SUBSCRIPTION AGREEMENT
Dated as of March 16, 2001
Among
Fjord Seafood ASA, Toftsundet, 8900 Bronnoysund, Norway, org. no.
976 841 220
(hereinafter "Fjord")
and
ContiSea, LLC, 00 Xxxxxx Xxxxx Xxxxx, Xxxxxxx, Xxxxx, XXX 00000
(hereinafter "Xxxxx")
and
DRFF Corp. ("DC"), 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxx XXX 00000
ContiGroup Companies, Inc. ("CGC"), 000 Xxxx Xxxxxx, Xxx Xxxx, XX
XXX 00000
Seaboard Corporation ("Seaboard"), 0000 Xxxx 00xx Xxxxxx,
Xxxxxxx Xxxxxxx, Xxxxxx XXX 00000
Sabroso AS ("Sabroso"), Xxxxxx Xxxx 00, 0000 Xxxx, Xxxxxx
(hereinafter "Members")
SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT (this "Agreement"), dated as of March 16,
2001, among Fjord Seafood ASA, Toftsundet, 8900 Bronnoysund,
Norway, org. no. 976 841 220 ("Fjord") and ContiSea, LLC, 00
Xxxxxx Xxxxx Xxxxx, Xxxxxxx, Xxxxx, XXX 00000 ("Xxxxx") and DRFF
Corp. ("DC"), ContiGroup Companies, Inc. ("CGC"), Seaboard
Corporation ("Seaboard"), and Sabroso AS (formerly known as
Xxxxx X. Xxxxxxxx Holding AS) ("Sabroso") (DC, CGC, Seaboard and
Sabroso are collectively referred to as the "Members").
W I T N E S S E T H:
WHEREAS, the Members on the Closing Date (as
hereinafter defined) will be the owners, beneficially and of
record, of the membership units of Xxxxx (the "Membership
Interests") set forth opposite their names in Schedule 2.1 (which
Membership Interests constitute, and on the Closing Date will
constitute, all of the equity interests in Xxxxx); and
WHEREAS, the board of directors of Fjord and the
Members have each approved and declared advisable a business
combination in order to advance the long term interests of each,
and have therefore approved this Agreement, the Subscription (as
hereinafter defined) and the other transactions contemplated by
this Agreement; and
WHEREAS, CGC and Seaboard shall contribute their
knowledge and expertise in the fish farming industry, enabling
the parties hereto to collectively develop Fjord to become a
global aquaculture company; and
WHEREAS, the Members agree to cooperate with Fjord to
capitalize on the Members' network within the area of food
production and consumption; and
WHEREAS, such business combination shall be effected by
the terms of this Agreement through a transaction in which Xxxxx
will become a wholly-owned subsidiary of Fjord and the Members
will become shareholders of Fjord; and
WHEREAS, the Members and Xxxxx desire to make certain
representations, warranties, covenants and agreements in
connection with this Agreement; and
NOW, THEREFORE, in consideration of the premises,
representations, warranties and agreements herein contained, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.1. Definitions. In this Agreement, the following terms have
the meanings specified or referred to in this Section 1.1 and
shall be equally applicable to both the singular and plural
forms.
"Affiliate" with respect to a Person, means any other
Person that, directly or indirectly through one or more
intermediaries, controls, is controlled by or is under common
control with the first Person.
"Balance Sheet" has the meaning specified in Section 4.6.
"Balance Sheet Date" means December 31, 2000.
"Claim Notice" has the meaning specified in Section 11.2(a).
"Closing" has the meaning specified in Section 3.1.
"Closing Date" has the meaning specified in Section 3.1.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" means common stock, par value NOK 1 per share, of
Fjord.
"Contaminant" means any waste, pollutant, hazardous or
toxic substance or waste, petroleum, petroleum-based substance or
waste, or any constituent of any such substance or waste,
including but not limited to, those defined by Environmental Laws.
"Xxxxx Ancillary Agreements" means the agreements,
instruments and documents being or to be executed and delivered
by any Member or Xxxxx under this Agreement or in connection
herewith.
"Xxxxx Property" means any real or personal property,
plant, building, facility, structure, underground storage tank,
equipment or unit, or other asset owned, leased or operated by
Xxxxx or any Xxxxx Subsidiary.
"Xxxxx Subsidiary" means any corporation, partnership,
limited liability company, joint venture or other entity in which
Xxxxx (a) owns, or at any relevant time owned, directly or
indirectly, 50% or more of the outstanding voting securities or
equity interests, or (b) is a general partner.
"Court Order" means any judgment, order, award or
decree of any foreign, federal, state, local or other court or
tribunal and any award in any arbitration proceeding.
"Encumbrance" means any lien (statutory or other),
claim, charge, security interest, mortgage, deed of trust,
pledge, hypothecation, assignment, conditional sale or other
title retention agreement, preference, priority or other security
agreement or preferential arrangement of any kind or nature, and
any easement, encroachment, covenant, restriction, right of way,
defect in title or other encumbrance of any kind.
"Enforceability Exceptions" shall mean except as such
enforcement may be limited by applicable bankruptcy, insolvency,
moratorium, or similar laws from time to time in effect which
affect creditors' rights generally, and by legal and equitable
limitations on the enforceability of specific remedies.
"Environmental Encumbrance" means an Encumbrance in
favor of any Governmental Body for (i) any liability under any
Environmental Law, or (ii) damages arising from, or costs
incurred by such Governmental Body in response to, a Release or
threatened Release of a Contaminant into the environment.
"Environmental Laws" means all Requirements of Laws
derived from or relating to all laws or regulations of any
Governmental Body relating to or addressing the indoor or outdoor
environment, including, but not limited to, the Comprehensive
Environmental Response and its Compensation and Liability Act
regulations ("CERCLA"), Endangered Species Act, Clean Water Act,
RCRA, and any state equivalent thereof, as well as legal or
regulatory requirements of the U. S. Coast Guard, U. S. Army
Corps of Engineers, U. S. Fish and Wildlife Services, National
Marine Fisheries Service, U. S. Environmental Protection Agency,
Maine Department of Marine Resources, Maine Department of Inland
Fisheries and Wildlife, Maine Department of Agriculture and Maine
Department of Environmental Protection.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended.
"Expenses" means any and all reasonable, out-of-pocket
expenses incurred in connection with investigating or defending
any claim, action, suit or proceeding incident to any matter
indemnified against hereunder (including court filing fees, court
costs, arbitration fees or costs, witness fees, and reasonable
fees and disbursements of legal counsel, investigators, expert
witnesses, consultants, accountants and other professionals).
"Fjord Ancillary Agreements" means all agreements,
instruments and documents being or to be executed and delivered
by Fjord under this Agreement or in connection herewith.
"Fjord Shareholder Approval" has the meaning specified
in Section 7.5(b).
"Fjord Stock Plans" has the meaning specified in Section 6.2.
"Fjord Subsidiary" means any corporation, partnership,
limited liability company, joint venture or other entity in which
Fjord (a) owns, directly or indirectly, 50% or more of the
outstanding voting securities or equity interests or (b) is a
general partner.
"Governmental Body" means any foreign, federal, state,
local or other governmental, legislative, executive or judicial
authority or regulatory body.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended, and the regulations
promulgated thereunder.
"Indebtedness for Borrowed Money" means all obligations
for borrowed money, including (a) any obligation owed for all or
any part of the purchase price of property or other assets or for
services or for the cost of property or other assets constructed
or of improvements to such property or other assets, other than
current trade accounts payable included in current liabilities
and incurred in respect of property or services purchased in the
ordinary course of business, (b) any capital lease obligation,
(c) any obligation (whether fixed or contingent) to reimburse any
bank or other Person in respect of amounts paid or payable under
a standby letter of credit, (d) any guarantee with respect to
indebtedness for borrowed money (of the kind otherwise described
in this definition) of another Person, and (e) accounts payable
unpaid and outstanding over 90 days.
"Indemnified Party" has the meaning specified in Section 11.2(a).
"Indemnitor" has the meaning specified in Section 11.2(a).
"IRS" means the Internal Revenue Service.
"Letter of Intent" means the letter of intent dated
December 20, 2000, with amendments.
"Losses" means any and all losses, costs, obligations,
liabilities, settlement payments, awards, judgments, fines,
penalties, damages, expenses, deficiencies or other charges.
"Material Adverse Effect" means any condition,
circumstance, change or effect (or any development that, insofar
as can be reasonably foreseen, would result in any condition,
circumstance, change or effect) that is materially adverse to the
assets, business, financial condition, results of operations or
prospects of Xxxxx or the Xxxxx Subsidiaries, or Fjord and the
Fjord Subsidiaries, as the case may be, taken as a whole, other
than effects caused by (i) changes resulting from the
announcement of this Agreement and the proposed consummation of
the Subscription, (ii) fluctuations in currency exchange rates,
or (iii) changes resulting from conditions in the seafood
harvesting, processing and distribution industry, or in the
aquaculture industry, generally.
"Members" has the meaning specified in the first
paragraph of this Agreement.
"Membership Interests" has the meaning specified in the
first recital of this Agreement.
"NOK" means Norwegian Kroner, the local currency of
Norway.
"Operating Agreement" means the Operating Agreement of
Xxxxx dated as of April 29, 1999, among Xxxxx and the Members.
"Person" means any individual, corporation,
partnership, joint venture, limited liability company,
association, joint-stock company, trust, unincorporated
organization or Governmental Body.
"Prospectus" means the Prospectus of Fjord as described
in Section 7.5.
"RCRA" means the Resource Conservation and Recovery
Act, 42 U.S.C. 6901 et seq., and the regulations promulgated
thereunder.
"Release" means any release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal,
leaching or migration of a Contaminant into the indoor or outdoor
environment or into or out of any Xxxxx Property, including the
movement of Contaminants through or in the air, soil, surface
water, sea or ocean water, groundwater or Xxxxx Property.
"Remedial Action" means actions required to (i) clean
up, remove, treat or in any other way address Contaminants in the
indoor or outdoor environment, (ii) prevent the Release or
threatened Release or minimize the further Release of
Contaminants or (iii) investigate and determine if a remedial
response is needed and to design such a response and post-
remedial investigation, monitoring, operation and maintenance and
care.
"Requirements of Laws" means any foreign, federal,
state or local laws, statutes, regulations, rules, codes or
ordinances enacted, adopted, issued or promulgated by any
Governmental Body (including those pertaining to electrical,
building, zoning, subdivision, land use, environmental and
occupational safety and health requirements) or common law, and
any permits or other authorizations issued thereunder.
"Share Issuance" means the issuance of the Shares by
Fjord pursuant to Section 2.4 of this Agreement.
"Shareholders Meeting" has the meaning specified in
Section 7.5(b).
"Shares" has the meaning specified in Section 2.1.
"Straddle Period" means any taxable year or period
beginning before and ending after the Closing Date.
"Subsidiary" means, with respect to any Person, any
corporation, partnership, limited liability company, joint
venture or other entity in which such Person (a) owns, or at any
relevant time owned, directly or indirectly, 50% or more of the
outstanding voting securities or equity interests, or (b) is a
general partner.
"Tax" (and, with correlative meaning, "Taxes" and
"Taxable") means any federal, state, local or foreign net income,
gross income, gross receipts, windfall profit, severance,
property, production, sales, use, license, excise, franchise,
employment, payroll, withholding, alternative or add-on minimum,
accumulated earnings, ad valorem, value-added, transfer, stamp,
or environmental tax, or any other tax, custom, duty,
governmental fee or other like assessment or charge of any kind
whatsoever, together with any interest or penalty, addition to
tax or additional amount imposed by any governmental authority.
"Tax Return" means any return, report or similar
statement required to be filed with respect to any Tax (including
any attached schedules), including, without limitation, any
information return, claim for refund, amended return or
declaration of estimated Tax.
"Tax Sharing Arrangement" means any written or
unwritten agreement or arrangement for the allocation or payment
of Tax liabilities or payment for Tax benefits with respect to a
consolidated, combined or unitary Tax Return which Tax Return
includes Xxxxx or any Xxxxx Subsidiary.
"Trade Secrets" means confidential ideas, trade
secrets, know-how, concepts, methods, processes, formulae,
reports, data, customer lists, mailing lists, business plans, or
other proprietary information, except for any such information
which (i) is or becomes available to a party from a source other
than the furnishing party and not in violation of the rights of
the furnishing party, (ii) is or becomes available to the public
other than as a result of wrongful disclosure by any party, (iii)
is required to be disclosed under applicable law or judicial
process, but only to the extent it must be disclosed, and only
after giving notice to the other party as soon in advance as
practicable, in order to enable that party to seek appropriate
alternative remedies and/or limitations, or (iv) a party
reasonably deems necessary to disclose to obtain any of the
consents or approvals contemplated hereby, subject to securing
reasonable assurances and agreements regarding confidentiality.
"Transaction Tax" means any Tax imposed on or by reason
of any of the transactions contemplated by this Agreement,
including, without limitation, any income, franchise or other Tax
imposed on any Member, Xxxxx or any Xxxxx Subsidiary as a result
of any such transaction and any real property transfer,
withholding, or gains Tax, sales Tax, use Tax, stamp Tax, stock
transfer Tax or other Tax imposed on any such transaction.
"U.S. GAAP" has the meaning specified in Section 4.6.
1.2. Interpretation. As used in this Agreement, the word
"including" means without limitation, the word "or" is not
exclusive and the words "herein," "hereof," "hereby," "hereto"
and "hereunder" refer to this Agreement as a whole. Unless the
context otherwise requires, references herein: (i) to Articles,
Sections, Exhibits and Schedules mean the Articles and Sections
of and the Exhibits and Schedules attached to this Agreement;
(ii) to an agreement, instrument or other document means such
agreement, instrument or other document as amended, supplemented
and modified from time to time to the extent permitted by the
provisions thereof and by this Agreement; and (iii) to a statute
means such statute as amended from time to time and includes any
successor legislation thereto. The Schedules and Exhibits
referred to herein shall be construed with and as an integral
part of this Agreement to the same extent as if they were set
forth verbatim herein. Titles to Articles and headings of
Sections are inserted for convenience of reference only and shall
not be deemed a part of or to affect meaning or interpretation of
this Agreement.
ARTICLE II
SUBSCRIPTION; GOVERNANCE MATTERS
2.1. Subscription/Conversion of Equity Interests. Upon the terms
and subject to the conditions set forth in this Agreement, at the
Closing Date (as defined in Section 3.1):
(a) The Membership Interests of Xxxxx shall be assigned to
Fjord, and as consideration for such assignment Fjord shall
deliver to the Members (i) the number of shares of Common Stock
of Fjord (the "Shares") as set forth in Schedule 2.1 to this
Agreement, the aggregate of which shall consist of 14 000 000
Shares, (ii) and $1 000 000 (U.S.). Upon assignment of the
Membership Interests, each Member shall cease to have any rights
with respect thereto and Fjord shall be the sole member of Xxxxx.
If prior to the Closing Date the outstanding shares of Common
Stock of Fjord shall have changed into a different number of
shares or a different class by recapitalization or
reclassification, Fjord shall split or combine its Common Stock
or declare or pay a stock dividend or other distribution in its
Common Stock (including any distribution by Fjord of Common Stock
in connection with a merger, acquisition or similar transaction
without the consent of Xxxxx), or increase the number of
outstanding options, warrants or other rights to acquire Common
Stock, the number of Shares issued pursuant to this Section 2.1
shall be appropriately adjusted to reflect such recapitalization,
reclassification, split, combination, dividend or other
distribution; provided, however, that no such equitable
adjustment shall be made in connection with any distribution by
Fjord of Common Stock in connection with a merger, acquisition or
similar transaction that has been approved by the board of
directors of Fjord and disclosed in writing to each of the
Members prior to the date hereof, or that is otherwise consented
to by Xxxxx.
2.2. Operating Agreement, Management of Xxxxx. At the Closing
Date, the Operating Agreement of Xxxxx shall be amended and
restated satisfactory to Fjord, including the change of its name
to a name that does not use the word "Xxxxx."
2.3. Board of Directors and Management of Fjord. (a) As of
the Closing Date, until duly changed in compliance with
applicable law and the Articles of Association of Fjord, the
board of directors of Fjord shall recommend to the shareholders
meeting that the Board consist of 4 current Fjord board members,
one other person chosen by CGC, one other chosen by Seaboard, and
two employee representatives, each of whom shall serve for a two
year term.
(b) At the Closing Date, until duly removed in compliance
with applicable law and the Articles of Association of Fjord,
Xxxx Xxxxxx Torgnes shall continue as the Chief Executive Officer
of Fjord.
2.4 Subscription and Issuance Procedures. On the Closing
Date the following steps and actions shall be taken by the
relevant parties with a view to facilitating and securing a
closing with as simultaneous contributions and deliveries by the
respective parties as practically possible, in the following
sequence:
Firstly, each of the Members shall subscribe to the number
of Shares set out opposite each Member's name in Schedule 2.1,
each such share with a par value of NOK 1, and which as of the
Closing Date shall be vested with such shareholder rights as set
out in Section 7.5. Such subscriptions shall be contributed and
fully paid to Fjord simultaneous with the subscription on the
Closing Date by way of each Member assigning its ownership to and
interest in its respective Membership Interests as set out in
Schedule 2.1.
Secondly, and upon receipt of (i) the subscriptions and
contributions in full from all the Members in accordance with the
immediately preceding paragraph, and (ii) the required
confirmation and written statement from its auditors, KPMG AS,
Fjord shall promptly proceed to (1) cause the capital increase in
the amount of NOK 14 000 000 to be registered with the Norwegian
Registry of Business Enterprises, and (2) instruct the account
manager of its shareholders' register to register the Members in
the shareholders' register of Fjord with the Computerized
Securities Register ("VPS") in accordance with the requirements
of Section 4-4 of the 1997 Norwegian Public Limited Liability
Company Act.
Thirdly, as soon as practically possible upon and subject to
the registration of the capital increase of NOK 14 000 000 having
been effected with the Norwegian Registry for Business
Enterprises, and further provided that Fjord shall have received
the information referenced in the last sentence of this Section
in accordance therewith, Fjord shall cause the Shares to be
issued to the Members in accordance with the allocation set out
in Schedule 2.1 (the "Share Issuance") by way of crediting each
Member's account with VPS with the relevant number of Shares as
set out in Schedule 2.1. Not later than two business days prior
to the Closing Date, Fjord shall receive a written instruction
from each Member specifying: (i) the name and address for such
Member, (ii) U.S. Federal Tax I.D. Number of such Member; and
(iii) in any event, the account number established in the name of
such Member with VPS to which the Shares will be credited upon
issuance.
ARTICLE III
CLOSING
3.1. Closing Date. Upon the terms and subject to the conditions
of this Agreement the subscription for the Shares (the "Closing")
shall take place as soon as reasonably practicable after the
conditions set forth in Article IX have been satisfied (but in no
event later than two business days after such time), at the
offices of Advocatfirmaet Selmer DA, Norway, or at such other
place or at such other time as shall be agreed upon by Fjord and
the Members. The time and date on which the Closing is actually
held are referred to herein as the "Closing Date."
3.2. Additional Deliveries of Fjord. Subject to fulfillment or
waiver of the applicable conditions set forth in Article IX, at
the Closing Fjord shall deliver to the Members all the following:
(a) Copy of Fjord's Articles of Association, certified as of a
recent date by the Register of Business Enterprises of Norway;
(b) Certificate of company registration of Fjord issued as of a
recent date by the Register of Business Enterprises of Norway;
(c) Certificates of a senior officer of Fjord, as applicable,
dated the Closing Date, in form and substance reasonably
satisfactory to Xxxxx, as to (i) no amendments to the Articles of
Association of Fjord since a specified date; (ii) the resolutions
of the board of directors and shareholders of Fjord authorizing
the execution and performance of this Agreement, the Fjord
Ancillary Agreements and the transactions contemplated hereby and
thereby;
(d) All consents, waivers or approvals obtained by Fjord with
respect to the consummation of the transactions contemplated by
this Agreement and the Fjord Ancillary Agreements;
(e) [RESERVED];
(f) [RESERVED]; and
(g) Such other documents, certificates or instruments as
the Members may reasonably request in order to confirm the
issuance of the Shares to them as contemplated by this Agreement
and to enable them immediately to exercise all rights and enjoy
all benefits with respect thereto.
3.3. Deliveries of the Members and Xxxxx. Subject to fulfillment
or waiver of the applicable conditions set forth in Article IX,
at the Closing the Members and Xxxxx shall deliver to Fjord all
the following:
(a) Copies of the Articles of Organization of each of Xxxxx,
Atlantic Salmon of Maine Limited Liability Company ("ASM"), and
Ducktrap River Fish Farm, LLC ("Ducktrap"), and the Articles of
Incorporation of each of Treat's Island Fisheries ("Treat's"),
Island Aquaculture Company ("IAC"), and New DHC, Inc. ("DHC"),
each certified as of a recent date by the Secretary of State for
the State of Maine;
(b) Certificates of good standing of each of Xxxxx and the Xxxxx
Subsidiaries issued as of a recent date by the Secretary of State
for the State of Maine;
(c) Certificate of the secretary or an assistant secretary of
Xxxxx, dated the Closing Date, in form and substance reasonably
satisfactory to Fjord, as to (i) no amendments to the Articles of
Organization of Xxxxx since a specified date; (ii) the Operating
Agreement; (iii) the resolutions of the Management Committee and
the members of Xxxxx authorizing the execution and performance of
this Agreement, any Xxxxx Ancillary Agreement to which Xxxxx is a
party and the transactions contemplated hereby and thereby; and
(iv) incumbency and signatures of the officers of Xxxxx executing
this Agreement and any Xxxxx Ancillary Agreement to which Xxxxx
is a party;
(d) Certificates of the secretary or an assistant secretary of
each of the Members, as applicable, dated the Closing Date, in
form and substance reasonably satisfactory to Fjord, as to
(i) the resolutions of the board of directors and, if required,
of the shareholders of Member authorizing the execution and
performance of this Agreement, any Xxxxx Ancillary Agreement to
which such entity is a party and the transactions contemplated
hereby and thereby; and (ii) incumbency and signatures of the
officers executing this Agreement and any Xxxxx Ancillary
Agreement to which such entity is a party;
(e) All consents, waivers or approvals required to be obtained
by the Members, Xxxxx or the Xxxxx Subsidiaries with respect to
the consummation of the transactions contemplated by this
Agreement and the Xxxxx Ancillary Agreements;
(f) [RESERVED];
(g) The certificates contemplated by Section 9.3(a) and Section
9.3(b), each duly executed by the Members and the Chief Executive
Officer and Chief Financial Officer of Xxxxx;
(h) A signed resignation of each of the Managers and officers of
Xxxxx and the Managers, directors, and officers (as applicable)
of each of the Xxxxx Subsidiaries, as set forth in Schedule
3.3(H);
(i) [RESERVED];
(j) An Assignment of Membership Interests duly executed by each
of the Members in favor of Fjord;
(k) Written evidence reasonably satisfactory to Fjord of the
cancellation of all contractual arrangements between Xxxxx and
the Members or their respective Affiliates and the release of any
and all claims of such entities against Xxxxx (other than
distributions pursuant to Section 9.2(b) of the Xxxxx Operating
Agreement with respect to income taxes arising out of operations
of Xxxxx and the Xxxxx Subsidiaries prior to the Closing Date, as
provided more fully in Section 10.1(b) of this Agreement),
including claims for debts due to CGC or Seaboard from Xxxxx or
the Xxxxx Subsidiaries; provided, however, that upon the written
consent of Fjord, any agreements related to the future
distribution and marketing of Conti's products shall remain in
full force and effect;
(l) Such other instruments of sale, transfer, conveyance,
assignment, and delivery and confirmation as Fjord may reasonably
deem necessary in order more effectively to transfer, convey and
assign to Fjord and to place Fjord in possession and control of,
and to confirm Fjord's title to, the Membership Interests, and to
assist Fjord in exercising all rights and enjoying all benefits
with respect thereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO XXXXX
As an inducement to Fjord to enter into this Agreement
and to consummate the transactions contemplated hereby, the
Members and Xxxxx each represent and warrant to Fjord and agree
as follows:
4.1. Organization. Each of Xxxxx, ASM, and Ducktrap is a limited
liability company ("LLC") duly organized, validly existing and in
good standing under the laws of the State of Maine. Each of
Treat's, IAC, and DHC is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Maine. Xxxxx and each of the Xxxxx Subsidiaries is duly
qualified to transact business as a foreign limited liability
company or corporation, as applicable, and is in good standing in
each of the jurisdictions listed in Schedule 4.1, which
jurisdictions are the only jurisdictions in which the ownership
or leasing of its assets or the conduct of its business requires
such qualification, except for jurisdictions where the failure to
be so duly qualified and in good standing would not have a
Material Adverse Effect. No other jurisdiction has demanded,
requested or otherwise indicated that Xxxxx or any of the Xxxxx
Subsidiaries is required so to qualify. Xxxxx and each of the
Xxxxx Subsidiaries has full corporate or LLC, as the case may be,
power and authority to own or lease and to operate and use its
properties and assets and to carry on its business as now
conducted. True and complete copies of the Articles of
Organization and the Operating Agreement of each of Xxxxx, ASM,
and Ducktrap, and the Articles of Incorporation and Bylaws of
each of Treat's, IAC, and DHC, and all amendments to each
thereto, have previously been delivered to Fjord by the Members
and Xxxxx.
4.2. Capital Structure. The equity of Xxxxx consists solely of
the Membership Interests. Except for this Agreement and the
Operating Agreement, there are no agreements, arrangements,
options, warrants, calls, rights or commitments of any character
relating to the issuance, sale, purchase or redemption of any
participation, membership or other equity interest in Xxxxx.
Except as set forth in (i) this Agreement, (ii) the Operating
Agreement, and (iii) Conti's Employment Agreement with Xxxxxxx
XxxxXxxxxx, no holder of Membership Interests has any preemptive,
equity purchase or other rights to acquire any participation,
membership or other equity interest in Xxxxx. All of the
Membership Interests are validly issued, fully paid and
nonassessable and were not issued in violation of any preemptive
or similar rights.
4.3. Authority. Xxxxx has the requisite LLC power and authority
to effect the transaction, to enter into this Agreement and the
Xxxxx Ancillary Agreements and to consummate the transactions
contemplated hereby and thereby. The execution and delivery of
this Agreement and the Xxxxx Ancillary Agreements by Xxxxx, and
the consummation by Xxxxx of the transactions contemplated hereby
and thereby, have been duly authorized by all necessary action on
the part of Xxxxx and the Members. This Agreement has been duly
authorized, executed and delivered by Xxxxx and is the legal,
valid and binding obligation of Xxxxx enforceable in accordance
with its terms, and each of the Xxxxx Ancillary Agreements has
been duly authorized by Xxxxx and upon execution and delivery by
it will be a legal, valid and binding obligation of it
enforceable in accordance with its terms (except to the extent of
the Enforceability Exceptions).
4.4. Consents and Approvals; No Violations. Except as set forth
in Schedule 4.4, neither the execution and delivery of this
Agreement or any of the Xxxxx Ancillary Agreements or the
consummation of any of the transactions contemplated hereby or
thereby nor compliance with or fulfillment of the terms,
conditions and provisions hereof or thereof will:
(i) conflict with, result in a breach of the terms, conditions
or provisions of, or constitute a default, an event of default or
an event creating rights of acceleration, termination or
cancellation or a loss of rights under, or result in the creation
or imposition of any Encumbrance upon any of the assets or
properties of Xxxxx or any Xxxxx Subsidiary, under (1) the
Articles of Organization or Operating Agreement, or Articles of
Incorporation or Bylaws, or other organizational documents, as
applicable, of Xxxxx or of any Xxxxx Subsidiary, (2) any material
note, instrument, agreement, mortgage, lease, license, franchise,
permit or other authorization, right, restriction or obligation
to which Xxxxx or any Xxxxx Subsidiary is a party or any of the
respective assets or properties of Xxxxx or any Xxxxx Subsidiary
is subject or by which Xxxxx or any Xxxxx Subsidiary is bound,
(3) any Court Order to which Xxxxx or any Xxxxx Subsidiary is a
party or any of the respective assets or properties of Xxxxx or
any Xxxxx Subsidiary is subject or by which Xxxxx or any Xxxxx
Subsidiary is bound, or (4) any Requirements of Laws affecting
Xxxxx or any Xxxxx Subsidiary or any of their respective assets
or properties; or
(ii) require the approval, consent, authorization or act of, or
the making by any member or shareholder of, Xxxxx or any Xxxxx
Subsidiary of any declaration, filing or registration with any
Person.
4.5. Subsidiaries and Investments. (a) Except as set forth in
Schedule 4.5, Xxxxx does not, directly or indirectly, own, of
record or beneficially, any outstanding voting securities or
other equity interests in or control any corporation, limited
liability company, partnership, trust, joint venture or other
entity.
(b) Schedule 4.5 sets forth with respect to each Xxxxx
Subsidiary on the date hereof the number of authorized, issued
and outstanding shares of capital stock of each class, the number
of issued shares of capital stock held as treasury shares and the
number of shares of capital stock unissued and reserved for any
purpose, or the equivalent information about membership interests
with respect to any Xxxxx Subsidiary which is a limited liability
company. Except as set forth in Schedule 4.5, there are no
agreements, arrangements, options, warrants, calls, rights or
commitments of any character relating to the issuance, sale,
purchase or redemption of any shares of capital stock or
membership interests of any of the Xxxxx Subsidiaries. All of
the outstanding shares of capital stock or membership interests
of each of the Xxxxx Subsidiaries are validly issued, fully paid
and nonassessable and, except as set forth in Schedule 4.5, are
owned by Xxxxx, of record and beneficially, free from all
Encumbrances of any kind.
4.6. Financial Statements. Schedule 4.6 contains (i) the audited
consolidated balance sheets of Xxxxx and the Xxxxx Subsidiaries
as of December 31, 2000 (the "Balance Sheet") and the related
consolidated statements of income and cash flows for the two
years then ended, together with the appropriate notes to such
financial statements and the report thereon of Xxxxx Xxxx XxXxxx
& Xxxxxx, and (ii) the consolidated balance sheet of Xxxxx as of
January 31, 2001, and the related consolidated statements of
income for the one month then ended, together with appropriate
notes to such financial statements. Subject, in the case of
interim financial statements, to normal recurring year-end
adjustments (the effect of which will not, individually or in the
aggregate, be materially adverse) and the absence of notes
(that, if presented, would not differ materially from those
included in the Balance Sheet), such balance sheets and
statements of income and cash flow have been prepared in
conformity with United States generally accepted accounting
principles ("U.S. GAAP") consistently applied and present fairly
the financial position and results of operations and cash flow of
Xxxxx and the Xxxxx Subsidiaries as of their respective dates and
for the respective periods covered thereby.
4.7. Taxes. (a) Except as set forth in Schedule 4.7(A),
(i) Xxxxx and each Xxxxx Subsidiary have filed all Tax Returns
that were required to be filed by them; (ii) all such Tax Returns
are complete and accurate in all material respects to the
knowledge of Xxxxx and disclose all Taxes required to be paid by
Xxxxx and each Xxxxx Subsidiary for the periods covered thereby
and all Taxes shown to be due on such Tax Returns have been
timely paid; (iii) except for the distribution provided for in
Section 10.1(c), all income taxes of any Member arising by reason
of ownership of Membership Interests in Xxxxx for periods ending
on or before the Closing Date, have been paid or reserved for by
each Member; (iv) neither Xxxxx nor Xxxxx Subsidiary has waived
or been requested to waive any statute of limitations in respect
of Taxes which waiver is currently in effect; (v) the Tax Returns
referred to in clause (i) have been examined by the appropriate
taxing authority or the period for assessment of the Taxes in
respect of which such Tax Returns were required to be filed has
expired; (vi) there is no action, suit, investigation, audit,
claim or assessment pending or proposed or threatened with
respect to Taxes of Xxxxx or Xxxxx Subsidiary, and to the
knowledge of the Members and Xxxxx, no basis exists therefor;
(vii) all deficiencies asserted or assessments made as a result
of any final determination arising from any examination of the
Tax Returns referred to in clause (i) have been paid in full;
(viii) all Tax Sharing Arrangements and Tax indemnity
arrangements relating to Xxxxx or any Xxxxx Subsidiary (other
than this Agreement) will terminate prior to the Closing Date and
neither Xxxxx nor any Xxxxx Subsidiary will have any liability
thereunder on or after the Closing Date; (ix) there are no liens
for Taxes upon the assets of Xxxxx or any Xxxxx Subsidiary except
liens relating to current Taxes not yet due; and (x) all Taxes
which Xxxxx or any Xxxxx Subsidiary are required by law to
withhold, to collect for payment or pay have been duly withheld
and collected, and have been paid or accrued, reserved against
and entered on the books of Xxxxx or Xxxxx Subsidiary, as further
provided in Section 10.1(b).
(b) Except as set forth in Schedule 4.7(B), no transaction
contemplated by this Agreement is subject to withholding under
Section 1445 of the Code (relating to "FIRPTA"), or corresponding
state, local or foreign tax regime, and no federal, state, local
or foreign, stock transfer Taxes, sales Taxes, use Taxes, real
estate transfer or gains Taxes, or other similar Taxes will be
imposed on the transactions contemplated by this Agreement.
(c) No payment or other benefit, and no acceleration of the
vesting of any options, payments or other benefits, will be, as a
direct or indirect result of the transactions contemplated by
this Agreement, an "excess parachute payment" to a "disqualified
individual" as those terms are defined in Section 280G of the
Code and the Treasury Regulations promulgated thereunder. Except
as set forth in Schedule 4.7(C), no payment or other benefit, and
no acceleration of the vesting of any options, payments or other
benefits, will, as a direct or indirect result of the
transactions contemplated by this Agreement, be (or under
Section 280G of the Code and the Treasury Regulations promulgated
thereunder be presumed to be) a "parachute payment" to a
"disqualified individual" as those terms are defined in Section
280G of the Code and the Treasury Regulations promulgated
thereunder, without regard to whether such payment or
acceleration is reasonable compensation for personal services
performed or to be performed in the future.
4.8. Environmental Matters. Except as set forth in Schedule 4.8:
(a) the operations of Xxxxx and the Xxxxx Subsidiaries have
at all times complied in all material respects with all
applicable Environmental Laws and to the knowledge of Xxxxx or
the Xxxxx Subsidiaries there are no circumstances that may
prevent or interfere with Fjord's ability to comply with all
applicable Environmental Laws after the Closing;
(b) Xxxxx and the Xxxxx Subsidiaries have obtained all
environmental, health and safety permits from the applicable
Governmental Bodies necessary by Requirements of Laws for the
operation of its business, all such governmental permits
currently are in full force and effect, Xxxxx and the Xxxxx
Subsidiaries currently are in compliance in all material respects
with all terms and conditions of such permits and to the
knowledge of Xxxxx or the Xxxxx Subsidiaries there is no proposal
to revoke, suspend, modify or not review any such governmental
permits;
(c) none of Xxxxx, any of the present Xxxxx Property or
operations or, to the knowledge of Xxxxx or the Xxxxx
Subsidiaries, any past Xxxxx Property or operations, is subject
to any on-going investigation by, order from or agreement with
any Person (including without limitation any prior owner or
operator of Xxxxx Property) respecting (i) any Environmental Law,
(ii) any Remedial Action or (iii) any claim of Losses and
Expenses arising from the Release or threatened Release of a
Contaminant into the indoor or outdoor environment;
(d) Xxxxx is not subject or a party to any judicial,
administrative, or other proceeding, order, judgment, decree or
settlement alleging or addressing a violation of or liability
under any Environmental Law, nor does Xxxxx or the Xxxxx
Subsidiaries have knowledge of any present or past actions,
activities, circumstances, conditions, events or incidents that
could form the basis for any such proceeding, order, judgment,
decree, settlement or liability;
(e) Xxxxx has not (nor has it at any time been required to):
(i) reported a Release of a hazardous substance pursuant to
Section 103(a) of CERCLA, or any state equivalent; or
(ii) filed any notice under any applicable Environmental Law
reporting a material violation of any applicable Environmental
Law;
(f) there is not now, nor to the knowledge of Xxxxx or
the Xxxxx Subsidiaries has there ever been, on or in any
Xxxxx Property:
(i) any generation, manufacture, refining,
transport, handling, processing treatment, recycling,
storage or disposal of any hazardous waste, as that
term is defined under 40 CFR Part 261 or any state
equivalent, that requires or required a governmental
permit pursuant to Section 3005 of RCRA or other
applicable Environmental Law;
(ii) any underground storage tank or surface
impoundment or landfill, waste pile, or disposal of
solid waste other than a licensed waste disposal
system; or
(iii) any polychlorinated biphenyls (PCB) used
in pigments, hydraulic oils, electrical transformers or
other equipment;
(g) Xxxxx has not received any formal or informal
demand letter, inquiry, notice or claim to the effect that
it is or may be liable to any Person as a result of the
Release or threatened Release of a Contaminant or alleged
violation of any Environmental Law, nor to the knowledge of
Xxxxx or the Xxxxx Subsidiaries are there any facts or
conditions relating to any Xxxxx Property or the operations
of Xxxxx that would reasonably be expected to give rise to
any such notice or claim;
(h) no Environmental Encumbrance has attached to any
Xxxxx Property, nor is there any judicial, administrative or
other proceeding pending or to the knowledge of Xxxxx or the
Xxxxx Subsidiaries threatened for imposition of any
Environmental Encumbrance, nor is there any basis for any
such Environmental Encumbrance or proceeding;
(i) any asbestos or lead containing material which is
on or part of any Xxxxx Property is in good repair according
to the current standards and practices governing such
material, and its presence or condition does not violate in
any material respect any currently applicable Environmental
Law.
4.9. Employee Benefit Plans. (a) Schedule 4.9 identifies
all consulting or employment agreements and other agreements with
individual consultants or employees to which Xxxxx or a Xxxxx
Subsidiary is a party and which are either currently effective or
will become effective at the Closing Date. Copies of all such
written agreements as well as any employee handbooks, policy
manuals and job application forms used by Xxxxx and the Xxxxx
Subsidiaries have been delivered to Fjord. A list of the names
and dates of hire of each employee of Xxxxx and each such
person's rate of compensation have also been delivered to Fjord.
(b) Schedule 4.9 contains a complete list of the following:
(i) "employee welfare benefit plan," as defined
in Section 3(1) of ERISA, which is maintained or
administered by Xxxxx or a Xxxxx Subsidiary, or to
which Xxxxx, a Xxxxx Subsidiary, or employees of Xxxxx
or a Xxxxx Subsidiary contribute, and which covers any
employee or former employee of Xxxxx or a Xxxxx
Subsidiary or under which Xxxxx or a Xxxxx Subsidiary
has any liability;
(ii) "employee benefit plan," as defined in
Section 3(3) of ERISA, which is maintained or
administered by Xxxxx or a Xxxxx Subsidiary in
connection with any trust described in Section
501(c)(9) of the Code, as amended;
(iii) "employee pension benefit plan," as defined
in Section 3(2) of ERISA which is maintained or
administered by Xxxxx or a Xxxxx Subsidiary, or to
which Xxxxx, a Xxxxx Subsidiary or employees of Xxxxx
or a Xxxxx Subsidiary contribute, and which covers any
employee or former employee of Xxxxx or a Xxxxx
Subsidiary or under which Xxxxx or a Xxxxx Subsidiary
has any liability; and
(iv) employment, severance or other similar
contract, arrangement or policy (written or oral) and
each plan or arrangement (written or oral) providing
for insurance coverage or self-insured benefits,
workers' compensation, disability benefits,
supplemental unemployment benefits, vacation benefits,
retirement benefits or deferred compensation, profit
sharing, bonuses, membership interest options,
membership interest appreciation rights, membership
interest purchases or other forms of incentive
compensation or post-retirement insurance, compensation
or benefits which (1) is not a employee welfare benefit
plan or employee pension benefit plan, (2) is entered
into, maintained, contributed to or required to be
contributed to, as the case may be, by Xxxxx or a Xxxxx
Subsidiary or under which Xxxxx or a Xxxxx Subsidiary
has any liability, and (3) covers any employee or
former employee of Xxxxx or a Xxxxx Subsidiary.
(c) For purposes of this Section 4.9(c), the terms employee
welfare benefit plan, employee benefit plan, and employee pension
benefit plan shall have the meanings as defined in Section
4.9(b), and "employee plan" shall collectively mean all such
plans. Except as set forth on Schedule 4.9, the Members and Xxxxx
each represent to the extent such matters could reasonably be
expected to have a Material Adverse Effect with respect to Xxxxx,
any Xxxxx Subsidiary or Fjord:
(i) That Xxxxx and each Xxxxx Subsidiary who is or has
been a sponsor or participating sponsor in an employee plan
(the "Sponsors") is in compliance with the requirements
provided by any and all statutes, orders or governmental
rules or regulations currently in effect, including but not
limited to ERISA and the Code, and applicable to the
employee plan;
(ii) That each employee pension benefit plan and its
related trust, if any, intended to qualify under Code
Section 401(a) and Code Section 501(a) has been determined
by the Internal Revenue Service to qualify, and nothing has
since occurred to cause the loss of each such plan's
qualification;
(iii) That all reports and descriptions of each
employee plan (including IRS Form 5500 Annual Reports,
Summary Annual Reports and Summary Plan Descriptions) have
been timely filed and distributed as required by ERISA and
the Code;
(iv) That any notices required by ERISA or the Code or
any other state or federal law or any ruling or regulation
of any state or federal administrative agency with respect
to all employee plans have been appropriately given;
(v) That all employer and employee contributions for
all periods ending prior to the Closing Date (including
periods from the first day of the current plan year to the
Closing Date) will be made prior to the Closing Date by
Xxxxx and the Xxxxx Subsidiaries in accordance with past
practice and the recommended contribution in any applicable
actuarial report relating to each employee plan;
(vi) That all applicable insurance premiums have been
paid in full, subject only to normal retrospective
adjustments in the ordinary course, with regard to the
employee plans for policy years or other applicable policy
periods ending on or before the Closing Date;
(vii) That with respect to each employee plan:
a. no prohibited transactions (as defined in
ERISA Section 406 or Code Section 4975) have occurred,
b. no action, suit, grievance, arbitration or
other manner of litigation, or claim with respect to
the assets of the plan (other than routine claims for
benefits made in the ordinary course of plan
administration for which plan administrative review
procedures have not been exhausted) are pending,
threatened or imminent against or with respect to a
fiduciary of an employee plan (as defined in ERISA
Section 3(21)), including any action, suit, grievance,
arbitration or other manner of litigation, or claim
regarding conduct which allegedly interferes with the
attainment of rights under the plan, and
c. neither the Sponsors nor any fiduciary of an
employee plan has any knowledge of any facts that would
give rise to or could give rise to any action, suit,
grievance, arbitration or other manner of litigation,
or claim arising in connection with any such employee
plan;
(viii) That neither the Sponsors nor any of their
directors, officers, employees or any fiduciary of an
employee plan has any liability for failure to comply with
ERISA or the Code for any action or failure to act in
connection with the administration or investment of any
employee plan;
(ix) That no employee pension benefit plan, if subject
to Title IV of ERISA, has not been completely or partially
terminated;
(x) That no employee plan is subject to Title IV or
Part 3 of Title I of ERISA, or Section 412 of the Code; and
(xi) That no matter described in Schedule 4.9,
including but not limited to matters modifying the above
representations of this Section 4.9(c), could reasonably be
expected to have a Material Adverse Effect with respect to
Xxxxx, any Xxxxx Subsidiary, or Fjord.
4.10. No Finder. None of the Members, Xxxxx or any
Person acting on their behalf has paid or become obligated to pay
any fee or commission to any broker, finder or intermediary for
or on account of the transactions contemplated by this Agreement,
other than to Carnegie ASA, whose fees and expenses, to the
extent payable, shall be paid by the Members.
4.11. No Implied Representations. Except as expressly
set forth in this Agreement, neither Xxxxx nor any of the Members
makes any representation or warranty, express or implied, with
respect to the subject matter of this Agreement, including
without limitation the business and affairs of Xxxxx and the
Xxxxx Subsidiaries, or the Membership Interests.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
WITH RESPECT TO THE MEMBERS AND THE MEMBERSHIP INTERESTS
As an inducement to Fjord to enter into this Agreement
and to consummate the transactions contemplated hereby, the
Members (severally, and not jointly) represent and warrant to
Fjord and agree as follows (except that no Member shall be deemed
to make any representation or warranty under this Article V as to
any other Member or as to the Membership Interests owned by any
other Member):
5.1. Organization and Authority of Members. (a) Each
Member is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its
incorporation, as described in Schedule 5.1 hereof. Each Member
has full power and authority to own or lease and to operate and
use its properties and to carry on its business as now conducted.
(b) Each Member has full corporate power and authority to
execute, deliver and perform this Agreement and all of the Xxxxx
Ancillary Agreements to which it is a party. The execution,
delivery and performance of this Agreement and such Xxxxx
Ancillary Agreements by each Member have been duly authorized
and approved by its board of directors and do not require any
further authorization or consent of it or its stockholders. This
Agreement has been duly authorized, executed and delivered by
each Member and is the legal, valid and binding obligation of it
enforceable in accordance with its terms (except to the extent of
the Enforceability Exceptions), and each of the Xxxxx Ancillary
Agreements to which it is a party has been duly authorized by
each such Member and upon execution and delivery by it will be a
legal, valid and binding obligation of it enforceable in
accordance with its terms (except to the extent of the
Enforceability Exceptions).
(c) Except as set forth in Schedule 5.1, neither the execution
and delivery of this Agreement or any of the Xxxxx Ancillary
Agreements or the consummation of any of the transactions
contemplated hereby or thereby nor compliance with or fulfillment
of the terms, conditions and provisions hereof or thereof will:
(i) conflict with, result in a breach of the terms, conditions
or provisions of, or constitute a default, an event of default or
an event creating rights of acceleration, termination or
cancellation or a loss of rights under, or result in the creation
or imposition of any Encumbrance upon the Membership Interests or
any of the assets or properties of Xxxxx, under (1) the
certificate of incorporation or bylaws of any Member, (2) any
material note, instrument, agreement, mortgage, lease, license,
franchise, permit or other authorization, right, restriction or
obligation to which any Member is a party or by which it is
bound, (3) any Court Order to which any Member is a party or by
which it is bound, or (4) any Requirements of Laws affecting the
Membership Interests or any Member; or
(ii) require the approval, consent, authorization or act of, or
the making by the Members of any declaration, filing or
registration with, any Person.
5.2. Ownership of Membership Interests; Intercompany
Arrangements.
(a) Each Member on the date hereof owns, beneficially and
of record, all of the Membership Interests set forth opposite
such Member's name in Schedule 2.1, free and clear from all
Encumbrances of any kind whatsoever. Each Member will own at
Closing, beneficially and of record, all of the Membership
Interests set forth opposite such Member's name in Schedule 2.1,
free and clear from all Encumbrances of any kind whatsoever.
(b) Except as set forth in Schedule 5.2, (i) none of the
assets or properties used by Xxxxx or the Xxxxx Subsidiaries in
their respective businesses, or reflected in the books and
records of Xxxxx or the Xxxxx Subsidiaries, are owned by any
Member or any Affiliate of a Member, (ii) no contractual
arrangements exist (whether oral or written) between or among
Xxxxx or the Xxxxx Subsidiaries, on the one hand, and one or more
Members or Affiliates of Members, on the other, and (iii) no
services are being provided to Xxxxx or the Xxxxx Subsidiaries by
any Member or any Affiliate of a Member which are material to
Xxxxx, the Xxxxx Subsidiaries, or the operation of their
businesses.
5.3. Investment Representations. (a) Each Member is
acquiring the Shares for its own account, for investment purposes
and not with a view to the distribution thereof except to the
extent permitted by Section 8.4. Each Member will not, directly
or indirectly, by operation of law or otherwise, offer, transfer,
sell, assign, pledge, hypothecate or otherwise dispose of the
Shares (or solicit any offers to buy, purchase, or otherwise
acquire the Shares), except in compliance with this Agreement,
any applicable provisions of the Securities Act of 1933, as
amended (the "Securities Act"), and applicable Norwegian
securities laws and regulations.
(b) Each Member is an "accredited investor" (as that term
is defined in Rule 501 of Regulation D promulgated under the
Securities Act) and, by reason of its business and financial
experience, it has such knowledge, sophistication and experience
in business and financial matters as to be capable of evaluating
the merits and risks of the prospective investment in the Shares,
is able to bear the economic risk of such investment and is able
to afford a complete loss of such investment.
(c) The Members acknowledge that the Shares are not listed on
any United States stock exchange or quoted on the NASDAQ national
market system, nor has any American Depository Receipt program
been established in respect of the Shares. The Members
acknowledge that the Shares are not registered with the United
States Securities and Exchange Commission or any state securities
regulators in the United States, and the Shares may not be sold
in the United States or to residents of the United States without
such registration or without a valid exemption from such
registration under applicable United States' federal and state
securities laws.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF FJORD
As an inducement to Xxxxx and the Members to enter into
this Agreement and to consummate the transactions contemplated
hereby, Fjord hereby represents and warrants to the Members and
agrees as follows:
6.1. Organization. Fjord is a corporation duly organized
and validly existing and in good standing under the laws of
Norway and has full corporate power and authority to own or lease
and to operate and use its properties and assets and to carry on
its business as now conducted.
6.2. Capital Structure. As of the date hereof, the
authorized capital stock of Fjord consists solely of 70 228 992
shares of Common Stock. At the close of business on March 15,
2001, (i) 70 228 992 shares of Common Stock were issued and
outstanding, (ii) no shares of Common Stock were held in the
treasury of Fjord, and (iii) Fjord had the authority to issue up
to 7 763 225 additional shares of Common Stock pursuant to
outstanding options, warrants or other rights to purchase or
otherwise acquire shares of Common Stock, whether under Fjord's
benefit plans or other arrangements or pursuant to any plans or
arrangements assumed by Fjord in connection with any acquisition,
business combination or similar transaction, or otherwise
(collectively, the "Fjord Stock Plans"). As of the date of this
Agreement, except for (i) the resolution by the Board of Fjord to
issue up to 746 268 shares of Common Stock in connection with the
acquisition of Sogn Marine Farm AS, and (ii) the issuance of
options of Common Stock to employees of Fjord with a number of 1
150 000 options with a strike price of NOK 52 pursuant to the
Fjord Stock Plans, there are no issued and outstanding options,
warrants or other rights to purchase or otherwise acquire shares
of capital stock or other voting securities of Fjord. Subject to
obtaining the Fjord Shareholders' Approval, all of the shares of
Common Stock issuable upon Closing in accordance with Section 2.1
of this Agreement will be, when so issued, duly authorized,
validly issued, fully paid and nonassessable and free of
preemptive rights.
6.3. Authority. The board of directors of Fjord has
declared the transactions contemplated hereby advisable, fair to
and in the best interests of Fjord and its shareholders and has
approved and adopted this Agreement and the Fjord Ancillary
Agreements and the transactions contemplated hereby and thereby.
The board of directors of Fjord has approved the Share Issuance
and the amendments to Fjord's Articles of Association set forth
in Exhibit A hereto. Subject to obtaining the Fjord Shareholder
Approval, Fjord has the requisite corporate power and authority
to effect the Subscription and the Share Issuance and to enter
into this Agreement and the Fjord Ancillary Agreements and to
consummate the transactions contemplated hereby and thereby.
6.4. Consents and Approvals; No Violations. Except as set
forth in Schedule 6.4, neither the execution and delivery of this
Agreement or any of the Fjord Ancillary Agreements or the
consummation of any of the transactions contemplated hereby or
thereby nor compliance with or fulfillment of the terms,
conditions and provisions hereof or thereof will:
(i) conflict with, result in a breach of the
terms, conditions or provisions of, or constitute a
default, an event of default or an event creating
rights of acceleration, termination or cancellation or
a loss of rights under, or result in the creation or
imposition of any Encumbrance upon any of the assets or
properties of Fjord or any Fjord Subsidiary, under (1)
the Articles of Organization or Operating Agreement, or
Articles of Incorporation or Bylaws, or other
organizational documents, as applicable, of Fjord or of
any Fjord Subsidiary, (2) any material note,
instrument, agreement, mortgage, lease, license,
franchise, permit or other authorization, right,
restriction or obligation to which Fjord or any Fjord
Subsidiary is a party or any of the respective assets
or properties of Fjord or any Fjord Subsidiary is
subject or by which Fjord or any Fjord Subsidiary is
bound, (3) any Court Order to which Fjord or any Fjord
Subsidiary is a party or any of the respective assets
or properties of Fjord or any Fjord Subsidiary is
subject or by which Fjord or any Fjord Subsidiary is
bound, or (4) any Requirements of Laws affecting Fjord
or any Fjord Subsidiary or any of their respective
assets or properties in any material respect; or
(ii) require the approval, consent, authorization
or act of, or the making by any member or shareholder
of, Fjord or any Fjord Subsidiary of any declaration,
filing or registration with any Person.
6.5. No Finder. None of Fjord, or any Person acting on
its behalf has paid or become obligated to pay any fee or
commission to any broker, finder or intermediary for or on
account of the transactions contemplated by this Agreement,
other than to Xxxxxx Xxxx and Danske Securities, whose fees
and expenses, to the extent payable, shall be paid by Fjord.
ARTICLE VII
ACTIONS PRIOR TO THE CLOSING DATE
The respective parties hereto covenant and agree to
take the following actions between the date hereof and the
Closing Date:
7.1. Preserve Accuracy of Representations and Warranties.
Each of the parties hereto shall refrain from taking any action
which would render any representation or warranty contained in
Articles IV, V or VI of this Agreement inaccurate as of the
Closing Date. Each party shall promptly notify the other of any
action, suit or proceeding that shall be instituted or threatened
against such party to restrain, prohibit or otherwise challenge
the legality of any transaction contemplated by this Agreement.
The Members and Xxxxx shall promptly notify Fjord of (i) any
lawsuit, claim, proceeding or investigation that may be brought,
asserted or commenced or, to the knowledge of Xxxxx or any Xxxxx
Subsidiary, threatened against Xxxxx which could reasonably be
expected to have a Material Adverse Effect with respect to Xxxxx
or any Xxxxx Subsidiary and (ii) any other event or matter which
becomes known to any Member or Xxxxx and would cause any other
representation or warranty contained in Article IV or Article V
to be untrue in any material respect. Likewise, Fjord shall
promptly notify Xxxxx and the Members of any event or matter
which becomes known to Fjord and would cause any representation
or warranty contained in Article VI to be untrue in any material
respect.
7.2. Reasonable Best Efforts. Upon the terms and subject to
the conditions set forth in this Agreement, each of the parties
hereto agrees to use reasonable best efforts to take, or cause to
be taken, all actions, and to do, or cause to be done, and to
assist and cooperate with the other parties in doing, all things
necessary, proper or advisable to consummate and make effective,
in the most expeditious manner practicable, the transactions
contemplated by this Agreement, including, but not limited to:
(i) the obtaining of all necessary actions or non-actions,
waivers, consents and approvals from all Governmental Bodies and
the making of all necessary registrations and filings (including
filings with Governmental Bodies required by the HSR Act and all
other applicable Governmental Bodies of the United States and
Norway) and the taking of all reasonable steps as may be
necessary to obtain an approval or waiver from, or to avoid an
action or proceeding by, any Governmental Body, (ii) the
obtaining of all necessary consents, approvals or waivers from
third parties, and (iii) if commercially reasonable, the
defending of any lawsuits or other legal proceedings, whether
judicial or administrative, challenging this Agreement or the
consummation of the transactions contemplated hereby, including
seeking to have any stay or temporary restraining order entered
by any court or other Governmental Body vacated or reversed. No
party to this Agreement shall consent to any voluntary delay of
the consummation of the transactions contemplated by this
Agreement at the behest of any Governmental Body without the
consent of the other parties to this Agreement, which consent
shall not be unreasonably withheld. Without limitation, Xxxxx
and the Members will provide, in a timely fashion, all
information reasonably requested by Fjord for the preparation of
the Prospectus.
7.3. Operations Prior to the Closing Date. (a) Except as
set forth in Schedule 7.3(A), or to the extent Fjord may consent
in writing (such consent not to be unreasonably withheld), the
Members shall cause Xxxxx and the Xxxxx Subsidiaries to operate
and carry on their business only in the ordinary course and
substantially as presently operated. Consistent with the
foregoing, the Members shall cause Xxxxx and the Xxxxx
Subsidiaries to keep and maintain their assets and properties in
good operating condition and repair and shall use commercially
reasonable best efforts consistent with good business practice to
maintain the business organization of Xxxxx and the Xxxxx
Subsidiaries intact and to preserve the goodwill of the
suppliers, contractors, licensors, employees, customers,
distributors and others having business relations with Xxxxx and
the Xxxxx Subsidiaries.
(b) The Members, Xxxxx and the Xxxxx Subsidiaries shall
inform Fjord in writing at least 5 business days before any
capital expenditures are executed that exceed $100 000 (U.S.).
(c) The Members shall not allow Xxxxx nor any of the Xxxxx
Subsidiaries to: (i) split, combine or reclassify its membership
interests or other equity interests; (ii) except as provided in
Section 10.1(b) hereof and Section 9.2(b) of the Xxxxx Operating
Agreement with respect to income taxes arising out of operations
of Xxxxx and the Xxxxx Subsidiaries prior to the Closing Date,
declare, pay, or set aside for payment any dividend or other
distribution in respect of its membership interests or other
equity interests; (iii) directly or indirectly redeem, purchase,
or otherwise acquire any of its membership interests or other
equity interests; or (iv) issue, sell, pledge, dispose of,
encumber or deliver (whether through the issuance or granting of
any options, warrants, commitments, subscriptions, rights to
purchase or otherwise) any capital stock or other equity
interests or any securities convertible into, or exercisable or
exchangeable for, capital stock or other equity interests;
provided however, that in the event Fjord declares any dividend
that the Members will not be entitled to receive, and the Closing
Date has not yet occurred, the Members may declare a dividend
from Xxxxx equal to the dividend they would otherwise have
received on the Shares had the Shares then been issued to and
held by the Members.
(d) Unless Fjord shall have given reasonably
contemporaneous notice to Xxxxx and the Members, Fjord and the
Fjord Subsidiaries shall operate and carry on their business only
in the ordinary course and substantially as presently operated.
Consistent with the foregoing, Fjord and the Fjord Subsidiaries
shall keep and maintain their assets and properties in good
operating condition and repair and shall use commercially
reasonable best efforts consistent with good business practice to
maintain the business organization of Fjord and the Fjord
Subsidiaries intact and to preserve the goodwill of the
suppliers, contractors, licensors, employees, customers,
distributors and others having business relations with Fjord and
the Fjord Subsidiaries. Fjord shall provide notice to Xxxxx and
the Members before either Fjord or any of the Fjord Subsidiaries
shall (i) split, combine or reclassify its capital stock or other
equity interests; (ii) declare, pay, or set aside for payment
any dividend or other distribution in respect of its capital
stock or other equity interests; (iii) directly or indirectly
redeem, purchase, or otherwise acquire any of its capital stock
or other equity interests; or (iv) issue, sell, pledge, dispose
of, encumber or deliver (whether through the issuance or granting
of any options, warrants, commitments, subscriptions, rights to
purchase or otherwise) any capital stock or other equity
interests or any securities convertible into, or exercisable or
exchangeable for, capital stock or other equity interests; and if
any of the actions in (i) - (iv) are taken, without the consent
of the Members, Xxxxx and the Members may terminate this
Agreement.
7.4. Notification of Certain Matters. During the period
prior to the Closing Date, Fjord, the Members and Xxxxx will
promptly advise each other in writing of (i) any material adverse
change in Fjord, the Fjord Subsidiaries, Xxxxx or any Xxxxx
Subsidiary (as the case may be) or the condition of their assets,
properties or business, (ii) any notice or other communication
from any third Person alleging that the consent of such third
Person is or may be required in connection with the transactions
contemplated by this Agreement, and (iii) any material default
under any material agreement of Fjord, the Fjord Subsidiaries,
Xxxxx or Xxxxx Subsidiaries (as the case may be), or event which,
with notice or lapse of time or both, would become such a default
on or prior to the Closing Date and of which Fjord, the Members
or Xxxxx has knowledge.
7.5. Filings with the Oslo Stock Exchange; Shareholders
Meeting. (a) Fjord, with the assistance of Xxxxx and the
Members, shall prepare and file the Prospectus with the Oslo
Stock Exchange as promptly as reasonably practicable and shall
use their reasonable best efforts to have the Prospectus declared
effective as promptly as reasonably practicable after such
filing. Fjord, Xxxxx and the Members shall make all necessary
filings with respect to the Subscription and the transactions
contemplated thereby. If at any time prior to the Closing Date
any information relating to Fjord, Xxxxx or the Members, or any
of their respective Affiliates, officers or directors, should be
discovered by Fjord, Xxxxx or the Members which should be set
forth in an amendment or supplement to the Prospectus so that it
would not include any misstatement of a material fact or omit to
state any material fact necessary to make the statement therein,
in light of the circumstances under which they were made, not
misleading, the party which discovers such information shall
promptly notify the other parties hereto and an appropriate
amendment or supplement describing such information shall be
promptly filed with the Oslo Stock Exchange and, to the extent
required by law, disseminated to the shareholders of Fjord.
Fjord shall deliver to the Members a copy of the Prospectus as
soon as permitted by Norway law, and in no event later than the
Closing Date. Prior to the effectiveness of the Prospectus, the
members of the Management Committee of Xxxxx shall provide to
Fjord a statement, substantially in the form of Exhibit B annexed
hereto, to be included in the Prospectus.
(b) Fjord will, as soon as practicable following the date
of this Agreement but in no event later than April 30, 2001, duly
call, give notice of, convene and hold a meeting of its
shareholders (together with any adjournments thereof the
"Shareholders Meeting") for the purpose of considering the
approval of the Share Issuance (the "Fjord Shareholder
Approval"). The board of directors of Fjord will submit a
proposal to Shareholders Meeting in respect of the Share Issuance
which shall comply with Norwegian legal requirements and include
the following main items:
(i) Fjord's share capital to be increased by NOK 14 000 000
through the issuance of the Shares, each of par value NOK 1.
(ii) The Share Issuance shall be directed towards the Members in
accordance with the allocation set out in Schedule 2.1, and the
existing shareholders in Fjord shall waive their pre-emption
rights in respect of the issuance.
(iii) The Shares shall be subscribed by way of contribution
in kind through transferring the Membership Interests to Fjord.
(iv) The Shares shall be subscribed on a day to be agreed, on or
after the Shareholders Meeting.
(v) Subscription and payment shall take place on the same day
(being the Closing Date).
(vi) The Shares shall be fully tradable on the Oslo Stock
Exchange on the day the Shares are transferred to the Members and
shall be vested with full shareholders rights as from the Closing
Date, from which date the Shares shall be entitled to dividends
(to the extent payable), and otherwise enjoy the same rights and
privileges in all respects as do the already existing and issued
shares in Fjord.
In addition, the board of directors of Fjord will submit a
proposal to the Shareholders Meeting to elect a new board of
directors to consist of the persons set out in Section 2.3(a),
provided that the effectiveness of such election shall be subject
to the consummation of the Subscription and the Share Issuance.
(c) Fjord will, through its board of directors, recommend
to its shareholders approval of this Agreement and shall use all
reasonable efforts to solicit such approval by its shareholders,
except that Fjord shall not be required to so recommend and
solicit if such acts would be inconsistent with the fiduciary
duties of Fjord's board of directors, as determined in good faith
by a majority of the members thereof (after consultation with
outside legal counsel). Fjord's board of directors shall not
withdraw or modify, or propose to withdraw or modify its
recommendation that the Fjord's shareholders approve this
Agreement unless failure to do so would be inconsistent with the
fiduciary duties of Fjord's board of directors, as determined in
good faith by a majority of the members thereof (after
consultation with outside legal counsel). Fjord agrees to
deliver to Fjord's shareholders all notices required to be
delivered to them in connection with seeking the Fjord
Shareholder Approval.
7.6. [RESERVED].
7.7. Notice of Developments. Xxxxx and Fjord will each
give the other prompt notice of any material developments
affecting its business or operations, or its ability to perform
under this Agreement, including stock market initiatives, changes
in key personnel, and new material contracts or sales prospects.
ARTICLE VIII
ADDITIONAL AGREEMENTS
8.1. Covenant Not to Compete or Solicit Business. (a) As
an inducement to and in furtherance of the exchange of its
Membership Interests in the Subscription hereunder and more
effectively to protect the value and goodwill of the assets and
business of Xxxxx, each of the Members covenants and agrees that,
for a period ending on the second anniversary of the Closing
Date, neither they nor any of their Affiliates will (apart from
their ownership interests in Fjord):
(i) directly or indirectly (whether as principal,
agent, independent contractor, partner or otherwise) own,
manage, operate, control, participate in, perform services
for, or otherwise carry on, fish aquaculture or the smoking
or curing of seafood, and the marketing and distribution
thereof, anywhere in the World (it being understood by the
parties hereto that the business prohibited activities are
not limited to any particular region because such business
has been conducted by Xxxxx and the Xxxxx Subsidiaries
throughout the World and the prohibited activities may be
engaged in effectively from any location in the World); or
(ii) induce or attempt to persuade any employee, agent
or customer of Xxxxx or a Xxxxx Subsidiary to terminate such
employment, agency or business relationship in order to
enter into any such relationship on behalf of any other
business organization in competition with the business
conducted by Xxxxx and the Xxxxx Subsidiaries on the date
hereof;
(b) In addition, each Member covenants and agrees that
neither it nor any of its Affiliates will divulge or make use of
any Trade Secrets or other confidential information of Xxxxx or
Xxxxx Subsidiaries other than to disclose such secrets and
information to Fjord or its Affiliates.
(c) In the event any Member or any Affiliate of any Member
violates any of its obligations under this Section 8.1, Fjord or
Xxxxx may proceed against it in law or in equity for such damages
or other relief as a court may deem appropriate. Each Member
acknowledges that a violation of this Section 8.1 may cause Fjord
or Xxxxx irreparable harm which may not be adequately compensated
for by money damages. Each Member therefore agrees that in the
event of any actual or threatened violation of this Section 8.1,
Fjord or Xxxxx shall be entitled, in addition to other remedies
that it may have, to a temporary restraining order and to
preliminary and final injunctive relief against such Member or
such Affiliate of such Member to prevent any violations of this
Section 8.1, without the necessity of posting a bond. The
prevailing party in any action commenced under this Section 8.1
shall also be entitled to receive reasonable attorneys' fees and
court costs.
(d) It is the intent and understanding of each party hereto
that if, in any action before any court or agency legally
empowered to enforce this Section 8.1, any term, restriction,
covenant or promise in this Section 8.1 is found to be
unreasonable and for that reason unenforceable, then such term,
restriction, covenant or promise shall be deemed modified to the
extent necessary to make it enforceable by such court or agency.
8.2. Confidential Nature of Information. Commencing on the
date hereof and until the tenth anniversary of Closing, each
party agrees that it will treat in confidence all documents,
materials and other information which it shall have obtained
regarding the other party during the course of the negotiations
leading to the consummation of the transactions contemplated
hereby (whether obtained before or after the date of this
Agreement), the investigation provided for herein and the
preparation of this Agreement and other related documents, and,
in the event the transactions contemplated hereby shall not be
consummated, each party will return to the other party all copies
of nonpublic documents and materials which have been furnished in
connection therewith. Such documents, materials and information
shall not be communicated to any third Person (other than, in the
case of Fjord, to its counsel, accountants, financial advisors or
lenders, and in the case of the Members, to their respective
counsel, accountants or financial advisors). No Person shall use
any confidential information in any manner whatsoever except
solely for the purpose of evaluating the proposed transaction or
the negotiation or enforcement of this Agreement or any agreement
contemplated hereby; provided, that after the Closing Fjord may
use or disclose any confidential information related to Xxxxx or
its assets or business. The obligation of each party to treat
such documents, materials and other information in confidence
shall not apply to any information which (i) is or becomes
lawfully available to such party from a source other than the
furnishing party, (ii) is or becomes available to the public
other than as a result of disclosure by such party or its agents,
(iii) is required to be disclosed under applicable law or
judicial process, but only to the extent it must be disclosed and
only after giving notice to the other party as soon in advance as
practicable, in order to enable that party to seek appropriate
alternative remedies and/or limitations, or (iv) such party
reasonably deems necessary to disclose to obtain any of the
consents or approvals contemplated hereby.
8.3. No Public Announcement. The parties agree that as soon
as practicable following execution of this Agreement they will
issue a press release in form and substance reasonably agreed to
by them. Except for the foregoing, neither Fjord nor the Members
shall (nor shall the Members permit Xxxxx to), without the
approval of the other parties hereto, make any press release or
other public announcement concerning the transactions
contemplated by this Agreement, except as and to the extent that
any such party shall be so obligated by law or the rules of the
Oslo Stock Exchange, in which case the other party shall be
advised to the extent practicable and the parties shall use their
best efforts to cause a mutually agreeable release or
announcement to be issued.
8.4. Sale of Shares by Members. CGC and Seaboard shall
enter into an Agreement with the financial advisors of Fjord,
substantially in the form of Exhibit C attached hereto, not to
sell, transfer or convey more than 35% of the Shares of Fjord
subscribed for hereunder for 12 months after the Closing Date.
8.5. Required Consents Not Obtained by Closing. In the
event that any required consents or approvals are not obtained by
the Closing, and the parties nevertheless elect to consummate the
Subscription, the Members and Fjord will cooperate and continue
to use reasonable best efforts to obtain such consents or
approvals after the Closing Date.
8.6. No Approaches to Customers, Etc. Prior to the Closing
Date, none of Fjord, the Fjord Subsidiaries, Xxxxx, the Xxxxx
Subsidiaries, the Members, or the representatives or advisors of
any of them, shall approach the customers, suppliers or joint
venture partners of the other party, except as authorized by
Fjord or Xxxxx, as the case may be.
8.7. Non-Solicitation. For a period of two (2) years from
the date of this Agreement, each of (i) Fjord and the Fjord
Subsidiaries, on the one hand, and (ii) the Members, Xxxxx and
the Xxxxx subsidiaries, on the other hand, agree not to knowingly
or directly solicit any person employed by the other or the
other's Affiliates; provided, however, that any party may hire
any employee who responds to a general solicitation.
8.8. No Right to Use the Name "Xxxxx". Fjord agrees that
from and after the Closing Date neither Fjord nor any of the
Fjord Subsidiaries (which, after the Closing, includes Xxxxx and
the Xxxxx Subsidiaries) shall have the right to register or use
the name "Xxxxx" (either by itself or combined with another term)
or any name or term confusingly similar thereto, without the
express written permission of CGC.
8.9. [RESERVED].
8.10. Repayment of Loans; Release of Guaranties. Within
60 days following the Closing Date, Fjord shall (i) repay
subordinated loans made by CGC and Seaboard to Xxxxx or the Xxxxx
Subsidiaries as reflected in the Balance Sheet, and (ii) cause
guaranties by CGC and Seaboard to (a) KeyBank, N.A., (b) the
United States Small Business Administration, and (c) the United
States Dept. of Commerce, National Marine Fisheries Service
relating to loans made to Xxxxx and/or the Xxxxx Subsidiaries to
be released. In the event Fjord fails to satisfy the obligations
set forth in the preceding sentence, Fjord agrees to indemnify
and hold CGC and Seaboard harmless from any claims relating to
such guaranties, and Fjord shall secure such indemnification
obligation and/or the unpaid principal of said subordinated
loans, as the case may be, by a letter of credit from a
commercial bank reasonably satisfactory to CGC and Seaboard or by
depositing funds in an escrow account, in each case, in an amount
equal to CGC's and Seaboard's maximum exposure under said
guaranties and/or the unpaid principal amount of the subordinated
loans, as the case may be, or through such other arrangement as
is agreed to by Fjord and the Members.
ARTICLE IX
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARTIES
9.1. Conditions to Each Party's Obligations. The respective
obligations of each party to effect the Subscription shall be
subject to the fulfillment, on or prior to the Closing Date, of
the following conditions:
(a) Shareholder Approval. The Fjord Shareholder Approval
shall have been duly obtained in accordance with applicable law.
(b) Listing of Stock. All necessary actions shall have
been taken to permit, promptly after the issuance of the Shares,
the listing of the Shares issuable in the Subscription on the
Oslo Stock Exchange.
(c) Certain Approvals. The waiting period (and any
extension thereof) applicable to the consummation of the
Subscription under the HSR Act shall have expired or been
terminated.
(d) No Order. No court or other Governmental Body having
jurisdiction over the Members, Fjord or Xxxxx, or any of their
respective subsidiaries, shall have enacted, issued, promulgated,
enforced or entered any law, rule, regulation, executive order,
decree, injunction or other order (whether temporary, preliminary
or permanent) which is then in effect and has the effect of
making the Subscription or any of the transactions contemplated
hereby illegal.
(e) No Litigation or Injunction. There shall not be
instituted or pending any suit, action or proceeding by any
Governmental Body relating to this Agreement, any of the Xxxxx
Ancillary Agreements or Fjord Ancillary Agreements, or any of the
transactions contemplated herein or therein. No action or
proceeding shall have been commenced seeking any temporary
restraining order, preliminary or permanent injunction or other
order from any court of competent jurisdiction or seeking any
other legal restraint or prohibition preventing the consummation
of the Subscription or any of the transactions or agreements
contemplated by this Agreement or any of the Xxxxx Ancillary
Agreements or Fjord Ancillary Agreements, other than any of the
foregoing which shall have been dismissed with prejudice.
(f) Prospectus. The Prospectus shall have become effective
in accordance with the requirements of the Oslo Stock Exchange.
No order suspending the effectiveness of the Prospectus shall
have been issued by the Oslo Stock Exchange and no proceedings
for that purpose shall have been initiated or, to the knowledge
of the parties, threatened by the Oslo Stock Exchange.
9.2 Conditions to Obligations of the Members and Xxxxx.
The obligations of the Members and Xxxxx to effect the
Subscription shall be subject to the fulfillment, on or prior to
the Closing Date, of the following additional conditions:
(a) Performance of Obligations; Representations and
Warranties. Fjord shall have performed in all material respects
each of its agreements contained in this Agreement required to be
performed on or prior to the Closing Date, each of the
representations and warranties of Fjord contained in this
Agreement that is qualified by materiality shall be true and
correct on and as of the Closing Date as if made on and as of
such date (other than representations and warranties which
address matters only as of a certain date which shall be true and
correct as of such certain date) and each of the representations
and warranties that is not so qualified shall be true and correct
in all material respects on and as of the Closing Date as if made
on and as of such date (other than representations and warranties
which address matters only as of a certain date which shall be
true and correct in all material respects as of such certain
date), in each case except as contemplated or permitted by this
Agreement, and the Members and Xxxxx shall have received a
certificate to such effect signed on behalf of Fjord by its Chief
Executive Officer and its Chief Financial Officer.
(b) Material Adverse Effect. Between the date of this
Agreement through the Closing Date, Fjord shall not have suffered
any Material Adverse Effect. At the Closing, Xxxxx shall have
received a certificate to such effect signed on behalf of Fjord
by its Chief Executive Officer and its Chief Financial Officer.
(c) Consents. All authorizations, consents, orders,
declarations or approvals of, or filings with, or terminations or
expirations of waiting periods imposed by, any Governmental Body,
which the failure to obtain, make or occur would have the effect
of making the Subscription or any of the transactions
contemplated hereby illegal or would have, individually or in the
aggregate, a Material Adverse Effect on Xxxxx or the Members
(assuming the Subscription had taken place), shall have been
obtained, shall have been made or shall have occurred, on terms
reasonably acceptable to Xxxxx and the Members. Further, Fjord
shall have obtained the consent or approval of each Person that
is not a Governmental Body whose consent or approval shall be
required in connection with the transactions contemplated hereby
under any material agreement or instrument by which Fjord or any
Fjord Subsidiary is bound, if the failure to so obtain such
consent or approval would be reasonably likely to have a Material
Adverse Effect.
(d) Board Representation. The Seaboard and CGC designees
referred to in Section 2.3 shall have been elected to the Board
of Directors of Fjord effective as of the Closing Date or such
later date as agreed to by Seaboard and CGC, and Fjord shall have
furnished evidence of director and officer liability insurance
covering such Seaboard and CGC designees.
9.3 Conditions to Obligations of Fjord. The obligations of
Fjord to effect the Subscription shall be subject to the
fulfillment, on or prior to the Closing Date, of the following
additional conditions:
(a) Performance of Obligations; Representations and
Warranties. The Members and Xxxxx shall have performed in all
material respects each of their agreements contained in this
Agreement required to be performed on or prior to the Closing
Date, each of the representations and warranties of the Members
and Xxxxx contained in this Agreement that is qualified by
materiality shall be true and correct on and as of the Closing
Date as if made on and as of such date (other than
representations and warranties which address matters only as of a
certain date which shall be true and correct as of such certain
date) and each of the representations and warranties that is not
so qualified shall be true and correct in all material respects
on and as of the Closing Date as if made on and as of such date
(other than representations and warranties which address matters
only as of a certain date which shall be true and correct in all
material respects as of such certain date), in each case except
as contemplated or permitted by this Agreement, and Fjord shall
have received a certificate to such effect signed by the Members
and on behalf of Xxxxx by its Chief Executive Officer and its
Chief Financial Officer.
(b) Material Adverse Effect. Between January 31, 2001
through the Closing Date, Xxxxx shall not have suffered any
Material Adverse Effect. At the Closing, Fjord shall have
received a certificate to such effect signed by the Members and
on behalf of Xxxxx by its Chief Executive Officer and its Chief
Financial Officer.
(c) Consents. All authorizations, consents, orders,
declarations or approvals of, or filings with, or terminations or
expirations of waiting periods imposed by, any Governmental Body,
which the failure to obtain, make or occur would have the effect
of making the Subscription or any of the transactions
contemplated hereby illegal or would have, individually or in the
aggregate, an adverse effect on Fjord (assuming the Subscription
had taken place), shall have been obtained, shall have been made
or shall have occurred, on terms acceptable to Fjord. Further,
Xxxxx shall have obtained the consent or approval of each Person
that is not a Governmental Body whose consent or approval shall
be required in connection with the transactions contemplated
hereby under any material agreement or instrument by which Xxxxx
or any Xxxxx Subsidiary is bound, if the failure to so obtain
such consent or approval would be reasonably likely to have a
Material Adverse Effect. Without limiting the foregoing, Fjord
shall have received from the Members executed counterparts of the
consents listed on Schedule 4.4, which consents shall be in form
and substance reasonably satisfactory to Fjord, as well as all
approvals from any Governmental Body identified on Schedule 4.4.
ARTICLE X
TAX MATTERS
10.1. Liability for Taxes. (a) The Members shall on a
pro rata basis be liable for and pay, and pursuant to Article XI
agree to indemnify and hold harmless each of Fjord and its
subsidiaries (and Xxxxx and each Xxxxx Subsidiary) against: (i)
all Taxes imposed on any Member by reason of ownership of
Membership Interests in Xxxxx for all taxable years or periods or
portions thereof; (ii) all Taxes imposed on Xxxxx or any Xxxxx
Subsidiary, or for which Xxxxx or any Xxxxx Subsidiary may
otherwise be liable, for any taxable year or period that ends on
or before the Closing Date and, with respect to any Straddle
Period, the portion of such Straddle Period ending on and
including the Closing Date, in each case to the extent exceeding
the liability for Taxes appearing on the Balance Sheet; and (iii)
any Transaction Tax; provided, however, that the limitations
contained in Section 11.1(a) shall apply to the Members'
obligations under this Section 10.1(a).
(b) For purposes of Section 4.7 and Section 10.1, whenever
it is necessary to determine the liability for Taxes of Xxxxx or
any Xxxxx Subsidiary for a Straddle Period, the determination of
the Taxes of Xxxxx or such Xxxxx Subsidiary for the portion of
the Straddle Period ending on and including, and the portion of
the Straddle Period beginning after, the Closing Date shall be
determined by assuming that the Straddle Period consisted of two
taxable years or periods, one which ended at the close of the
Closing Date and the other which began at the beginning of the
day following the Closing Date and items of income, gain,
deduction, loss or credit of Xxxxx or such Xxxxx Subsidiary for
the Straddle Period shall be allocated between such two taxable
years or periods on a "closing of the books basis" by assuming
that the books of Xxxxx or Xxxxx Subsidiary were closed at the
close of the Closing Date; provided, however, that exemptions,
allowances or deductions that are calculated on an annual basis,
such as the deduction for depreciation, shall be apportioned
between such two taxable years or periods on a daily basis. The
parties agree to elect to close the books of Xxxxx and the Xxxxx
Subsidiaries (that are limited liability companies) under the
Code on the Closing Date. The parties acknowledge and agree that
the liability for Taxes of Xxxxx or any Xxxxx Subsidiary for any
pre-Closing Date Straddle Period may not be determined and may
not have been entered on the books of the entity as of the
Closing Date, and that such entries will be made as soon as
practicable after the Closing, consistent with past accounting
practices of Xxxxx and the Xxxxx Subsidiaries.
(c) Tax Liabilities and Distributions. The parties
agree that the Members shall be entitled to and Fjord shall cause
Xxxxx to make distributions of cash to the Members within 120
days of the Closing, pursuant to Section 9(b) of the Xxxxx
Operating Agreement, with respect to income taxes arising out of
operations of Xxxxx and the Xxxxx Subsidiaries for all periods
beginning on January 1, 2001 and ending on or before the Closing
Date.
10.2. Tax Returns. (a) The Members shall timely file or
shall cause to be timely filed when due (taking into account all
extensions properly obtained) all Tax Returns that are required
to be filed by or with respect to Xxxxx and each Xxxxx Subsidiary
that are due on or before the Closing Date, and the Members shall
remit or cause to be remitted any Taxes due in respect of such
Tax Returns. Fjord shall give the Members a reasonable
opportunity including adequate time to review Conti's federal
income Tax Return for the periods ending on the Closing Date and
December 31, 2001, prior to the filing of such Tax Returns.
(b) The Members or Fjord shall reimburse the other party
the Taxes for which the Members or Fjord are liable pursuant to
Section 10.1, but which are payable with any Tax Return to be
filed by the other party pursuant to this Section 10.2, upon the
written request of the party entitled to reimbursement setting
forth in detail the computation of the amount owed by the Members
or Fjord, as the case may be, but in no event earlier than 10
days prior to the due date for paying such Taxes. All Tax
Returns which the Members are required to file or cause to be
filed in accordance with this Section 10.2 shall be prepared and
filed in a manner consistent with past practice and, on such Tax
Returns, no position shall be taken, elections made or method
adopted that is inconsistent with positions taken, elections made
or methods used in preparing and filing similar Tax Returns in
prior periods (including positions, elections or methods which
would have the effect of accelerating deductions to periods for
which the Members are liable under Section 10.1(a)).
10.3. Contest Provisions. (a) Within ten days of
receipt, Fjord shall notify the Members in writing of the receipt
by Fjord, any of its Affiliates or, after the Closing Date, Xxxxx
or any Xxxxx Subsidiary of notice of any pending or threatened
federal, state, local or foreign Tax audits or assessments which
may affect the Tax liabilities of Xxxxx or any Xxxxx Subsidiary
for which the Members would be required to indemnify Fjord
pursuant to Section 10.1 and Article XI.
(b) The Members shall have the sole right to represent
Conti's and each Xxxxx Subsidiary's interests in any Tax audit or
administrative or court proceeding relating to taxable periods
ending on or before the Closing Date, and to employ counsel of
Members' choice at Members' expense; provided, however, that the
Members shall have no right to represent Conti's or any Xxxxx
Subsidiary's interests in any Tax audit or administrative or
court proceeding unless the Members shall have first notified
Fjord in writing of the Members' intention to do so and shall
have agreed with Fjord in writing that, as between Fjord and the
Members, the Members shall be liable for any Taxes that result
from such audit or proceeding related only to taxable periods
ending on or before the Closing Date; provided, further that
Fjord and its representatives shall be permitted, at Fjord's
expense, to be present at, and participate in, any such audit or
proceeding. Nothing herein shall be construed to impose on Fjord
or any Affiliate thereof any obligation to defend Xxxxx or any
Xxxxx Subsidiary in any Tax audit or administrative or court
proceeding. Fjord shall have the sole right to defend Xxxxx or
any Xxxxx Subsidiary with respect to any issue arising with
respect to any Tax audit or administrative or court proceeding
relating to taxable periods ending on or before the Closing Date
only to the extent the Members shall have so agreed in writing.
(c) Notwithstanding the foregoing, neither the Members nor
any Affiliate of the Members shall be entitled to settle, either
administratively or after the commencement of litigation, any
claim for Taxes which could adversely affect the liability for
Taxes of the Fjord, Xxxxx, any Xxxxx Subsidiary or any Affiliate
thereof for any period after the Closing Date to any extent
(including the imposition of income Tax deficiencies, the
reduction of asset basis or cost adjustments, the lengthening of
any amortization or depreciation periods, the denial of
amortization or depreciation deductions, or the reduction of loss
or credit carry-forwards) without the prior written consent of
Fjord, which consent may not unreasonably be withheld.
10.4. Assistance and Cooperation. (a) After the Closing
Date, each Member and Fjord agree to (and shall cause their
respective Affiliates to):
(i) timely sign and deliver such certificates or forms
as may be necessary or appropriate to establish an exemption from
(or otherwise reduce) Taxes, and as may be necessary to file Tax
Returns;
(ii) assist the other party in preparing any Tax
Returns which such other party is responsible for preparing and
filing in accordance with Section 10.2;
(iii) cooperate fully in preparing for any audits
of, or disputes with taxing authorities regarding, any Tax
Returns of Xxxxx and each Xxxxx Subsidiary;
(iv) make available to the other and to any taxing
authority as reasonably requested all information, records, and
documents relating to Taxes of Xxxxx and each Xxxxx Subsidiary;
(v) furnish the other with copies of all
correspondence received from any taxing authority in connection
with any Tax audit or information request with respect to any
such taxable period; and
(vi) cooperate to satisfy the requirements contained in
this Article X.
(b) Fjord recognizes that the Members will need to monitor
in advance the possible future application of the provisions of
U.S. federal income tax law which apply to U.S. shareholders of
"controlled foreign corporations." To this end, Fjord shall
cooperate in providing to the Members or their representatives
such information as they may reasonably request, but shall not be
obligated to disclose confidential or proprietary information.
(c) Immediately prior to Closing, Xxxxx and the Xxxxx
Subsidiaries are to furnish a tax clearance letter from the Maine
Revenue Service in customary form and any other state tax agency
to which they pay taxes and a clearance letter from the Maine
Department of Labor in customary form.
10.5. Certain Tax Representations. Xxxxx and the
Members represent and warrant to Fjord that on the date hereof
Xxxxx is properly classified as a partnership for United States
federal income tax purposes and ASM and Ducktrap are disregarded
for United States federal income tax purposes.
10.6. Survival of Obligations. Notwithstanding anything
to the contrary in this Agreement, but subject to the limitations
contained in Section 11.1(a), the obligations, covenants,
representations and warranties of the parties set forth in this
Article X shall be unconditional and absolute and shall remain in
effect only until the expiration of the applicable statute of
limitations for each such claim.
ARTICLE XI
INDEMNIFICATION
11.1. Indemnification by Members. (a) The Members, on
a pro rata basis in accordance with their holdings of Membership
Interests agree to indemnify and hold harmless Fjord from and
against any and all Losses and Expenses incurred by Fjord in
connection with or arising from any breach of any warranty or
covenant or the inaccuracy of any representation of the Members
or Xxxxx under the following provisions of this Agreement:
Sections 4.7 and 4.8; provided, that the Members shall not be
required to indemnify and hold harmless under this subsection (a)
(i) to the extent that Fjord and the Fjord Subsidiaries (and
Xxxxx and each Xxxxx Subsidiary) receives indemnification for any
unpaid taxes under any agreements with third parties to which
Xxxxx or any Xxxxx Subsidiary is a party, and which are acquired
by Fjord through the acquisition of the Xxxxx Membership
Interests, and (ii) with respect to Losses and Expenses incurred
by Fjord or Fjord Subsidiaries until the aggregate amount of such
Losses and Expenses exceeds $250 000, and then only for the
amount by which such Losses and Expenses exceed $250 000, and
provided further, that the Members shall not have any obligation
to indemnify Fjord in an amount in excess of $5 000 000; and,
provided further, that the Members shall not have any obligation
to indemnify Fjord for any Losses and Expenses arising out of any
matters specifically identified on Schedules 4.7 and 4.8,
attached hereto.
(b) The representations and warranties set forth in Section
4.8 (and the indemnification provided for in Section 11.1 with
respect to Section 4.8), shall terminate 4.5 years after the
execution of this Agreement, and the representations and
warranties set forth in Section 4.7 (and the indemnification
provided for in Sections 10.1 and 11.1 with respect to Section
4.7) shall terminate upon the expiration of the applicable
statute of limitations for each such claim.
(c) At its option, any Member that is required to indemnify
Fjord may settle its liability hereunder by means of cash or
shares of Fjord capital stock (based upon the listed market value
of the Fjord shares on the date they are tendered to Fjord).
11.2. Notice of Claims. (a) Fjord or Fjord Subsidiaries
(the "Indemnified Party") seeking indemnification hereunder shall
give to the party obligated to provide indemnification to such
Indemnified Party (the "Indemnitor") a notice (a "Claim Notice")
describing in reasonable detail the facts giving rise to any
claim for indemnification hereunder and shall include in such
Claim Notice (if then known) the amount or the method of
computation of the amount of such claim, and a reference to the
provision of this Agreement or any other agreement, document or
instrument executed hereunder or in connection herewith upon
which such claim is based; provided, however, that (i) a Claim
Notice shall be given as soon as reasonably practicable after the
matter to which it relates is identified by the Indemnified
Party; and (ii) failure to give such notice shall not relieve the
Indemnitor of its obligations hereunder except to the extent it
shall have been prejudiced by such failure.
(b) After the giving of any Claim Notice pursuant hereto,
the amount of indemnification to which an Indemnified Party shall
be entitled under this Article XI shall be determined: (i) by the
written agreement between the Indemnified Party and the
Indemnitor; or (ii) by any other means to which the Indemnified
Party and the Indemnitor shall agree (including the arbitration
provision contained in Section 13.9 hereof). The Indemnified
Party shall have the burden of proof in establishing the amount
of Losses and Expenses suffered by it.
11.3. Third Person Claims. (a) The Indemnified Party
shall have the right to conduct and control, through counsel of
its choosing that is acceptable to: (A) Xxx Royal so long as he
is employed by Fjord, and thereafter another person mutually
agreed upon by the Members and Fjord, and (B) the Indemnitor and
the Indemnified Parties (whose consent shall not be unreasonably
withheld), the defense, compromise or settlement of any claim,
action or suit involving a third Person as to which
indemnification will be sought by any Indemnified Party from any
Indemnitor hereunder, and in any such case the Indemnitor shall
cooperate in connection therewith and shall furnish such records,
information and testimony and attend such conferences, discovery
proceedings, hearings, trials and appeals as may be reasonably
requested by the Indemnified Party in connection therewith;
provided, that (i) the Indemnitor may participate, through
counsel chosen by it and at its own expense, in the defense of
any such claim, action or suit as to which the Indemnified Party
has so elected to conduct and control the defense thereof; and
(ii) the Indemnified Party shall not, without the written consent
of the Indemnitor (which written consent shall not be
unreasonably withheld), pay, compromise or settle any such claim,
action or suit, except that no such consent shall be required if,
following a written request from the Indemnified Party, the
Indemnitor shall fail, within 14 days after the making of such
request, to acknowledge and agree in writing that, if such claim,
action or suit shall be adversely determined, such Indemnitor has
an obligation to provide indemnification hereunder to such
Indemnified Party. Notwithstanding the foregoing, the
Indemnified Party shall have the right to pay, settle or
compromise any such claim, action or suit without such consent,
provided, that in such event the Indemnified Party shall waive
any right to indemnity therefor hereunder unless such consent is
unreasonably withheld.
(b) If there shall be any conflict between the provisions
of this Section 11.3 and 10.3 (relating to Tax contests), the
provisions of Section 10.3 shall control with respect to Tax
contests.
11.4. Fraud or Intentional Misconduct. Nothing in this
Article XI shall limit any claim that a party may have against
another party based on the fraud, gross negligence or intentional
misconduct of such party.
11.5. Waiver of Certain Claims by Members. (a)
Notwithstanding anything to the contrary in this Agreement, the
Members hereby waive, as of the Closing Date, any claim they may
have against Fjord or its directors or officers for a breach of
any representation of warranty contained in Article VI, except
for a claim for fraud, gross negligence or intentional misconduct
as permitted by Section 11.4.
(b) Notwithstanding anything to the contrary in this
Agreement, Fjord hereby waives as of the Closing Date, any claim
it may have against Xxxxx or the Members, or their respective
directors, managers or officers for a breach of any
representation of warranty contained in Article IV or V, except
for Section 4.7 and Section 4.8, and except for a claim for
fraud, gross negligence or intentional misconduct as permitted by
Section 11.4.
ARTICLE XII
TERMINATION
12.1. Termination. This Agreement may be terminated at
any time prior to the Closing Date, whether before or after the
Shareholders Meeting:
(a) by mutual written consent of Xxxxx and Fjord;
(b) by Xxxxx if (i) Fjord shall have failed to comply in
any material respect with any of its covenants or agreements
contained in this Agreement required to be complied with prior to
the date of such termination, which failure to comply has not
been cured within thirty days following receipt by Fjord of
written notice from Xxxxx of such failure to comply; (ii) there
has been a material breach by Fjord of any representation or
warranty that is not qualified as to materiality which has the
effect of making such representation or warranty not true and
correct in all material respects; or (iii) there has been a
breach by Fjord of any representation or warranty that is
qualified as to materiality, in the case of each of (ii) and
(iii) which breach has not been cured within thirty business days
following receipt by Fjord from Xxxxx of written notice of the
breach;
(c) by Fjord if (i) the Members or Xxxxx shall have failed
to comply in any material respect with any of their respective
covenants or agreements contained in this Agreement required to
be complied with prior to the date of such termination, which
failure to comply has not been cured (if capable of cure) within
thirty days following receipt by the Members and Xxxxx of written
notice from Fjord of such failure to comply; (ii) there has been
a material breach by the Members or Xxxxx of any representation
or warranty that is not qualified as to materiality which has the
effect of making such representation or warranty not true and
correct in all material respects; or (iii) there has been a
breach by the Members or Xxxxx of any representation or warranty
that is qualified as to materiality, in the case of each of (ii)
and (iii) which breach has not been cured (if capable of cure)
within thirty business days following receipt by the Members from
Fjord of written notice of the breach;
(d) by Fjord or Xxxxx if: (i) the Subscription has not
been effected on or prior to the close of business on June 30,
2001; provided, however, that the right to terminate this
Agreement pursuant to this Section 12.1(d) shall not be available
to any party whose failure to fulfill any of its obligations
contained in this Agreement has been the cause of, or resulted
in, the failure of the Subscription to have occurred on or prior
to the aforesaid date; or (ii) any court or other Governmental
Body having jurisdiction over a party hereto shall have issued an
order, decree or ruling or taken any other action permanently
enjoining, restraining or otherwise prohibiting the transactions
contemplated by this Agreement and such order, decree, ruling or
other action shall have become final and nonappealable;
(e) by Fjord or Xxxxx if the Fjord Shareholder Approval is
not obtained at the Shareholders Meeting;
(f) by Fjord if there exists a Material Adverse Effect with
respect to Xxxxx or the Xxxxx Subsidiaries which has not been
cured within thirty days following receipt by the Members and
Xxxxx of written notice from Fjord of the existence thereof; or
(g) by Xxxxx if there exists a Material Adverse Effect with
respect to Fjord which has not been cured within thirty days
following receipt by Fjord of written notice from Xxxxx of the
existence thereof.
The right of any party hereto to terminate this Agreement
pursuant to this Section 12.1 shall remain operative and in full
force and effect regardless of any investigation made by or on
behalf of any party hereto, any Person controlling any such party
or any of their respective officers or directors, whether prior
to or after the execution of this Agreement.
12.2. Effect of Termination. In the event of
termination of this Agreement by either Fjord or Xxxxx, as
provided in Section 12.1, this Agreement shall forthwith become
void and there shall be no liability hereunder on the part of
Fjord, Xxxxx or the Members or their respective officers,
managers or directors (except for Section 8.2, which shall
survive the termination without limitation); provided, however,
that nothing contained in this Section 12.2 shall relieve any
party hereto from any liability for any willful breach of a
representation or warranty contained in this Agreement or the
breach of any covenant contained in this Agreement.
ARTICLE XIII
GENERAL PROVISIONS
13.1. Survival of Obligations. All representations and
warranties contained in this Agreement shall terminate on the
Closing Date, except as provided in Section 11.1(b). Except as
otherwise provided herein, no claim shall be made for the breach
of any representation or warranty contained in Articles IV, V or
VI or under any certificate delivered with respect thereto under
this Agreement after the date on which such representations and
warranties terminate as set forth herein.
13.2. Notices. All notices or other communications
required or permitted hereunder shall be in writing and shall be
deemed given or delivered (i) when delivered personally, (ii) if
transmitted by facsimile when confirmation of transmission is
received, (unless such transmission is sent outside of the
recipient's normal business hours, in which case it will be
deemed received the next business day after confirmation of the
transmission is received), or (iii) when received if sent by
registered or certified mail, return receipt requested, or by
private courier when received; and shall be addressed as follows:
(a) If to the Members to the persons and at the addresses
and facsimile numbers indicated in Schedule 2.1 of this
Agreement, with a copy to:
Xxxxxx Xxxxxx
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Facsimile: 000-000-0000
and to:
Advokatfirmaet Xxxxxx XX
X. X. Xxx 0000 Xxxx,
X-0000 Xxxx
Xxxxxx
Attention: Xxxxxxxxx Xxxxxx
Facsimile: 47-23-11-65-01
(b) If to Fjord:
FJORD SEAFOOD ASA
Toftsundet
N-8900 Bronnoysund
Norway
Attention: Xxxx Xxxxxx Torgnes, Adm. Dir.
Facsimile: 00-00-00-00-00
with a copy to:
XXXXXXXX LEGAL ANS
Kjopmannsgaten 52
Postboks 759
7408 Trondheim
Attention: Xxxx Xxxxxxx, Esq.
Facsimile: 00-00-00-00-00
and to:
BERNSTEIN, SHUR, XXXXXX & XXXXXX,
P.A.
000 Xxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxx, Xxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
Facsimile: 207-774-1127
(c) If to Xxxxx (prior to the Effective Time):
CONTISEA, LLC
ContiGroup
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Royal
Facsimile: 000-000-0000
with a copy to:
Xxxxxx Xxxxxx
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Facsimile: 000-000-0000
with a copy to:
Advokatfirmaet Xxxxxx XX
X. X. Xxx 0000 Xxxx,
X-0000 Xxxx
Xxxxxx
Attention: Xxxxxxxxx Xxxxxx
Facsimile: 47-23-11-65-01
and with a copy to:
the Members
or to such other address as such party may indicate by a notice
delivered to the other party hereto.
13.3. Successors and Assigns. (a) Neither this
Agreement nor any of the rights, interests or obligations
hereunder shall be assignable by any of the parties hereto
(whether by operation of law or otherwise) without the prior
written consent of the other parties hereto.
(b) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs and
successors. The successors hereunder shall include without
limitation, in the case of Fjord, any successors in interest
(whether by merger, liquidation (including successive mergers or
liquidations or otherwise)). Nothing in this Agreement,
expressed or implied, is intended or shall be construed to confer
upon any Person other than the parties and their respective heirs
and successors any right, remedy or claim under or by reason of
this Agreement.
13.4. Entire Agreement; Amendments. This Agreement and
the Exhibits and Schedules referred to herein and the documents
delivered pursuant hereto contain the entire understanding of the
parties hereto with regard to the subject matter contained herein
or therein, and supersede all prior agreements, understandings or
letters of intent between or among any of the parties hereto.
The Letter of Intent is hereby superseded, and of no further
force and effect, except for the second paragraph of Section 8
thereof, which shall survive.
13.5. Waivers; Instructions by Members. Any term or
provision of this Agreement may be waived, or the time for its
performance may be extended, by the party or parties entitled to
the benefit thereof. Any such waiver shall be validly and
sufficiently given for the purposes of this Agreement if, as to
any party, it is in writing signed by an authorized
representative of such party. The failure of any party hereto to
enforce at any time any provision of this Agreement shall not be
construed to be a waiver of such provision, nor in any way to
affect the validity of this Agreement or any part hereof or the
right of any party thereafter to enforce each and every such
provision. No waiver of any breach of this Agreement shall be
held to constitute a waiver of any other or subsequent breach.
Any waiver, consent, determination, approval or instruction by
Members referred to in this Agreement shall be effected by
delivery of a written notice to Fjord in accordance with Section
13.2.
13.6. Partial Invalidity. Wherever possible, each
provision hereof shall be interpreted in such manner as to be
effective and valid under applicable law, but in case any one or
more of the provisions contained herein shall, for any reason, be
held to be invalid, illegal or unenforceable in any respect, such
provision shall be ineffective to the extent, but only to the
extent, of such invalidity, illegality or unenforceability
without invalidating the remainder of such provision or
provisions or any other provisions hereof, unless such a
construction would be unreasonable.
13.7. Execution in Counterparts. This Agreement may be
executed in two or more counterparts, each of which shall be
considered an original instrument, but all of which shall be
considered one and the same agreement, and shall become binding
when one or more counterparts have been signed by each of the
parties hereto and delivered to each of the parties hereto.
13.8. Governing Law. This Agreement shall be governed
by and construed in accordance with the internal laws (as opposed
to the conflicts of law provisions) of the Kingdom of Norway.
13.9. Arbitration. (a) All disputes, differences,
controversies, or claims arising out of, related to, or in
connection with this Agreement or the transactions contemplated
hereby shall be submitted to and resolved by arbitration in Oslo,
Norway conducted in the English language in accordance with the
ICC Rules; provided, however, notwithstanding anything herein to
the contrary, this Section 13.9 shall not apply to any dispute,
difference, controversy or claim for which a party may be
entitled to an equitable remedy, such as specific performance or
preliminary or final injunctive relief, including, without
limitation, any remedy pursuant to Section 8.1 of this Agreement.
(b) A claimant shall communicate a copy of the notice of
arbitration to all parties to this Agreement whether or not they
are named as a respondent in the arbitration.
(c) The number of arbitrators shall be three. The Members
shall appoint one disinterested arbitrator, and Fjord shall
appoint one disinterested arbitrator. The two so appointed shall
appoint a third disinterested arbitrator, who shall be the
presiding arbitrator. In the event that the presiding arbitrator
cannot be agreed upon within 30 days after the other two
arbitrators have been selected, either party may request that
such presiding arbitrator be appointed by the Oslo City Court.
All arbitrators shall be capable of participating in proceedings
conducted in the English language. The arbitrators shall be
Norwegian lawyers. The parties shall appoint their arbitrators
within 30 days after the claimant files and serves a written
request for arbitration.
(d) Contrary to the first phrase of Article 14 of the ICC
Rules, if any arbitrator is replaced, including the presiding
arbitrator, any hearing held previously shall be repeated only if
and to the extent deemed necessary by the arbitrators.
(e) At any time, a party may seek or obtain preliminary,
conservatory, or interim relief from a court or the arbitrators.
(f) The parties shall keep the arbitration confidential and
shall not disclose to any person, other than those necessary to
the proceedings, the existence of the arbitration, any document
submitted or exchanged in connection with it, any oral
submissions or testimony, transcripts, or any award unless
disclosure is required by law or is necessary to challenge,
recognize, or enforce an award.
(g) To the extent lawful, the parties exclude any right of
application or appeal to the courts of Norway, the United States,
or otherwise in connection with any question of law arising in
the arbitration or in connection with any award or decision made
by the arbitrators except as is necessary to recognize or enforce
such award or decision.
(h) The costs of arbitration, including reasonable legal
fees and expenses of the parties, shall be borne by the parties
in the proportion decided by the arbitrators, provided that the
parties shall initially split equally the costs and fees of the
arbitrators and the administrative arbitration expenses.
(i) An award in favor of Fjord shall be in Norwegian NOKs,
and an award in favor of the Members shall be in U.S. dollars.
(j) Any decision or award of the arbitrators shall be
final, conclusive, and binding on the parties, and judgment may
be entered on any award in any court of competent jurisdiction.
(k) The parties waive any objection to the method of
service or delivery of any document that is delivered in
accordance with Section 13.2 with respect to notices.
13.10. Expenses. The expenses of Xxxxx and of the
Members incurred directly or indirectly in conjunction with this
Agreement and the transactions contemplated hereby and thereby
shall be borne by the Members. The expenses of Fjord incurred
directly or indirectly in conjunction with this Agreement, and
the transactions contemplated hereby and thereby shall be borne
by Fjord.
13.11. Further Assurances. From time to time after the
Closing, at the request of any party hereto, each of the other
parties hereto shall execute and deliver such other instruments
of conveyance, assignment, transfer and delivery and take such
other reasonable actions as may be necessary, in the reasonable
discretion of the requesting party, to (i) transfer, convey,
assign and deliver the Membership Interests to Fjord and to
enable Fjord to exercise and enjoy all rights and benefits of the
owner and holder thereof, (ii) transfer, convey, assign and
deliver the Shares to the Members and to enable the Members to
exercise and enjoy all rights and benefits of the owners and
holders thereof, and (iii) carry out or effect the transactions
contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed the day and year first above written.
FJORD SEAFOOD ASA
By:/s/Xxxx Xxxxxx Torgues
Name: Xxxx Xxxxxx Torgues
Title: CEO
CONTISEA, LLC
By:/s/Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: CEO
MEMBERS:
CONTIGROUP COMPANIES
By:/s/Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive VP and CFO
DRFF CORP.
By:/s/Xxxxxxx Xxxxxxxxxx
Name: Xxxxxxx Xxxxxxxxxx
Title: President
SEABOARD CORPORATION
By:/s/Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President, Treasurer
and Chief Financial Officer
SABROSO AS
By:/s/Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: President
The following Exhibits and Schedules to the Subscription Agreement
have been omitted. The Company agrees to furnish to the Commission
supplementally a copy of any such omitted Exhibit or Schedule upon
request.
List of Exhibits
Exhibit A: Amended and Restated Articles of Association of Fjord
Exhibit B: Xxxxx Prospectus Statement
Exhibit C: ContiGroup Companies, Inc. and Seaboard
Corporation Agreement to Restrict Sale of Shares
List of Schedules
Schedule 2.1 Membership Interests/Shares
Schedule 3.3(H) Managers, Directors and Officers of
Xxxxx and Xxxxx Subsidiaries
Schedule 4.1 Organization of Xxxxx and Xxxxx Subsidiaries
Schedule 4.4 Consents and Approvals of Xxxxx and Xxxxx
Subsidiaries
Schedule 4.5 Subsidiaries' Shares or Membership Interests and
Investments
Schedule 4.6 Financial Statements
Schedule 4.7 Taxes (A-C)
Schedule 4.8 Environmental Matters
Schedule 4.9 Employee Benefit Plans
Schedule 5.1 Organization and Authority of Members
Schedule 5.2 Intercompany Accounts and Contracts
Schedule 6.4: Consents and Approvals of Fjord; No
Violations
Schedule 7.3(A): Operations Prior to Closing Date
