in this Agreement, Sellers and Purchaser have the right to rely
fully upon the representations, warranties, covenants and agreements of the
other contained in this Agreement. The representations, warranties, covenants
and agreements of Sellers and Purchaser contained in this Agreement will survive
the Closing (a) indefinitely with respect to (i) the representations and
warranties contained in Sections 2.02, 2.03, 3.02 and (ii) the covenants and
agreements contained in Sections 1.04, 12.03 and 12.05; and (b) until six (6)
months after the Closing Date in the case of all other representations and
warranties and any covenant or agreement to be performed in whole or in part on
or prior to the Closing.
ARTICLE IX
TERMINATION
Termination. This Agreement may be terminated, and the
transactions contemplated hereby may be abandoned:
(a) at any time before the Closing, by mutual written
agreement of Sellers and Purchaser; or
(b) at any time after [August 15, 1998] by Sellers or
Purchaser upon notification of the non-terminating party by the terminating
party if the Closing shall not have occurred on or before such date and such
failure to consummate is not caused by a breach of this Agreement by the
terminating party.
Effect of Termination. If this Agreement is validly terminated
pursuant to Section 9.01, this Agreement will forthwith become null and void,
and there will be no liability or obligation on the part of Sellers or Purchaser
(or any of their respective officers, directors, employees, agents or other
representatives or Affiliates), except that the provisions with respect to
expenses in Section 11.03 and confidentiality in Section 11.05 will continue to
apply following any such termination.
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ARTICLE X
DEFINITIONS
Definitions. (a) Defined Terms. As used in this Agreement, the
following defined terms have the meanings indicated below:
"Actions or Proceedings" means any action, suit, proceeding,
arbitration or Governmental or Regulatory Authority investigation or audit.
"Affiliate" means any Person that directly, or indirectly
through one of more intermediaries, controls or is controlled by or is under
common control with the Person specified. For purposes of this definition,
control of a Person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such Person whether by Contract or
otherwise and, in any event and without limitation of the previous sentence, any
Person owning ten percent (10%) or more of the voting securities of another
Person shall be deemed to control that Person.
"Agreement" means this Stock Purchase Agreement and the
Exhibits, the Disclosure Schedule and the Schedules hereto and the certificates
delivered in accordance with Sections 6.03 and 7.03, as the same shall be
amended from time to time.
"Assets and Properties" of any Person means all assets and
properties of every kind, nature, character and description (whether real,
personal or mixed, whether tangible or intangible, whether absolute, accrued,
contingent, fixed or otherwise and wherever situated), including the goodwill
related thereto, operated, owned or leased by such Person, including without
limitation cash, cash equivalents, Investment Assets, accounts and notes
receivable, chattel paper, documents, instruments, general intangibles, real
estate, equipment, inventory, goods and Intellectual Property.
"Business Day" means a day other than Saturday, Sunday or any
day on which banks located in the State of California and in Manchester, England
are authorized or obligated to close.
"Business or Condition of the Company" means the business,
condition (financial or otherwise), results of operations, Assets and Properties
and prospects of the Company and the Subsidiaries taken as a whole.
"Capital" has the meaning ascribed to it in the forepart of
this Agreement.
"Closing" means the closing of the transactions contemplated
by Section 1.03.
"Closing Date" means (a) the fifth Business Day after the day
on which the last of the consents, approvals, actions, filings, notices or
waiting periods described in or related to the filings described in Sections
6.04 through 6.06 and Sections 7.04 through 7.06 has been obtained, made or
given or has expired, as applicable, or (b) such other date as Purchaser and
Seller mutually agree upon in writing.
"Company" has the meaning ascribed to it in the forepart of
this Agreement.
"Contract" means any agreement, lease, license, evidence of
Indebtedness, mortgage, indenture, security agreement or other contract (whether
written or oral).
"Disclosure Schedule" means the record delivered to Purchaser
by Seller herewith and dated as of the date hereof, containing all lists,
descriptions, exceptions and other information and materials as are required to
be included therein by Seller pursuant to this Agreement.
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"Governmental or Regulatory Authority" means any court,
tribunal, arbitrator, authority, agency, commission, official or other
instrumentality of the United States, any foreign country or any domestic or
foreign state, county, city or other political subdivision.
"HSR Act" means Section 7A of the Xxxxxxx Act (Title II of the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended) and the rules
and regulations promulgated thereunder.
"Laws" means all laws, statutes, rules, regulations,
ordinances and other pronouncements having the effect of law of the United
States, any foreign country or any domestic or foreign state, county, city or
other political subdivision or of any Governmental or Regulatory Authority.
"Licenses" means all licenses, permits, certificates of
authority, authorizations, approvals, registrations, franchises and similar
consents granted or issued by any Governmental or Regulatory Authority.
"Liens" means any mortgage, pledge, assessment, security
interest, lease, lien, adverse claim, levy, charge or other encumbrance of any
kind, or any conditional sale Contract, title retention Contract or other
Contract to give any of the foregoing.
"Order" means any writ, judgment, decree, injunction or
similar order of any Governmental or Regulatory Authority (in each such case
whether preliminary or final).
"Person" means any natural person, corporation, general
partnership, limited partnership, proprietorship, other business organization,
trust, union, association or Governmental or Regulatory Authority.
"Purchase Price" has the meaning ascribed to it in Section
1.02.
"Purchaser" has the meaning ascribed to it in the forepart of
this Agreement.
"Sellers" has the meaning ascribed to it in the forepart of
this Agreement.
"Shares" has the meaning ascribed to it in the forepart of
this Agreement.
"Spartech Common Stock" has the meaning ascribed to it in the
forepart of this Agreement.
"TCW I" has the meaning ascribed to it in the forepart of this
Agreement.
"TCW II" has the meaning ascribed to it in the forepart of
this Agreement.
(b) Construction of Certain Terms and Phrases. Unless the
context of this Agreement otherwise requires, (i) words of any gender include
each other gender; (ii) words using the singular or plural number also include
the plural or singular number, respectively; (iii) the terms "hereof," "herein,"
"hereby" and derivative or similar words refer to this entire Agreement; (iv)
the terms "Article" or "Section" refer to the specified Article or Section of
this Agreement; and (v) the phrases "ordinary course of business" and "ordinary
course of business consistent with past practice" refer to the business and
practice of the Company or a Subsidiary. Whenever this Agreement refers to a
number of days, such number shall refer to calendar days unless Business Days
are specified.
ARTICLE XI
MISCELLANEOUS
Notices. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only if
delivered personally or by facsimile
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15
transmission or mailed (first class postage prepaid) to the parties at the
following addresses or facsimile numbers:
If to Purchaser, to:
Vita International, Ltd.
c/o British Vita PLC
Xxxxxx Xxxxxx
Xxxxxxxxx Xxxxxxxxxx
X00 0XX Xxxxxxx
Facsimile No.:
Attn:
with a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: 000-000-0000
Attn: Xxxx X. X'Xxxxxx, Esq.
If to Sellers, to:
The TCW Group
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: 000-000-0000
Attn: Xxxxxx X. Xxxxxxx
with a copy to:
O'Melveny & Xxxxx LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: 000-000-0000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail in the manner described above to the address as provided in this
Section, be deemed given upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other Person to whom a
copy of such notice, request or other communication is to be delivered pursuant
to this Section). Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice specifying such change to the other party hereto.
Entire Agreement. This Agreement supersedes all prior
discussions and agreements between the parties with respect to the subject
matter and contains the sole and entire agreement between the parties hereto
with respect to the subject matter hereof.
Expenses. Except as otherwise expressly provided in this
Agreement, whether or not the transactions contemplated hereby are consummated,
each party will pay its own costs and expenses incurred in connection with the
negotiation, execution and closing of this Agreement and the transactions
contemplated hereby.
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Public Announcements. At all times at or before the Closing,
Sellers and Purchaser will not issue or make any reports, statements or releases
to the public with respect to this Agreement or the transactions contemplated
hereby without the consent of the other, which consent shall not be unreasonably
withheld. If either party is unable to obtain the approval of its public report,
statement or release from the other party and such report, statement or release
is, in the opinion of legal counsel to such party, required by Law in order to
discharge such party's disclosure obligations, then such party may make or issue
the legally required report, statement or release and promptly furnish the other
party with a copy thereof. Sellers and Purchaser will also obtain the other
party's prior approval of any press release to be issued immediately following
the Closing announcing the consummation of the transactions contemplated by this
Agreement, which approval shall not be unreasonably withheld.
Confidentiality. Each party hereto will hold, and will use its
best efforts to cause its Affiliates, and their respective representatives to
hold, in strict confidence from any Person (other than any such Affiliate or
representative), unless (i) compelled to disclose by judicial or administrative
process (including without limitation in connection with obtaining the necessary
approvals of this Agreement and the transactions contemplated hereby of
Governmental or Regulatory Authorities) or by other requirements of Law or (ii)
disclosed in an Action or Proceeding brought by a party hereto in pursuit of its
rights or in the exercise of its remedies hereunder, all documents and
information concerning the other party or any of its Affiliates furnished to it
by the other party or such other party's representatives in connection with this
Agreement or the transactions contemplated hereby, except to the extent that
such documents or information can be shown to have been (a) previously known by
the party receiving such documents or information, (b) in the public domain
(either prior to or after the furnishing of such documents or information
hereunder) through no fault of such receiving party or (c) later acquired by the
receiving party from another source if the receiving party is not aware that
such source is under an obligation to another party hereto to keep such
documents and information confidential. In the event the transactions
contemplated hereby are not consummated, upon the request of the other party,
each party hereto will, and will cause its Affiliates and their respective
representatives to, promptly (and in no event later than five (5) Business Days
after such request) redeliver or cause to be redelivered all copies of documents
and information furnished by the other party in connection with this Agreement
or the transactions contemplated hereby and destroy or cause to be destroyed all
notes, memoranda, summaries, analyses, compilations and other writings related
thereto or based thereon prepared by the party furnished such documents and
information or its representatives.
Waiver. Any term or condition of this Agreement may be waived
at any time by the party that is entitled to the benefit thereof, but no such
waiver shall be effective unless set forth in a written instrument duly executed
by or on behalf of the party waiving such term or condition. No waiver by any
party of any term or condition of this Agreement, in any one or more instances,
shall be deemed to be or construed as a waiver of the same or any other term or
condition of this Agreement on any future occasion. All remedies, either under
this Agreement or by Law or otherwise afforded, will be cumulative and not
alternative.
Amendment. This Agreement may be amended, supplemented or
modified only by a written instrument duly executed by or on behalf of each
party hereto.
No Assignment; Binding Effect. Neither this Agreement nor any
right, interest or obligation hereunder may be assigned by any party hereto
without the prior written consent of the other party hereto and any attempt to
do so will be void, except (a) for assignments and
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17
transfers by operation of Law and (b) that Purchaser may assign any or all of
its rights, interests and obligations hereunder to a wholly-owned subsidiary,
provided that any such subsidiary agrees in writing to be bound by all of the
terms, conditions and provisions contained herein. Subject to the preceding
sentence, this Agreement is binding upon, inures to the benefit of and is
enforceable by the parties hereto and their respective successors and assigns.
Headings. The headings used in this Agreement have been
inserted for convenience of reference only and do not define or limit the
provisions hereof.
Governing Law. This Agreement shall be governed by and
construed in accordance with the Laws of the State of New York applicable to a
contract executed and performed in such State, without giving effect to the
conflicts of laws principles thereof.
Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
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IN WITNESS WHEREOF, this agreement has been duly executed and
delivered by the duly authorized officer of each party hereto as of the date
first above written.
VITA INTERNATIONAL, LTD.
By:_______________________________
Name:
Title:
TCW SPECIAL PLACEMENTS FUND I
By: TCW CAPITAL
By:__________________________
Name: Xxxxxx X. Xxxxxxx
Title: Senior Partner
TCW SPECIAL PLACEMENTS FUND II
By: TCW CAPITAL
By:__________________________
Name: Xxxxxx X. Xxxxxxx
Title: Senior Partner
TCW CAPITAL
By:__________________________
Name: Xxxxxx X. Xxxxxxx
Title: Senior Partner
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