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EXHIBIT 2.01
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT made this 28th day of January, 1998, by
and among FLOWERS INDUSTRIES, INC., a Georgia corporation (hereinafter referred
to as "Purchaser"), ARTAL LUXEMBOURG S.A., a Luxembourg corporation (hereinafter
referred to as "Seller") and KEEBLER FOODS COMPANY, a Delaware corporation
(hereinafter referred to as "Keebler").
W I T N E S S E T H:
WHEREAS, Purchaser and Seller are stockholders of Keebler; and
WHEREAS, Seller has requested, and Purchaser has consented to, a demand
registration pursuant to Section 1.1(a) of Annex A of the Stockholders'
Agreement;
WHEREAS, Seller and Purchaser have caused Keebler to file a
Registration Statement with the Securities and Exchange Commission relating to
the sale of such number of Seller's Shares and Bermore's Shares (other than
Acquired Shares) as may be determined by Seller; and
WHEREAS, it is expected that the Registration Statement will be
declared effective by the SEC at 12:00 p.m. today, subsequent to the execution
of this Agreement; and
WHEREAS, based upon an evaluation of their discussions with the
Underwriters and generally prevailing market conditions, each of the parties
hereto believes that the Underwriting Agreement will be executed on the date
hereof; and
WHEREAS, if the initial public offering is consummated, Seller and
Purchaser have agreed that Purchaser will purchase a portion of Seller's Shares
simultaneously with and conditioned upon the Closing, upon the terms and
conditions set forth herein.
NOW, THEREFORE, for and in consideration of the premises and the mutual
promises, agreements, representations, warranties and covenants hereinafter set
forth, and the sum of ten dollars and other good and valuable consideration, the
receipt and sufficiency of which is hereby specifically agreed to and
acknowledged, the parties hereto agree as follows:
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1. DEFINITIONS.
As used herein, the following terms shall have the following
meanings unless the context otherwise requires:
1.1 "Acquired Shares" shall mean 9,581,169 shares of
Keebler Stock to be sold by Seller to Purchaser at Closing, representing
approximately 11.4% of the outstanding Keebler Stock and which, together with
the purchase of the Bermore Purchase Shares, shall result in approximately
fifty-one percent (51%) ownership of the Keebler Stock, on a fully diluted
basis, by Purchaser on the Closing Date.
1.2 "Affiliate" shall mean any Person which, directly or
indirectly through one or more intermediaries, controls, is controlled by, or is
under common control with, another Person. The term "control" includes, without
limitation, the possession, directly or indirectly, of the power to direct the
management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
1.3 "Agreement" shall mean this Stock Purchase Agreement.
1.4 "Bermore" shall mean Bermore, Ltd., a Bermuda Limited
Company.
1.5 "Bermore Agreement" shall mean the Stock Purchase and
Stockholder's Agreement, among Bermore, Purchaser, Seller and Keebler of even
date herewith.
1.6 "Bermore Purchase Shares" shall mean 1,616,691 shares
of Keebler Stock to be sold by Bermore to Purchaser at Closing, representing
approximately 1.9% of the outstanding Keebler Stock and which, together with the
purchase of the Acquired Shares, shall result in approximately fifty-one percent
(51%) ownership of the Keebler Stock, on a fully diluted basis, by Purchaser on
the Closing Date.
1.7 "Bermore's Shares" shall mean the shares of Keebler
Stock owned by Bermore.
1.8 "CEO Consent Period" shall have the meaning set forth
in Section 13.1.3.
1.9 "Closing" shall mean the consummation of the sale of
the Acquired Shares pursuant to the terms and conditions of this Agreement.
1.10 "Closing Date" shall mean the date on which the
Closing occurs pursuant to Section 7.1.
1.11 "DGCL" shall mean the General Corporation Law of the
State of Delaware.
1.12 "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
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1.13 "Extension Period" shall have the meaning set forth
in Section 13.4.
1.14 "GFI Stockholder's Agreement" shall mean that certain
GFI Stockholder's Agreement dated as of June 4, 1996 by and among Xxxxxxx, X. X.
Industries, Inc., Seller and Purchaser.
1.15 "HSR Act" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust
and Improvements Act of 1976, as amended.
1.16 "Initial Stock Repurchase Consent Period" shall have
the meaning set forth in Section 13.2.1.
1.17 "IPO" shall mean a public offering of shares of
Keebler Stock owned by Seller and Bermore pursuant to the provisions of Section
2.3 hereof.
1.18 "IPO Price" shall mean the price per share of Keebler
Stock at which it will be sold to the public pursuant to the Underwriting
Agreement, without giving effect to any underwriting spread, discounts,
commissions or reallowances.
1.19 "Keebler" shall mean Keebler Foods Company, a
Delaware corporation, formerly named "INFLO Holdings Corporation."
1.20 "Keebler Stock" shall mean the common stock, $.01 par
value per share, of Keebler.
1.21 "Lockup Period" shall mean the period set forth in
the Underwriting Agreement during which restrictions will be placed on transfers
of Keebler Stock by Seller, as such period may be reduced or waived by the
Underwriters, with respect to all of the remaining shares of Keebler Stock owned
by the Seller upon Closing.
1.22 "Management" shall mean the members of management of
Keebler who either (i) directly own shares of Keebler Stock as of the date
hereof or (ii) have been granted stock options by Keebler to purchase shares of
Keebler Stock (A) as of the date hereof, (B) pursuant to stock option plans
approved by Seller pursuant to Section 13.1 or (C) pursuant to stock options
issued under plans permitted pursuant to the proviso set forth in paragraph (f)
of Annex C.
1.23 "1933 Act" shall mean the Securities Act of 1933, as
amended.
1.24 "Per Share Purchase Price" shall mean the price
derived by dividing (i) the sum of (A) one hundred ten percent (110%) of the IPO
Price times the aggregate number of Acquired Shares and Bermore Purchase Shares,
plus (B) the lesser of (1) five percent (5%) of the IPO Price times the
aggregate number of Acquired Shares and Bermore Purchase Shares, or (2)
$13,000,000 by (ii) the number of Acquired Shares and Bermore Purchase Shares.
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1.25 "Person" shall mean an individual, a partnership, a
joint venture, a corporation, an association, a joint stock company, a limited
liability company, a trust, an unincorporated organization or a governmental
entity or any department, agency or political subdivision thereof.
1.26 "Public Float" shall mean the number of shares of
Keebler Stock that are available for trading in the public market, and shall not
in any event include (i) shares of capital stock of Keebler beneficially owned
by Seller, Purchaser, Bermore or Management prior to being sold in a transaction
resulting in such shares trading in the public market or (ii) shares of capital
stock of Keebler which are subject to statutory, contractual or other
restrictions on transfer.
1.27 "Purchase Price" shall have the meaning set forth in
Section 2.2 hereof.
1.28 "Purchaser" shall mean Flowers Industries, Inc., a
Georgia corporation.
1.29 "Registration Statement" shall mean a Registration
Statement on Form S-1 in respect of the IPO (File No. 333-42075).
1.30 "SEC" shall mean the U.S. Securities and Exchange
Commission.
1.31 "Second Stock Repurchase Consent Period" shall have
the meaning set forth in Section 13.2.2.
1.32 "Securities" shall mean (a) Keebler Stock, (b) any
other capital stock of Keebler issued after the date hereof and (c) any capital
stock of Keebler issued in respect of previously issued capital stock, or in
substitution thereof, in connection with any stock split, reverse stock split,
dividend or combination, or any recapitalization, reclassification, merger,
consolidation, exchange or other similar reorganization.
1.33 "Seller" shall mean Artal Luxembourg S.A., a
Luxembourg corporation.
1.34 "Seller Directors" shall mean members of the Board of
Directors of Keebler nominated by Seller pursuant to Section 12.1 hereof.
1.35 "Seller's Shares" shall mean the shares of Keebler
Stock owned by Seller.
1.36 "Standard Consent Period" shall have the meaning set
forth in Section 13.1.1.
1.37 "Stockholders' Agreement" shall mean that certain
Stockholders' Agreement dated as of January 26, 1996 among Keebler, Seller and
Purchaser.
1.38 "Underwriters" shall mean Credit Suisse First Boston
Corporation, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx
& Co. Incorporated and SBC Warburg Dillon Read Inc.
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1.39 "Underwriting Agreement" shall mean the Underwriting
Agreement to be executed subsequent to the effectiveness of the Registration
Statement among the Underwriters, Keebler, Bermore and Seller in respect of the
IPO.
2. COVENANTS AND UNDERTAKINGS.
2.1 Purchase of Acquired Shares. Upon the terms and
subject to the conditions set forth in this Agreement and on the basis of the
representations, warranties, covenants, agreements, undertakings and obligations
contained herein, Seller hereby agrees to sell to Purchaser, and Purchaser
hereby agrees to purchase, the Acquired Shares, free and clear of all liens,
claims and encumbrances of any nature at the Closing.
2.2 Purchase Price and Payment for the Acquired Shares.
The purchase price (the "Purchase Price") to be paid by Purchaser to Seller for
the Acquired Shares will be equal to the Per Share Purchase Price times the
number of Acquired Shares, and shall be payable at Closing in cash by wire
transfer in same day funds to an account or accounts specified by Seller.
2.3 IPO. The parties hereto acknowledge that Keebler has
filed the Registration Statement with the SEC for registration of such numbers
of Seller's Shares and Bermore's Shares as may be determined by Seller. The
parties hereto agree that Seller has requested and Purchaser has consented to a
demand registration pursuant to Section 1.1(a) of Annex A of the Stockholders'
Agreement, and in connection therewith, agree to use their reasonable best
efforts to (i) cause the Registration Statement to be declared effective by the
SEC, (ii) engage in all actions reasonably requested by the Seller, Purchaser or
the Underwriters in order to effectuate or facilitate the marketing and sale of
Seller's Shares and Bermore's Shares and (iii) assist in and take all other
actions in furtherance of the consummation of the IPO. The procedures, further
agreements, rights and obligations of the parties hereto regarding the
Registration Statement and the sale of any portion of Seller's Shares thereunder
(including any procedures, further agreements, rights and obligations applicable
after the Closing) shall be governed by the procedures in Annex A of the
Stockholders' Agreement applicable to demand registrations made pursuant to
Section 1.1(a) of such Annex A, except that notwithstanding anything to the
contrary contained therein or herein, the reasonable fees and disbursements of
counsel to Seller in respect of the IPO shall be paid by Keebler as provided in
Section 14.7. Seller agrees that it shall not terminate or materially amend,
extend or otherwise modify the Underwriting Agreement without the prior written
consent of Purchaser (which consent shall not be unreasonably withheld or
delayed).
2.4 Bermore Purchase. The parties hereto recognize that
pursuant to Section 3.3 and 3.4 of the GFI Stockholder's Agreement, Bermore has
certain "tag along" rights and Purchaser and Seller have certain "drag along"
rights as more fully described in said sections. In lieu thereof, the parties
recognize that, pursuant to the Bermore Agreement, Bermore will sell to
Purchaser, and Purchaser will purchase from Bermore, the Bermore Purchase Shares
at the Per Share Purchase Price.
2.5 Bermore Participation in IPO. The parties hereto
acknowledge that pursuant to Section 1.2 of Annex A to the GFI Stockholder's
Agreement, (i) Bermore has certain
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rights regarding "Incidental Registrations" as more fully described therein,
(ii) the written notification requirements of such Section 1.2 have been
satisfied and/or waived and (iii) Bermore has elected to include the Bermore IPO
Shares (as such term is defined in the Bermore Agreement) for sale in the IPO in
accordance with the terms and provisions of the Bermore Agreement.
2.6 Termination of Stockholders' Agreement. Seller,
Purchaser and Keebler covenant and agree to terminate, the Stockholders'
Agreement effective upon the Closing except that the provisions contained in
Annex A thereof which by their terms are applicable after the consummation of an
offering made pursuant thereto (including, without limitation, provisions
relating to indemnification and contribution) shall continue to remain in full
force and effect as provided therein with respect to Seller's Shares sold in the
IPO.
2.7 Compliance with Securities Laws. In connection with
the transactions contemplated by this Agreement, the parties hereto agree to
cooperate with one another in complying with the applicable provisions of the
1933 Act and the Exchange Act and the general rules and regulations of the SEC
thereunder, and all other applicable federal and state securities laws, and each
of them agree to furnish the other, or its counsel, with such information and to
take such actions as may be reasonably requested in respect of such compliance.
2.8 Resignation. Seller covenants to cause to be
delivered at the Closing the resignation of one (1) of the three (3) Directors
nominated by it currently serving on the Board of Directors of Keebler, such
resignation to be effective immediately following the Closing. The remaining
Directors nominated by Seller shall continue to serve and remain on Keebler's
Board of Directors for the remainder of their terms in accordance with, and
subject to, the provisions of Keebler's Bylaws and Section 12.1 hereof. The
parties acknowledge that prior to the IPO, the terms of Keebler's Board of
Directors will be staggered such that (i) approximately one-third of the members
shall be elected each year for a three-year term, (ii) in order to effectuate
such staggered terms the individuals serving on the Board of Directors
immediately following the IPO will be classified as to whether they will stand
for re-election at the next ensuing annual meeting of Shareholders, the annual
meeting one year thereafter, or the annual meeting two years thereafter and
(iii) the Seller Directors shall be classified in the annual meeting two years
thereafter category.
2.9 Consents and Approvals. The parties agrees to use
their respective best efforts to obtain the waiver, consent and approval of all
persons whose waiver, consent or approval is required in order to consummate the
transactions contemplated by this Agreement.
2.10 HSR Act Filings. The parties hereunder acknowledge
that the required filings in connection with the transactions contemplated by
this Agreement under the HSR Act have been made with the Federal Trade
Commission and the Antitrust Division of the United States Department of
Justice, and, the parties hereunder agree that, as promptly as practicable from
time to time hereafter, they shall make, in cooperation with each other, all
such further filings and submissions, and take such further action, as may be
required in connection therewith. The parties shall furnish each other all
information in its or their possession necessary for compliance by the others
with the provisions of this Section 2.10. The parties hereto shall each
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notify the others immediately upon receiving any request for additional
information with respect to such filings from either the Antitrust Division of
the Department of Justice or the Federal Trade Commission and the party
receiving the request shall use its best efforts to comply with such request as
soon as possible. Subject to the termination provisions of this Agreement, no
party shall withdraw any such filing or submission without the written consent
of the other parties.
2.11 DGCL ss. 203 Opt-Out. Seller, Purchaser and Keebler
covenant and agree to take all actions necessary to cause Keebler, on or prior
to the Closing Date, to adopt an amendment to Keebler's certificate of
incorporation or bylaws expressly electing not to be governed by Section 203 of
the DGCL (or any successor statute adopted subsequent to the date hereof by the
State of Delaware or, if Keebler reincorporates in a jurisdiction other than the
State of Delaware, any similar statute of any such jurisdiction) and further
covenant to take all actions necessary to cause such amendment to be approved by
vote of a majority of the shares of Keebler Stock entitled to vote thereon. Such
amendment shall be effective as provided in DGCL Section 203(b) and if such
amendment is made to Keebler's bylaws it shall not be further amended by the
Board of Directors.
2.12 Actions by Keebler. Each of Artal and Flowers will
use its best efforts to cause Keebler to (i) take any action required to be
taken in connection with the consummation of the transactions contemplated
hereby or (ii) refrain from taking any action inconsistent with the consummation
of the transactions contemplated hereby. Artal and Flowers, acting jointly,
will, if necessary, take all steps permitted under applicable law to replace any
director who refuses or otherwise fails to use his best efforts to direct
Keebler to comply with such covenants with a director who both Artal and Flowers
believe in good faith will cause Keebler to comply with such covenants.
2.13 FIRPTA. Keebler agrees to deliver to Seller, at
Closing, the Certificate set forth on Section 8.2.3.4 and to deliver to the
Internal Revenue Service, as promptly as practicable and in any event within
thirty (30) days of the Closing, the Notice set forth in Section 8.2.3.4.
3. REPRESENTATIONS AND WARRANTIES OF THE SELLER.
The Seller represents and warrants to, and for the benefit of,
Keebler and Purchaser as follows:
3.1 Organization and Standing. Seller is a duly
organized and validly existing corporation in good standing under the laws of
Luxembourg.
3.2 Authority and Status. The Seller has the corporate
capacity and authority to execute and deliver this Agreement, to perform
hereunder, and to consummate the transactions contemplated hereby. The
execution, delivery and performance by the Seller of this Agreement and each and
every agreement, document, and instrument provided for herein have been duly
authorized and approved by the Directors of Seller and this Agreement has been
duly executed and delivered by the Seller. This Agreement and each and every
agreement, document, and instrument to be executed, delivered and performed by
the Seller in connection herewith
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constitute or will, when executed and delivered, constitute the valid and
legally binding obligations of the Seller, enforceable against it in accordance
with their respective terms, except as enforceability may be limited by
applicable general equitable principles (whether considered in a proceeding in
equity or at law) or by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, or similar laws from time to time in effect
affecting the enforcement of creditors' rights generally.
3.3 Agreement Does Not Violate Other Instruments. The
execution and delivery of this Agreement by the Seller do not, and the
consummation of the transactions contemplated hereby will not, violate any
provision of the Acte de Constitution of the Seller or violate or constitute an
occurrence of default under any provision of, or conflict with, or result in
acceleration of any obligation under, or give rise to a right by any party to
terminate its obligations under, any mortgage, deed of trust, conveyance to
secure debt, note, loan, lien, lease, agreement, instrument, or any order,
judgment, decree or other arrangement to which the Seller is a party or is bound
except where the occurrence of any such event would not have a material adverse
effect on the consummation of the transactions contemplated hereby. Except for
the filings with the SEC and various state securities authorities with regard to
the IPO and the filings required under the HSR Act, no consent, approval, order
or authorization of, or registration, declaration or filing with, any
governmental entity is required to be obtained or made by or with respect to the
Seller, in connection with the execution and delivery by the Seller of this
Agreement or the consummation of the transactions contemplated hereby, except
where the failure to obtain or make any of the foregoing would not have a
material adverse effect on the consummation of the transactions contemplated
hereby.
3.4 Litigation. There is no suit, action, proceeding,
claim or investigation pending, or, to the knowledge of Seller, threatened
against the Seller which, if pursued and/or resulting in a judgment, would have
a material adverse effect on the right of the Seller to consummate the
transactions contemplated hereby.
3.5 Shares. The Seller owns the Acquired Shares free and
clear of any liens, claims or encumbrances of any nature. Except as contemplated
by the Stockholders' Agreement, the Seller has not granted any option or right,
and is not a party to any other agreement, and no such option, right or
agreement exists, which requires, or which upon the passage of time, the payment
of money or the occurrence of any other event, may require, the Seller to
transfer any of the Seller's Shares to any one other than Purchaser. When
Purchaser acquires the Acquired Shares from the Seller as contemplated by this
Agreement, the Purchaser will receive them free and clear of any liens, claims
or encumbrances of other persons, other than liens, claims or encumbrances
resulting from acts of Purchaser.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser represents and warrants to, and for the benefit of,
the Seller and Keebler as follows:
4.1 Organization and Standing. Purchaser is a duly
organized and validly existing corporation in good standing under the laws of
the State of Georgia.
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4.2 Authority and Status. Purchaser has the corporate
capacity and authority to execute and deliver this Agreement, to perform
hereunder, and to consummate the transactions contemplated hereby. The
execution, delivery and performance by Purchaser of this Agreement and each and
every agreement, document, and instrument provided for herein have been duly
authorized and approved by its Board of Directors and this Agreement has been
duly executed and delivered by Purchaser. This Agreement and each and every
other agreement, document, and instrument to be executed, delivered and
performed by Purchaser in connection herewith constitute or will, when executed
and delivered, constitute the valid and legally binding obligations of
Purchaser, enforceable against it in accordance with their respective terms,
except as enforceability may be limited by applicable general equitable
principles (whether considered in a proceeding in equity or at law) or by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, or
similar laws from time to time in effect affecting the enforcement of creditors'
rights generally.
4.3 Agreement Does Not Violate Other Instruments. The
execution and delivery of this Agreement by Purchaser do not, and the
consummation of the transactions contemplated hereby will not, violate any
provisions of the Articles of Incorporation, as amended, or Bylaws, as amended,
of Purchaser, or violate or constitute an occurrence of default under any
provision of, or conflict with, or result in acceleration of any obligation
under, or give rise to a right by any party to terminate its obligations under,
any mortgage, deed of trust, conveyance to secure debt, note, loan, lien, lease,
agreement, instrument, or any order, judgment, decree or other arrangement to
which Purchaser is a party or is bound, except where the occurrence of any such
event would not have a material adverse effect on the consummation of the
transactions contemplated hereby. Except for the filings with the SEC and
various state securities authorities with regard to the IPO and the filings
required under the HSR Act, no consent, approval, order or authorization of, or
registration, declaration or filing with, any governmental entity is required to
be obtained or made by or with respect to Purchaser, in connection with the
execution and delivery by Purchaser of this Agreement or the consummation of the
transactions contemplated hereby, except where the failure to obtain or make any
of the foregoing would not have a material adverse effect on the consummation of
the transactions contemplated hereby.
4.4 Litigation. There is no suit, action, proceeding,
claim or investigation pending, or, to the knowledge of Purchaser, threatened
against or affecting Purchaser which, if pursued and/or resulting in a judgment,
would have a material adverse effect on the right of Purchaser to consummate the
transactions contemplated hereby.
5. REPRESENTATIONS AND WARRANTIES OF KEEBLER.
Keebler represents and warrants to, and for the benefit of,
the Seller and Purchaser as follows:
5.1 Organization and Standing. Keebler is a duly
organized and validly existing corporation in good standing under the laws of
the State of Delaware.
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5.2 Authority and Status. Keebler has the corporate
capacity and authority to execute and deliver this Agreement, to perform
hereunder, and to consummate the transactions contemplated hereby. The
execution, delivery and performance by Keebler of this Agreement and each and
every agreement, document, and instrument provided for herein have been duly
authorized and approved by its Board of Directors and this Agreement has been
duly executed and delivered by Keebler. This Agreement and each and every other
agreement, document, and instrument to be executed, delivered and performed by
Keebler in connection herewith constitute or will, when executed and delivered,
constitute the valid and legally binding obligations of Keebler, enforceable
against it in accordance with their respective terms, except as enforceability
may be limited by applicable general equitable principles (whether considered in
a proceeding in equity or at law) or by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium, or similar laws from time to time in
effect affecting the enforcement of creditors' rights generally.
5.3 Agreement Does Not Violate Other Instruments. The
execution and delivery of this Agreement by Keebler do not, and the consummation
of the transactions contemplated hereby will not, violate any provisions of the
Articles of Incorporation, as amended, or Bylaws, as amended, of Keebler, or
violate or constitute an occurrence of default under any provision of, or
conflict with, or result in acceleration of any obligation under, or give rise
to a right by any party to terminate its obligations under, any mortgage, deed
of trust, conveyance to secure debt, note, loan, lien, lease, agreement,
instrument, or any order, judgment, decree or other arrangement to which Keebler
is a party or is bound, except for (A) any defaults or violations under
Keebler's senior credit facility, which defaults or violations shall have been
waived or cured on or prior to the Closing Date and (B) Keebler's obligation to
make an offer to purchase its Senior Subordinated Notes due 2006 from the
holders thereof at a purchase price of 101% of the principal amount thereof
after the Closing, which obligation shall be satisfied by Keebler in accordance
with the provisions of the indenture governing such senior subordinated notes.
Except for the filings with the SEC and various state securities authorities
with regard to the IPO and the filings required under the HSR Act, no consent,
approval, order or authorization of, or registration, declaration or filing
with, any governmental entity is required to be obtained or made by or with
respect to Keebler, in connection with the execution and delivery by Keebler of
this Agreement or the consummation of the transactions contemplated hereby,
except where the failure to obtain or make any of the foregoing would not have a
material adverse effect on the consummation of the transactions contemplated
hereby.
5.4 Litigation. There is no suit, action, proceeding,
claim or investigation pending, or, to the knowledge of Keebler, threatened
against or affecting Keebler which, if pursued and/or resulting in a judgment,
would have a material adverse effect on the right of Keebler to consummate the
transactions contemplated hereby.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER.
All of the obligations of Purchaser to consummate the purchase
of the Acquired Shares contemplated by this Agreement shall be contingent upon
and subject to the satisfaction, on or before the Closing Date, of each and
every one of the following conditions, all or any of which may be waived, in
whole or in part, by Purchaser for purposes of consummating such
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transactions, but without prejudice to any other right or remedy which they may
have hereunder as a result of any misrepresentation by, or breach of any
covenant or warranty of Seller contained in this Agreement or any other
certificate or instrument furnished by Seller hereunder.
6.1 Representations True at Closing. The representations
and warranties made by Seller and Keebler to Purchaser in this Agreement and the
Exhibits and Annexes hereto shall be true and correct in all material respects
on the Closing Date with the same force and effect as though such
representations and warranties had been made on and as of such date, except for
changes contemplated by this Agreement.
6.2 Covenants of Seller and Keebler. Each of Seller and
Keebler shall have duly performed all of the covenants, acts and undertakings to
be performed by it on or prior to the Closing Date, and a duly authorized
officer of each of Seller and Keebler shall deliver to Purchaser certificates
dated as of the Closing Date certifying, as to themselves only, to the
fulfillment of this condition and the condition set forth in Section 6.1 hereof.
6.3 No Injunction, Etc. No action, proceeding,
investigation, regulation or legislation which is related to or arises out of
this Agreement or the transactions contemplated hereby shall have been
instituted, threatened or proposed before any court, governmental agency or
legislative body which is reasonably likely to enjoin, restrain, prohibit or
obtain substantial damages from Purchaser or Keebler in respect of, this
Agreement or the consummation of the transactions contemplated hereby.
6.4 Approvals. The execution and the delivery of this
Agreement and the consummation of the transactions contemplated hereby shall
have been approved by all regulatory authorities whose approvals are required by
law and all applicable waiting periods under the HSR Act shall have expired or
been terminated.
6.5 Effectiveness of Registration Statement. The
Registration Statement shall have been declared effective by the SEC, and no
stop order suspending effectiveness shall have been issued, and no action, suit,
proceeding or investigation by the SEC to suspend the effectiveness thereof
shall have been initiated and be continuing. The shares of Keebler Stock to be
sold by the Seller and Bermore pursuant to the Registration Statement shall have
been registered for issuance under all applicable Blue Sky laws or shall be
exempt from such registration, and no stop order shall have been issued with
respect to the issuance or sale of such securities by any Blue Sky authority.
6.6 Closing of IPO. The closing of the IPO shall have
occurred contemporaneously with the Closing.
6.7 No Amendment, Extension or Termination of
Underwriting Agreement. Seller shall not have terminated or have materially
amended, extended or otherwise modified the Underwriting Agreement without the
prior written consent of Purchaser (which consent shall not be unreasonably
withheld or delayed).
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7. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE SELLER TO
CLOSE.
All of the obligations of Seller to consummate the sale of the Acquired
Shares contemplated by this Agreement shall be contingent upon and subject to
the satisfaction, on or before the Closing Date, of each and every one of the
following conditions, all or any of which may be waived, in whole or in part by
Seller, but without prejudice to any other right or remedy which they may have
hereunder as a result of any misrepresentation by, or breach of any covenant or
warranty of, Purchaser contained in this Agreement, or any certificate or
instrument furnished by it hereunder.
7.1 Representations True at Closing. The representations
and warranties made by Purchaser and Keebler to Seller in this Agreement and the
Exhibits and Annexes hereto shall be true and correct in all material respects
on the Closing Date with the same force and effect as though such
representations and warranties had been made on and as of such date, except for
changes contemplated by this Agreement.
7.2 Covenants of Purchaser and Keebler. Each of Purchaser
and Keebler shall have duly performed all of the covenants, acts and
undertakings to be performed by them on or prior to the Closing Date, and a duly
authorized officer of each of Purchaser and Keebler shall deliver certificates
dated as of the Closing Date certifying, as to themselves only, to the
fulfillment of this condition and the condition set forth under Section 7.1
above.
7.3 No Injunction, Etc. No action, proceeding,
investigation, regulation or legislation which is related to or arises out of
this Agreement or the transactions contemplated hereby shall have been
instituted, threatened or proposed before any court, governmental agency or
legislative body which is reasonably likely to enjoin, restrain, prohibit or
obtain substantial damages from Seller or Keebler in respect of, this Agreement
or the consummation of the transactions contemplated hereby.
7.4 Approvals. The execution and the delivery of this
Agreement and the consummation of the transactions contemplated hereby shall
have been approved by all regulatory authorities and all courts whose approvals
are required by law and all applicable waiting periods under the HSR Act shall
have expired or been terminated.
7.5 Effectiveness of Registration Statement. The
Registration Statement shall have been declared effective by the SEC, and no
stop order suspending effectiveness shall have been issued, and no action, suit,
proceeding or investigation by the SEC to suspend the effectiveness thereof
shall have been initiated and be continuing. The shares of Keebler Stock to be
sold by the Seller and Bermore pursuant to the Registration Statement shall have
been registered for issuance under all applicable Blue Sky laws or shall be
exempt from such registration, and no stop order shall have been issued with
respect to the issuance or sale of such securities by any Blue Sky authority.
7.6 Closing of IPO. The closing of the IPO shall have
occurred contemporaneously with the Closing.
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8. CLOSING.
8.1 Time and Place of Closing. The consummation of the
transactions provided for in this Agreement (herein referred to as the
"Closing") shall be held at the offices of Cravath, Swaine & Xxxxx, 000 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, contemporaneously with, and conditioned upon,
the closing of the IPO (herein referred to as the "Closing Date") unless another
place or date is agreed to in writing by the Seller and Purchaser.
8.2 Transactions at Closing. At the Closing, each of the
following transactions shall occur:
8.2.1 Seller's Performance. Seller shall deliver
to Purchaser and Keebler the following:
8.2.1.1 all certificates representing the
Acquired Shares, duly endorsed for transfer or accompanied by instruments of
transfer reasonably satisfactory in form and substance to Purchaser and its
counsel;
8.2.1.2 the certificate of a duly
authorized officer of the Seller described in Section 6.2;
8.2.1.3 certified copies of resolutions
of the Board of Directors of the Seller approving the transactions set forth in
and contemplated by this Agreement;
8.2.1.4 certificates of incumbency for
the officers of the Seller who are executing this Agreement and the other
documents contemplated hereby;
8.2.1.5 resignation of the Director of
Keebler described in Section 2.8; and
8.2.1.6 such other evidence of the
performance of all covenants and satisfaction of all conditions required of
Seller by this Agreement, at or prior to the Closing, as Purchaser, or its
counsel may reasonably require.
8.2.2 Performance by Purchaser. Purchaser shall
deliver to the Seller and Keebler the following:
8.2.2.1 the Purchase Price payable to
Seller by wire transfer of same day funds to the account or accounts designated
by Seller in writing at least two (2) business days prior to Closing;
8.2.2.2 the certificate of a duly
authorized officer of Purchaser described in Section 7.2;
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8.2.2.3 certificate of incumbency of the
officers of Purchaser who are executing this Agreement and the other documents
contemplated hereby;
8.2.2.4 certified copies of resolutions
of the Board of Directors of the Purchaser approving the transactions set forth
in and contemplated by this Agreement; and
8.2.2.5 such other evidence of the
performance of all the covenants and satisfaction of all of the conditions
required of Purchaser by this Agreement at or before the Closing as the Seller
or its counsel may reasonably require.
8.2.3 Performance by Keebler. Keebler shall
deliver to the Seller and Purchaser the following:
8.2.3.1 the certificate of a duly
authorized officer of Keebler described in Sections 6.2 and 7.2;
8.2.3.2 certificate of incumbency of the
officers of Keebler who are executing this Agreement and the other documents
contemplated hereby;
8.2.3.3 certified copies of resolutions
of the Board of Directors of the Keebler approving the transactions set forth in
and contemplated by this Agreement;
8.2.3.4 FIRPTA Certificate and Notice to
Internal Revenue Service Pursuant to Reg. ss. 1.897-2(H) in form and substance
to comply with Treasury Regulations Sections 1.1445-2(c)(3)(i) and 1.897-2(h);
and
8.2.3.5 such other evidence of the
performance of all the covenants and satisfaction of all of the conditions
required of Keebler by this Agreement at or before the Closing as the Seller,
Purchaser or their counsel may reasonably require.
9. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
9.1 Survival of Representations and Warranties of the
Seller. All representations, warranties, agreements, covenants and obligations
made or undertaken by the Seller in this Agreement or in any document or
instrument executed and delivered pursuant hereto are material, have been relied
upon by Purchaser and Keebler, shall survive the Closing hereunder, and shall
not merge in the performance of any obligation by any party hereto.
9.2 Survival of Representations and Warranties of
Purchaser. All representations, warranties, agreements, covenants and
obligations made or undertaken by Purchaser in this Agreement or in any document
or instrument executed and delivered pursuant hereto are material, have been
relied upon by the Seller and Keebler, shall survive the Closing hereunder and
shall not merge in the performance of any obligation by any party hereto.
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9.3 Survival of Representations and Warranties of
Keebler. All representations, warranties, agreements, covenants and obligations
made or undertaken by Keebler in this Agreement or in any document or instrument
executed and delivered pursuant hereto are material, have been relied upon by
Purchaser and Seller, shall survive the Closing hereunder, and shall not merge
in the performance of any obligation by any party hereto.
10. TERMINATION.
10.1 Method of Termination Prior to Closing. This
Agreement shall terminate immediately (a) if the Underwriting Agreement has not
been (i) executed by the parties thereto and (ii) prior to such execution,
consented to by Flowers in writing, in each case by 11:59 p.m. on the date
hereof, or (b) upon termination or abandonment of the Underwriting Agreement by
the parties thereto without any further action by the parties hereto, and may
also be terminated or abandoned prior to Closing only by the mutual written
consent of Purchaser and Seller, notwithstanding prior approval by either of
such corporations.
10.2 Effect of Termination Prior to Closing. In the event
of a termination of this Agreement, prior to Closing (i) each party shall pay
the costs and expenses incurred by it in connection herewith, (ii) no party (or
any of its officers, directors, employees, agents, representatives) shall be
liable to any other party for any costs, expenses, damage or loss of anticipated
profits hereunder, (iii) each party shall retain any and all rights attendant to
any breach of any covenant, representation or warranty made hereunder and (iv)
the Stockholders' Agreement shall remain in full force and effect.
10.3 Termination Following Closing. Should Closing occur,
this Agreement (i) shall not terminate, (ii) shall be in full force and effect ,
(iii) shall be binding on any party hereto until January 26, 2006, and (iv) as
of January 26, 2006, (A) shall terminate, (B) shall thereafter have no further
forces or effect, and (C) shall not be binding any party hereto except that the
provisions contained in Annex A hereto which by their terms are applicable after
consummation of an offering made pursuant thereto (including, without
limitation, provisions relating to indemnification and contribution) shall
continue to remain in full force and effect as provided therein with respect to
offerings made pursuant thereto prior to January 26, 2006..
11. REGISTRATION RIGHTS.
11.1 The procedures and further agreements of the parties
hereto regarding the Seller's Registration Rights for Seller's Shares which are
not sold to Purchaser pursuant to this Agreement and not sold in the IPO are set
forth in Annex A to this Agreement and incorporated herein by reference.
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12. DIRECTORS DESIGNATED BY SELLER; RIGHT OF FIRST REFUSAL.
12.1 Election of Directors. From and after the Closing Date,
Seller shall be entitled to nominate two (2) individuals for election to the
Keebler Board of Directors, provided, however, that if Seller (together with its
Affiliates) ceases to beneficially own at least 6,879,000 shares of Keebler
Stock on a fully-diluted basis, Seller shall only be entitled to nominate one
(1) individual for election to the Keebler Board of Directors pursuant to this
Section 12.1, and provided, further, that if Seller (together with its
Affiliates) ceases to beneficially own at least 2,866,250 shares of Keebler
Stock on a fully-diluted basis, Seller shall no longer be entitled to nominate
an individual to the Keebler Board of Directors pursuant to this Section 12.1.
Purchaser agrees to vote, in person or by proxy, or to enter into written
consents in respect of, all of the Keebler Stock owned by Purchaser at any
annual or special meeting of the stockholders of Keebler called for the purpose
of voting on the election of Directors or by consensual action of stockholders
without a meeting with respect to the election of Directors, in favor of the
election of the individuals nominated by Seller in accordance with this Section
12.1. At all times Seller shall have the right to recommend the removal, with or
without cause, of such Directors and the nomination of a replacement therefor.
At such time as Seller (together with its Affiliates) becomes the beneficial
owner of less than 6,879,000 shares of Keebler Stock, on a fully-diluted basis,
Seller shall cause one of the Directors nominated by it and then serving on the
Keebler Board of Directors pursuant to this Section 12.1 to tender his or her
resignation. At such time as Seller (together with its Affiliates) becomes the
beneficial owner of less than 2,866,250 shares of Keebler Stock, on a fully
diluted basis, Seller shall cause each of the Directors nominated by it and then
serving on the Keebler Board of Directors pursuant to this Section 12.1 to
tender his or her resignation. Only Keebler Stock owned by Seller on the date
hereof shall be counted for purposes of determining whether Seller (together
with its Affiliates) holds the requisite percentages to be entitled to nominate
Directors. In addition, for so long as Seller is entitled to nominate at least
one Director, it may designate one of its nominees to sit on each committee of
the Board of Directors unless such director is prohibited from sitting on such
committee under the rules of any applicable stock exchange or regulatory
authority.
12.2 Vacancies. In the event a vacancy is created on the
Board by reason of the death, removal or resignation (other than a vacancy
pursuant to Section 12.1 resulting from the reduction in the number of shares of
Keebler Stock beneficially owned by Seller and its Affiliates) of any one of the
Seller Directors, the parties hereby agree to cause Keebler's Board of Directors
to promptly hold a special meeting of the Board or to enter into a written
consent of Directors without a meeting, and to designate a person selected in
accordance with Section 12.1 hereof to fill such vacancy until the next annual
meeting of stockholders of Keebler and, if necessary, in favor of removing any
director, if any, who had been elected to fill such vacancy otherwise than in
accordance with the selection procedures of Section 12.1 hereof. At such next
annual meeting of stockholders of Keebler, each of Purchaser and Seller agrees
to vote all its shares of Keebler Stock in favor of the person or persons
selected in accordance with Section 12.1 for a term equal to the remaining term
of the original director whose death, removal or resignation created the
vacancy.
12.3 Restrictions on Other Agreements.
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12.3.1 Neither Seller nor Purchaser shall grant
any proxy or enter into or agree to be bound by any voting trust or voting
agreement or any stockholder agreements or arrangements of any kind with any
Person with respect to any Securities on terms inconsistent with the provisions
of this Agreement, including but not limited to, agreements or arrangements with
respect to the acquisition or disposition of Securities in a manner which is
inconsistent with this Agreement.
12.3.2 Seller shall not, without the prior
approval of a majority of the Board of Directors of Keebler (excluding for the
purpose of determining whether there is a majority any Seller Director) (a)
solicit, or in any way encourage or assist in the solicitation of, proxies with
respect to any Securities intended to result in the election of directors of
Keebler in opposition to those directors recommended by the Board of Directors
of Keebler, so long as such board recommendation is not inconsistent with the
terms of this Agreement, nor shall it become a "participant" in any
"solicitation" (as such terms are used in Rule 14a-11 under the Exchange Act)
relating to any such election or (b) join a "group" (as such term is used in
Section 13(d)(3) of the Exchange Act), or otherwise act in concert with any
other Person for the purpose of seeking to (i) enter into, directly or
indirectly, any merger or business combination involving Keebler (ii) purchase,
directly or indirectly, a controlling interest in Keebler or (iii) change the
directors of Keebler, so long as, with respect to clauses (i), (ii) and (iii),
Seller has received prior written notification from Keebler that such action is
opposed by a majority of the Board of Directors of Keebler (excluding for the
purpose of determining whether there is a majority any Seller Director); it
being understood that neither (a) nor (b) shall prevent (x) soliciting efforts
by Seller not as a member of a "group" or in concert with any other Person
either in favor of or against any transaction (including a merger or other
business combination) involving Keebler or its stockholders or (y) the sale of
shares of Keebler Stock by Seller at any time to any Person.
12.3.3 By execution of this Agreement, each of
Seller and Purchaser represents that it is not presently a party to, or bound
by, any arrangement prohibited by this Section 12.3.
12.4 The procedures and further agreements of the parties
hereto regarding the grant by Seller to Keebler of a right of first refusal in
respect of the Seller's Shares (other than the Acquired Shares and Seller's
Shares sold in the IPO) are set forth in Annex B to this Agreement and
incorporated herein by reference.
13. SELLER CONSENT RIGHTS.
13.1 Corporate Actions.
13.1.1 From the Closing Date until the earlier
of (i) the date on which Seller (together with its Affiliates) beneficially owns
less than 4,586,000 shares of Keebler Stock or (ii) thirty-six (36) months after
the termination of the Lockup Period (such period, the "Standard Consent
Period"), the actions set forth in subsections (b), (c), (e) and (f) of Annex C
shall require the prior written consent of Seller, and Keebler and Purchaser
shall not take or permit to be taken any such actions without such prior written
consent; provided, however, that
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the Extension Period shall be added to, and extend, the thirty-six (36) month
period set forth in (ii) above.
13.1.2 From the Closing Date until the date on
which Seller (together with its Affiliates) beneficially owns less than
2,293,000 shares of Keebler Stock, the actions set forth in subsections (a) and
(g) of Annex C shall require the prior written consent of Seller, and Keebler
and Purchaser shall not take or permit to be taken any such action without such
prior written consent.
13.1.3 From the Closing Date until the earlier of
(i) the date on which Seller (together with its Affiliates) beneficially owns
less than 4,586,000 shares of Keebler Stock or (ii) thirty-six (36) months after
the Closing Date (such period, the "CEO Consent Period"), the action set forth
in subsection (d) of Annex C shall require the prior written consent of at least
one of the Seller Directors, and Keebler and Purchaser shall not take or permit
to be taken any such action without such prior written consent; provided,
however, that the Extension Period shall be added to, and extend, the thirty-six
(36) month period set forth in (ii) above.
13.1.4 With respect to each of the actions set
forth in subsections (a) through (g) of Annex C, the actions set forth in
subsection (h) of Annex C shall require the prior written consent of Seller, and
Keebler and Purchaser shall not take or permit to be taken any such action
without such prior written consent, for so long as each such underlying action
requires such prior written consent.
13.2 Purchases of Keebler Stock.
13.2.1 From the Closing Date until the earlier of
(i) the date on which Seller (together with its Affiliates) beneficially owns
less than 4,586,000 shares of Keebler Stock or (ii) twenty-four (24) months
after the termination of the Lockup Period (such period, the "Initial Stock
Repurchase Consent Period"), any purchase of shares of Keebler Stock by
Purchaser or Keebler (other than purchases (A) by Purchaser or Keebler pursuant
to put rights contained in agreements in effect on the Closing Date, (B) by
Purchaser or Keebler from Artal or Management so long as such shares of Keebler
Stock are not part of the Public Float at the time of purchase, (C) by Keebler
from Bermore of Bermore's Shares which are permitted to be transferred by
Bermore as a "Monthly Transfer" pursuant to Section 4.2(e) of the Bermore
Agreement or by Purchaser or Keebler, as the case may be, pursuant to the
tag-along and drag-along rights contained in Sections 4.3 and 4.4 of the Bermore
Agreement and (D) by Purchaser and Keebler which together, in the aggregate with
any prior such purchases, do not exceed fifteen percent (15%) of the Public
Float in Keebler Stock immediately after the Closing) shall not be consummated
without the prior written consent of Seller, and Keebler and Purchaser shall not
take or permit to be taken any such action without such prior written consent;
provided, however, that the Extension Period shall be added to the twenty-four
(24) month period set forth in (ii) above; and provided, further, that Purchaser
will have the right at any time to purchase the number of shares of Keebler
Stock required to maintain beneficial ownership of at least fifty-one percent
(51%) of Keebler Stock on a fully diluted basis.
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13.2.2 After the expiration of the Initial Stock
Repurchase Consent Period (including any Extension Period added thereto) and
until the earlier of (i) the date on which Seller (together with its Affiliates)
beneficially owns less than 4,586,000 shares of Keebler Stock or (ii) thirty-six
(36) months after the termination of the Lockup Period (the Second Stock
Repurchase Consent Period), any purchase of shares of Keebler Stock by Purchaser
or Keebler (other than purchases (A) by Purchaser or Keebler pursuant to put
rights contained in agreements in effect on the Closing Date, (B) by Purchaser
or Keebler from Artal, Bermore or Management so long as such shares of Keebler
Stock are not part of the Public Float at the time of purchase , (C) by Keebler
from Bermore of Bermore's Shares which are permitted to be transferred by
Bermore as a "Monthly Transfer" pursuant to Section 4.2(e) of the Bermore
Agreement or by Purchaser or Keebler, as the case may be, pursuant to the
tag-along and drag-along rights contained in Sections 4.3 and 4.4 of the Bermore
Agreement and (D) by Purchaser and Keebler which together, in the aggregate with
any prior such purchases during the Second Stock Repurchase Consent Period and
purchases made during the Initial Stock Repurchase Consent Period, do not exceed
fifteen percent (15%) of the Public Float in Keebler Stock on the date
immediately preceding any such purchase) shall not be consummated without the
prior written consent of Seller, and Keebler and Purchaser shall not take or
permit to be taken any such action without such prior written consent; provided,
however, that the Extension Period shall be added to the thirty-six (36) month
period set forth in (ii) above, and provided, further, that Purchaser will have
the right at any time to purchase the number of shares of Keebler Stock required
to maintain beneficial ownership of at least fifty-one percent (51%) of Keebler
Stock on a fully diluted basis.
13.3 Sales of Keebler Stock. Until the expiration of the
Standard Consent Period (including any Extension Period added thereto), the
Purchaser agrees not to sell any shares of Keebler Stock without the prior
written consent of Seller, and Purchaser shall not take or permit to be taken
any such action without such prior written consent, other than private
placements of Keebler Stock by Purchaser in connection with any strategic joint
venture or other similar transactions entered into by Purchaser so long as
Purchaser retains a majority of the economic benefit and the controlling voting
interest in such joint venture or other similar entity.
13.4 For purposes of this Agreement, the "Extension
Period" shall mean the period equal to the aggregate periods of any
postponements or suspensions made pursuant to Section 1.1(g) of Annex A,
excluding the first thirty days of the first such postponement or suspension;
provided, however, that the Extension Period shall extend the Standard Consent
Period, the CEO Consent Period, the Initial Stock Repurchase Consent Period or
the Second Stock Repurchase Consent Period only if such postponements or
suspensions occur prior to the end of such respective period and shall only
extend such respective period for the lesser of (i) one hundred eighty (180)
days or (ii) that number of days that would provide for a full number of days in
the respective period if there had not been a postponement or suspension. Should
there be any postponement or suspension occurring during the Extension Period
then the Extension Period shall be extended further for the amount of time of
each such postponement or suspension.
13.5 No After Acquired Shares. For purposes of
calculating the share ownership of Seller (together with its Affiliates) under
this Agreement (including, without
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limitation, Articles 12 and 13 hereof) only the shares owned by Seller as of the
date hereof shall be counted and any shares acquired by Seller or any of its
Affiliates after the date hereof (except for shares owned as of the date hereof
by Seller or any of its Affiliates which are subsequently acquired by Seller or
any Affiliate through transfers among themselves) shall not be counted.
13.6 Beneficial Ownership. For purposes of this Agreement,
Seller (together with its Affiliates) shall be deemed to beneficially own shares
of Keebler Stock if they would be deemed a beneficial owner for purposes of Rule
13d-3 of the Exchange Act.
14. GENERAL PROVISIONS.
14.1 Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be delivered by hand,
mailed by registered or certified mail, return receipt requested, or sent by
Federal Express or other nationally recognized overnight delivery service
addressed as follows:
14.1.1 If to the Seller:
Artal Luxembourg S.A.
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx Xxxx, Xxxxxxxxxx
Attn: Managing Director
with copies to:
c/o The Invus Group, Ltd.
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxx
and:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxx, Esq.
14.1.2 If to Purchaser:
G. Xxxxxxx Xxxxxxxx, Esq.
Flowers Industries, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxx 00000
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with a copy to:
Xxxxxx X. Xxxxx, Esq. and
Xxxxx X. Xxxxx, Esq.
Xxxxx, Day, Xxxxxx & Xxxxx
0000 XxxXxxxx Xxxxx
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
14.1.3 If to Keebler:
Xxxxxx X. X'Xxxxx, Esq.
Keebler Company
000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
with a copy to:
Xxxxx X. Xxxx
Xxxxxxx & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
14.1.4 If delivered personally, the date on which
a notice, request, instruction or document is delivered shall be the date on
which such delivery is made. If delivered by mail or overnight delivery service,
the date on which such notice, request, instruction or document is received
shall be the date of delivery. In the event any such notice, request,
instruction or document is mailed or sent to a party in accordance with this
Section 13.1 and is returned to the sender as nondeliverable, then such notice,
request, instruction or document shall be deemed to have been delivered or
received on the fifth day following the deposit of such notice, request,
instruction or document in the United States mails or overnight delivery
service, as the case may be.
14.1.5 Any party hereto may change its address
specified for notices herein by designating a new address by notice in
accordance with this Section 12.1.
14.2 Certificates Representing Seller's Shares.
Immediately upon consummation of the Closing, Keebler will deliver to Seller
validly issued and executed stock certificates representing the remaining
Seller's Shares, which certificates shall no longer bear the legends currently
required by the Stockholders' Agreement.
14.3 Remedies.
14.3.1 Each party hereto shall have all rights and
remedies reserved for such party pursuant to this Agreement, Keebler's
certificate of incorporation and by-laws and all
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rights and remedies which such holders have been granted at any time under any
other agreement or contract and all of the rights which such holders have under
any law or equity. Any Person having any rights under any provision of this
Agreement will be entitled to enforce such rights specifically, to recover
damages by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law or equity.
14.3.2 The parties hereto agree that if any
parties seek to resolve any dispute arising under this Agreement pursuant to a
legal proceeding, the "prevailing" parties to such proceeding shall be entitled
to receive reasonable fees and expenses (including reasonably attorneys' fees
and expenses) incurred in connection with such proceedings. For purposes of this
Section 14.3.2, a party shall be deemed to be a "prevailing" party only if it
prevails on each element of its claim (including the amount and type of damages
sought). If neither party is the prevailing party, the parties agree to request
the court or other decision making body to make a separate determination as to
the allocation of fees and expenses.
14.3.3 It is acknowledged that it will be
impossible to measure in money the damages that would be suffered if the parties
fail to comply with any of the obligations herein imposed on them and that in
the event of any such failure, an aggrieved Person will be irreparably damaged
and will not have an adequate remedy at law. Any such Person shall, therefore,
be entitled to injunctive relief, including specific performance, to enforce
such obligations, and if any action should be brought in equity to enforce any
of the provisions of this Agreement, none of the parties hereto shall raise the
defense that there is an adequate remedy at law.
14.4 Brokers.
14.4.1 Seller agrees to indemnify and hold
harmless the Purchaser from and against any fee, claim, loss, or expense arising
out of any claim by any investment banker, broker or finder employed or alleged
to have been employed by it.
14.4.2 Purchaser agrees to indemnify and hold
harmless the Seller from and against any fee, claim, loss, or expense arising
out of any claim by any investment banker, broker or finder employed or alleged
to have been employed by it.
14.4.3 Keebler agrees to indemnify and hold
harmless the Purchaser and the Seller from and against any fee, claim, loss or
expense arising out of any claim by any investment banker, broker, or finder
employed or alleged to have been employed by it.
14.5 Further Assurances. Each party covenants that at any
time, and from time to time, after the Closing Date, it will execute such
additional instruments and take such actions as may be reasonably requested by
the other parties to confirm or perfect or otherwise to carry out the intent and
purposes of this Agreement.
14.6 Waiver. Any failure on the part of any party hereto
to comply with any of its obligations, agreements or conditions hereunder may be
waived by any other party to whom such compliance is owed. No waiver of any
provision of this Agreement shall be deemed, or
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shall constitute, a waiver of any other provision, whether or not similar, nor
shall any waiver constitute a continuing waiver.
14.7 Expenses. All expenses incurred by the parties hereto
in connection with or related to the authorization, preparation and execution of
this Agreement and the closing of the transactions contemplated hereby,
including, without limiting the generality of the foregoing, all fees and
expenses of brokers, agents, representatives, counsel and accountants employed
by any such party, shall be borne solely and entirely by the party which has
incurred the same. Notwithstanding the foregoing, except for the underwriting
discounts in respect of the Seller's Shares sold in the IPO and Seller's
out-of-pocket expenses, Keebler will bear all costs and expenses in connection
with the registration of Seller's Shares in the Registration Statement, review
and finalization of underwriting arrangements and all other aspects of the IPO
in accordance with Annex A of the Stockholders' Agreement (except that the
reasonable fees and disbursements of Seller's counsel related to the IPO shall
also be borne by Keebler).
14.8 Binding Effect. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs, legal
representatives, executors, administrators, successors and assigns. Except as
provided in Section 1.9 of Annex A, this Agreement shall not be assignable by
Seller, Purchaser or Keebler without the prior written consent of Seller and
Purchaser, except that Seller may transfer all or any portion of the Seller's
Shares, including all rights and obligations hereunder associated with
beneficial ownership of such Seller's Shares, to any of its Affiliates
(excluding Keebler) and any such Affiliate shall be subject to all of the rights
and obligations contained in this Agreement applicable to Seller.
14.9 Headings. The section and other headings in this
Agreement are inserted solely as a matter of convenience and for reference, and
are not a part of this Agreement.
14.10 Entire Agreement. This Agreement constitutes the
entire agreement among the parties hereto and supersedes and cancels any prior
agreements, representations, warranties, or communications, whether oral or
written, among the parties hereto relating to the transactions contemplated
hereby or the subject matter herein, except that the provisions contained in
Annex A of the Stockholders' Agreement which by their terms are applicable after
the consummation of an offering made pursuant thereto (including without
limitation, provisions relating to indemnification and contribution) shall
continue in full force and effect as provided therein with respect to Seller's
Shares sold in the IPO. Neither this Agreement nor any provision hereof may be
changed, waived, discharged or terminated orally, but only by an agreement in
writing signed by Purchaser and Seller. Any such change, waiver, discharge or
termination may be made without the agreement of Keebler, unless such change,
waiver, discharge or termination would materially and adversely affect Keebler's
rights and obligations hereunder.
14.11 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York without
regard to the principles thereof regarding conflict of laws, except for matters
directly within the purview of the DGCL.
14.12 Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute
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one and the same instrument. It shall not be necessary in making proof of this
Agreement to produce or account for more than one such counterpart.
14.13 Pronouns. All pronouns used herein shall be deemed to
refer to the masculine, feminine or neuter gender as the context requires.
14.14 Exhibits Incorporated. All Exhibits and Annexes
attached hereto are incorporated herein by reference.
14.15 Time of Essence. Time is of the essence in this
Agreement.
14.16 Severability. Whenever possible, each provision of
this Agreement will be interpreted in such a manner as to be effective and valid
under applicable law. The parties agree that (i) the provisions of this
Agreement shall be severable in the event that any of the provisions hereof are
held by a court of competent jurisdiction to be invalid, void or otherwise
unenforceable, (ii) such invalid, void or otherwise unenforceable provisions
shall be automatically replaced by other provisions which are as similar as
possible in terms to such invalid, void or otherwise unenforceable provisions
but are valid and enforceable and (iii) the remaining provisions shall remain
enforceable to the extent permitted by law.
14.17 Jurisdiction; Venue; Process.
14.17.1 The parties to this Agreement agree that
jurisdiction and venue in any action brought by any party hereto pursuant to
this Agreement shall properly lie and shall be brought in any federal or state
court located in the State of New York. By execution and delivery of this
Agreement, each party hereto irrevocably submits to the jurisdiction of such
courts for itself or himself and in respect of its or his property with respect
to such action. The parties hereto irrevocably agree that venue would be proper
in such court, and hereby irrevocably waive any objection that such court is an
improper or inconvenient forum for the resolution of such action.
14.17.2 Seller hereby irrevocably and
unconditionally designates and directs Xx. Xxxxx Xxx Xxxxx, with offices on the
date hereof at Northwestern University School of Law, 000 Xxxx Xxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, as its agent to receive service of any and all process
and documents on its behalf in any legal action or proceeding related to this
Agreement and agrees that service upon such agent shall constitute valid and
effective service upon Seller and that failure of such agent to give any notice
of such service to Seller shall not affect or impair in any way the validity of
such service or of any judgment rendered in any action or proceeding based
thereon.
14.18 Mutual Waiver of Jury Trial. The parties hereto waive
all right to trial by jury in any action, suit or proceeding brought to enforce
or defend any rights or remedies under this Agreement or any documents related
hereto.
14.19 Financial Statements. At all times while Seller is
entitled to nominate a Seller Director to serve on the Board of Directors of
Keebler, Keebler shall deliver to any person
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who is a Seller Director (on behalf of Seller and such person who is a Seller
Director) all information furnished to any person who is a director of Keebler
(or to any related or associated person on his or her behalf), and any person
who is a Seller Director (and up to three other individuals who are designated
by Seller in writing from time to time to act on behalf of Seller and such
person who is a Seller Director) may request (on behalf of Seller and such
person who is a Seller Director) and will receive from any of Keebler's
executive officers a copy of any written information or report which has been
generated by Keebler; provided, however, that Keebler shall not be required to
draft or generate specifically for Seller and any such person who is a Seller
Director any new information or report not otherwise prepared; and provided,
further, that the scope and timing of any such request do not unreasonably
interfere with management's ability to conduct the business of Keebler or the
ability of any particular executive officer to perform his duties. Any person
who is a Seller Director (and up to three other individuals who are designated
by Seller in writing from time to time to act on behalf of Seller and such
person who is a Seller Director) may also contact any of Keebler's executive
officers from time to time to receive (on behalf of Seller and such person who
is a Seller Director) an oral report on the status of Keebler's operations and
business; provided, that the scope and timing of any such contact do not
unreasonably interfere with management's ability to conduct the business of
Keebler or the ability of any particular executive officer to perform his
duties. Seller hereby covenants to keep all such information and reports
confidential and, without Keebler's prior written consent, not to disclose
(except (i) as required by judicial or administrative order or (ii), in the
written opinion of counsel for Seller, as required by law) any such information
or reports other than to those of its officers, directors, employees, advisors
and representatives with a need to know the information contained therein;
provided that each such person, as well as the Seller Directors and the three
other individuals who are designated from time to time as described above, shall
be informed of the confidential nature of the information and reports and Seller
will be responsible for any breach of this provision by any such person. The
preceding sentence shall be inoperative as to any particular information or
report if it (i) becomes generally available to the public other than as a
result of a disclosure by Seller or its officers, directors, employees, advisors
or representatives in violation of the preceding sentence, (ii) was available to
Seller or any such person on a non-confidential basis at or prior to the time of
its disclosure to Seller or any such person by Keebler or its executive officers
or (iii) becomes available to Seller on a nonconfidential basis from a source
other than Keebler or its executive officers, when Seller has no reasonable
basis to believe that such source is prohibited by a legal, contractual or
fiduciary obligation from making such disclosure to Seller or any such person.
14.20 Antidilution. The parties recognize that all
references to amounts of shares of Keebler Stock and the price per share to be
paid by Purchaser for any such shares referenced herein give effect to a
1-for-10 reverse stock split that occurred prior to the date hereof and assumes
consummation of a 57.325-for-1 stock split of the Keebler Stock to be
consummated by the Company immediately prior to Closing. An appropriate and
proportionate adjustment shall be made to all references to amounts of shares of
Keebler Stock referenced herein for any event, subsequent to Closing, whereby
the outstanding shares of Keebler Stock shall be, without consideration,
increased, decreased, changed into, or exchanged for a different number or kind
of shares or securities through recapitalization, reclassification, stock
dividend, stock split, reverse stock split, or other like changes to Keebler's
capitalization.
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IN WITNESS WHEREOF, each party hereto has executed or caused
this Agreement to be executed on its behalf, all on the day and year first above
written.
FLOWERS INDUSTRIES, INC.
"Purchaser"
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
--------------------------------
Title: Vice Chairman
-------------------------------
ARTAL LUXEMBOURG S.A.
"Seller"
By: /s/ Xxxx X. Komler
-------------------------------------
Name: Xxxx X. Komler
--------------------------------
Title: Managing Director
-------------------------------
KEEBLER FOODS COMPANY
"Keebler"
By: /s/ Xxxxxx X. X'Xxxxx
-------------------------------------
Name: Xxxxxx X. X'Xxxxx
--------------------------------
Title: Vice President, Secretary &
-------------------------------
General Counsel
-------------------------------
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LIST OF ANNEXES
Annex A -- Provisions Relating to Shelf and Demand Registration
Annex B -- Provisions Relating to Purchaser's Right of First Refusal
Annex C -- Seller Consent Rights
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ANNEX B
RIGHT OF FIRST REFUSAL
If, at any time after the Closing, Seller receives a bona fide offer to purchase
any or all of its shares of Keebler Stock, (the "Offer") from any of the
entities named in a letter signed by the Seller and Purchaser on the date
hereof, or from any of such entity's affiliates or successors (the "Offeror"),
which Seller wishes to accept, Seller shall cause the Offer to be reduced to
writing and shall notify Purchaser in writing (the "Offer Notice") of its wish
to accept the Offer. The Offer Notice will disclose in reasonable detail the
proposed type and number of shares of Keebler Stock (the "Offered Securities")
and the proposed terms and conditions of the transfer (including, in the event
that the consideration to be received by Seller in the Offer includes non-cash
consideration, Seller's good faith reasonable estimate (the "Seller Estimate")
of the cash value of such non-cash consideration), and shall be accompanied by a
true copy of the Offer (which shall identify the Offeror). Seller shall not be
permitted to accept any such Offer unless the right of first refusal procedures
set forth in this Annex B are complied with. Purchaser may elect to purchase all
(but not less than all) of such Offered Securities at the price and on the terms
specified in the Offer Notice by delivering written notice of such election to
Seller as soon as practicable, but in any event within 15 days after delivery of
the Offer Notice (the "Election Period"). In the event that the terms of any
Offer provide for the delivery of non-cash consideration for the Offered
Securities, Purchaser may deliver cash for such Offered Securities in an amount
equal to the value of such non-cash consideration either in accordance with the
Seller Estimate (or such other amount as agreed by Seller and Purchaser) or, if
Purchaser and Seller do not agree, as determined by in investment banking firm
of national reputation selected by mutual agreement of Purchaser and Seller,
provided, that such investment banking firm shall not have a material direct or
indirect financial interest in or other relationship with any of the parties
hereto or their respective subsidiaries or affiliates. If Purchaser has elected
to purchase all the Offered Securities from Seller, the transfer of such Offered
Securities shall be consummated as soon as practicable after the delivery of the
election notice, but in any event within 15 days after the expiration of the
Election Period (unless a longer period of time is necessary to comply with the
requirements of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended, in which case such longer period). If Purchaser has not elected to
purchase (or has failed within such 15-day period or longer period, if
applicable, to purchase after electing to do so) the Offered Securities being
offered, Seller may, within 75 days after the date of the Offer Notice, transfer
all the Offered Securities to the Offeror at a price no less than the price
specified in the Offer Notice and on other terms no less favorable to Seller
than those contained in the Offer. If, at the end of such 75 day period, Seller
has not completed the transfer of such Offered Securities as aforesaid, all the
restrictions or transfer contained in this Annex B shall again be in effect with
respect to such Keebler Stock.
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ANNEX C
SELLER CONSENT RIGHTS
(a) Any amendment to the certificate of incorporation (including any
certificate of designations) or bylaws of Keebler or any other related
corporate actions such as adoption of a "poison pill" or rights plan by
Keebler or electing to opt into the provisions of Section 203 of the
DGCL (or any successor statute adopted subsequent to the date hereof by
the State of Delaware or, if Keebler reincorporates in a jurisdiction
other than the State of Delaware, any similar statute of any such
jurisdiction) which could reasonably be expected to adversely affect
(except in immaterial respects) or is otherwise inconsistent with
(except in immaterial respects), Seller's rights under this Agreement
(it being expressly agreed that (i) customary defensive charter, by-law
and related provisions or plans adopted or approved by the Board of
Directors of Keebler in connection with or after the IPO and (ii) any
impediments or restrictions (other than impediments or restrictions (x)
imposed pursuant to mandatory applicable law or Annex B hereto or (y)
which are immaterial) on (A) Seller's ability to own, vote or dispose
of the Seller's Shares or engage in transactions involving Keebler, or
(B) any acquiror or potential acquiror of Seller's Shares ability to
own, vote or dispose of the Seller's Shares or engage in transactions
involving Keebler, would adversely affect Seller's rights under, and
are inconsistent with the provisions of, this Agreement for purposes of
this paragraph (a) of Annex C, and it being expressly acknowledged that
the fact that a proposed corporate action not of the nature described
in (i) or (ii) of this parenthetical could reasonably by expected to,
or does, affect the economic value of the Keebler Stock would not, by
itself, subject such matter to the Seller consent right described in
this paragraph (a)).
(b) Any merger, consolidation or similar business combination involving
Keebler or any sale of substantially all of Keebler's assets or equity,
or any reorganization or recapitalization having similar effect, if
such transaction results in any consideration other than cash being
paid to Keebler shareholders.
(c) Any acquisition or disposition (whether by way of sale, lease,
assignment, transfer or other disposition) of assets (including,
without limitation, primary or secondary stock or assets of Keebler's
subsidiaries) involving aggregate consideration with a value in excess
of $250,000,000, other than the sale of goods in the ordinary course of
business.
(d) Termination of the Chief Executive Officer or appointment of a Chief
Executive Officer other than Xxxxxx X. Xxxx.
(e) Issuance or sale by Keebler of any capital stock or stock options or
securities convertible into or exchangeable for capital stock, other
than pursuant to (i) outstanding stock options, (ii) stock options or
other executive compensation permitted to be granted pursuant to the
proviso set forth in paragraph (f) below, (iii) stock option plans or
stock option grants approved by Seller pursuant to Section 13.1 hereof,
or (iv) in connection with acquisitions (subject to paragraph (c)
above), provided that capital stock issued in
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connection with such acquisitions (A) shall not exceed in the aggregate
$50,000,000 in value (which value shall be determined by (i)
multiplying the number of shares of capital stock issued on any one
occasion by the closing trading price of such capital stock on the
business day immediately preceding such issuance and (ii) aggregating
the amounts from each such occasion) from the Closing Date until the
period ending during the twelve (12) months following the termination
of the Lockup Period; (B) shall not exceed in the aggregate $75,000,000
in value (which value shall be determined by (i) multiplying the number
of shares of capital stock issued on any one occasion by the closing
trading price of such capital stock on the business day immediately
preceding such issuance and (ii) aggregating the amounts from each such
occasion) during any consecutive thirty-six (36) month period following
the termination of the Lockup Period (including amounts issued pursuant
to clause (A)) and (C) shall be issued pursuant to an exemption from
registration under the 1933 Act in an unregistered transaction and
shall be subject to contractual resale restrictions which extend for a
period of no less than one year from the date of issuance.
(f) Grants under currently existing stock option or executive compensation
plans or any other stock option or executive compensation plan that
provides for the issuance of Keebler Stock or Securities convertible
into Keebler Stock; provided that this subparagraph (f) shall not apply
to grants of stock options or executive compensation to the extent that
such grants or executive compensation provide in the aggregate for
further issuances of shares of Keebler Stock after the IPO in an amount
equal to no more than four percent (4%) of the amount of Keebler Stock
issued, on a fully-diluted basis, immediately upon consummation of the
Closing of the IPO.
(g) Any related-party transaction with Keebler, except for transactions in
the ordinary course of business on terms no less favorable to Keebler
than could be obtained in a comparable arm's-length transaction with an
independent third party.
(h) Any contract or agreement to do any of the foregoing.
