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EXHIBIT 2.2
STOCK PURCHASE AGREEMENT
among
RICHMONT MARKETING SPECIALISTS INC.,
and
MSSC CAROLINA, INC.,
and
ATLAS MARKETING COMPANY, INC. EMPLOYEE STOCK OWNERSHIP PLAN,
and
XXXXX XXXXXXXX, XXXXXX DEAL, XXXX XXXXX, XXXX XXXXXXXXXX,
XXXX XXXXXXX, XXXXXX XXXX AND XXXX XXXXXX
Dated as of November 6, 1997
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TABLE OF CONTENTS
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ARTICLE I - PURCHASE AND SALE OF SHARES........................................1
Section 1.1 Purchase and Sale of Shares..................................1
Section 1.2 Date and Time of Closing.....................................2
Section 1.3 Delivery of Certificates.....................................2
Section 1.4 Allocation and Payment of Total Purchase Price...............2
Section 1.5 Agreement of Marketing Specialists
Regarding Immediately Available Funds........................2
ARTICLE II - REPRESENTATIONS AND WARRANTIES OF SELLERS.........................2
Section 2.1 Representations and Warranties of Sellers. .................2
Section 2.2 Disclosure...................................................4
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF BUYER
AND MARKETING SPECIALISTS.......................................4
Section 3.1 Representations and Warranties of Buyer......................4
Section 3.2 Representations and Warranties of Marketing
Specialists..................................................6
Section 3.3 Disclosure...................................................7
ARTICLE IV - NO PUBLICITY; CONFIDENTIALITY.....................................8
Section 4.1 No Publicity; Confidentiality................................8
ARTICLE V - COVENANTS OF PARTIES...............................................8
Section 5.1 Pre-Closing Covenants........................................8
Section 5.2 Transfer of Shares...........................................8
Section 5.3 Exclusivity..................................................9
Section 5.4 ESOP Elections...............................................9
ARTICLE VI - CONDITIONS TO CLOSING.............................................9
Section 6.1 Buyer's and Marketing Specialists's Conditions
to Closing...................................................9
Section 6.2 Sellers' Conditions to Closing..............................10
ARTICLE VII - TERMINATION.....................................................11
Section 7.1 Termination.................................................11
Section 7.2 Procedure Upon Termination..................................11
ARTICLE VIII - SURVIVAL OF REPRESENTATIONS AND WARRANTIES.....................12
Section 8.1 Survival of Representations and Warranties
of Sellers..................................................12
Section 8.2 Survival of Representations and Warranties
of Buyer and Marketing Specialists..........................12
ARTICLE IX - GENERAL PROVISIONS...............................................12
Section 9.1 Time of Essence.............................................12
Section 9.2 Notice......................................................12
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TABLE OF CONTENTS
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Section 9.3 Binding Upon Successors and Assigns........................13
Section 9.4 Counterparts...............................................14
Section 9.5 Entire Agreement...........................................14
Section 9.6 No Third-Party Beneficiaries...............................14
Section 9.7 Headings...................................................14
Section 9.8 Severability...............................................14
Section 9.9 Additional Documents.......................................14
Section 9.10 Amendments and Waivers.....................................14
Section 9.11 Expenses, Taxes, Etc.......................................15
Section 9.12 Governing Law..............................................15
Section 9.13 Commissions................................................15
Section 9.14 Definition of Knowledge....................................15
Section 9.15 Definition of Material Adverse Effect......................15
EXHIBIT A Sellers and Allocation of Shares and Total Purchase Price
EXHIBIT B Form of Promissory Note
EXHIBIT C Form of Sellers' Legal Opinion - Xxxxxx Xxxxxxx & Meschan, P.A.
EXHIBIT D Form of Sellers' Legal Opinion - Xxxxx & Xxxxxxx, P.A.
EXHIBIT E Form of Buyer's and Marketing Specialists' Legal Opinion
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is entered into as of
November 6, 1997, between Richmont Marketing Specialists Inc., a Delaware
corporation ("Marketing Specialists"), MSSC Carolina, Inc., a Delaware
corporation and a wholly owned subsidiary of Marketing Specialists (the
"Buyer"), Atlas Marketing Company, Inc. Employee Stock Ownership Plan (the
"ESOP"), and Xxxxx Xxxxxxxx, Barney Deal, Xxxx Xxxxx, Xxxx Xxxxxxxxxx, Xxxx
Xxxxxxx, Xxxxxx Xxxx and Xxxx Xxxxxx (collectively, the "Management
Shareholders" and, together with the ESOP, the "Sellers").
RECITALS
WHEREAS, the ESOP is the owner of 674,304 of the issued and outstanding
shares (the "ESOP Shares") of Common Stock, par value $.01 per share (the
"Common Stock") of Atlas Marketing Company, Inc., a corporation incorporated
under the laws of the State of North Carolina (the "Company"); and
WHEREAS, the Management Shareholders are the owners of 97,910 of the
issued and outstanding shares (the "Management Shares", and, collectively with
the ESOP Shares, the "Shares") of the Company's Common Stock; and
WHEREAS, the Sellers wish to sell, and the Buyer wishes to purchase, the
Shares on the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the covenants,
agreements, warranties and representations set forth and provided for herein,
the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
Section 1.1 Purchase and Sale of Shares. On and subject to the terms and
conditions of this Agreement, each Seller covenants and agrees that such Seller
will sell, assign and transfer to Buyer, and Buyer covenants and agrees that it
will purchase from such Seller, that number of Shares set forth opposite such
Seller's name on Exhibit "A". The amount of consideration to be paid to each
Seller shall be the amount set forth opposite such Seller's name on Exhibit "A"
(such amounts, in the aggregate, the "Total Purchase Price"). The Total Purchase
Price shall be paid by Buyer to Sellers in the manner set forth in Section 1.4.
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Section 1.2 Date and Time of Closing. The sale and purchase of the Shares
provided for by this Article I shall be consummated, provided that each of the
conditions set forth in Article VI hereto shall have been satisfied or waived,
at the offices of Xxxxxxx & Xxxxx L.L.P., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, at 10 a.m. on December 12, 1997, or such other time and place as may
be mutually agreed upon by the parties to this Agreement (the "Closing").
Section 1.3 Delivery of Certificates. At the Closing, Sellers shall
deliver to Buyer certificates representing the Shares duly endorsed in blank for
transfer (or accompanied by duly executed stock powers) and will cause the
transfer of such Shares to be duly and properly recorded in the name of Buyer.
Section 1.4 Allocation and Payment of Total Purchase Price. The Total
Purchase Price shall be $12,646,880.97, and shall be allocated among Sellers in
the amounts set forth opposite each Seller's name on Exhibit "A", which amounts
shall be paid (i) to the ESOP by wire transfer in immediately available funds
and (ii) to each Management Shareholder by wire transfer in immediately
available funds (in the amount set forth beside such Management Shareholder's
name on Exhibit "A") and by delivery of a promissory note from Marketing
Specialists in the form of Exhibit "B" (in the principal amount set forth beside
such Management Shareholder's name on Exhibit "A") (collectively, the
"Promissory Notes").
Section 1.5 Agreement of Marketing Specialists Regarding Immediately
Available Funds. Marketing Specialists hereby agrees to cause MSSC Carolina at
the Closing to have immediately available funds in an amount sufficient to allow
MSSC Carolina to meet its payment obligations regarding the wire transfers
contemplated under Section 1.4 hereof.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLERS
Section 2.1 Representations and Warranties of Sellers. Each Seller
severally represents and warrants to Buyer and Marketing Specialists that the
statements contained in this Section 2.1 regarding such Seller are true and
correct as of the date of this Agreement and will be true and correct as of the
Closing.
(a) Ownership of Stock. Such Seller has valid and marketable title
to and is the sole owner of the Shares set forth beside such Seller's name on
Exhibit "A" hereto, free and clear of any and all restrictions on transfer,
claims, taxes, security interests, liens, pledges, hypothecations, options,
warrants, rights, contracts, calls, commitments, equities, demands or other
encumbrances of any kind whatsoever (collectively, "Stock Encumbrances"). Such
Seller is not subject to any option, warrant, right, contract, call, put, or
other agreement or commitment providing for the disposition or acquisition of
any share in the capital of the Company (other than this Agreement). Upon
transfer of such Seller's Shares hereunder, Buyer will acquire valid and
marketable title to such Shares, free and clear of Stock Encumbrances thereon
imposed by, through or under such Seller.
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(b) Enforceability; No Conflicts; Required Filings and Consents.
(i) Such Seller has all requisite power and authority and
legal capacity to enter into this Agreement and to consummate the transactions
contemplated by this Agreement. In addition, in the case of the ESOP, Xxxxxx
Xxxxxxxx, the trustee of the ESOP (the "Trustee") has all requisite power and
authority to enter into this Agreement and to consummate the transactions
contemplated by this Agreement on behalf of the ESOP. This Agreement has been
duly executed and delivered by such Seller. This Agreement constitutes a valid
and binding obligation of such Seller, enforceable against such Seller in
accordance with its terms, except to the extent that such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization or other laws
affecting the enforcement of creditors' rights generally or by general equitable
principles.
(ii) The execution and delivery by such Seller of this
Agreement do not and will not (A) result in any violation or breach of, or
constitute (with or without notice or lapse of time, or both) a default (or give
rise to a right of termination, cancellation or acceleration of any obligation
or loss of any material benefit) under any of the terms, conditions or
provisions of any contract or other agreement to which such Seller is a party or
by which such Seller or any of his or its properties or assets may be bound
(including, with respect to the ESOP, its applicable organizational documents),
or (B) conflict with or violate any permit, license, judgment, order, statute,
ordinance, rule or regulation applicable to such Seller or any of his or its
properties or assets. None of the Management Shares being sold hereunder by such
Management Shareholder are subject to the community property rights of any
person other than such Management Shareholder.
(iii) No consent or approval of any court, administrative
agency or commission or other federal, state, local, foreign or other
governmental authority or instrumentality ("Governmental Entity") is required by
or with respect to such Seller in connection with the execution and delivery of
this Agreement or the consummation of the transactions contemplated by this
Agreement.
(c) Accredited Investor. Such Seller is an "Accredited Investor" as
such term is defined in Rule 501(a) promulgated under the Securities Act of 1933
as amended (the "Securities Act"). Such Seller represents and warrants that he
has such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of his investment in the Promissory
Note issued to him pursuant to Section 1.4 hereof. He has had the opportunity,
personally or through representatives, to obtain from Marketing Specialists all
information, to the extent possessed by Marketing Specialists or reasonably
obtainable by Marketing Specialists, necessary to evaluate the merits and risks
of an investment in such Promissory Note, and has concluded, based on such
information and other information previously known to him, to invest in such
Promissory Note pursuant to the terms of this Agreement.
(d) Absence of Market. Such Seller acknowledges that his Promissory
Note lacks liquidity as compared with other investments since there is not, and
there is not expected to be, any market therefor, and that the sale or transfer
of such Promissory Note must comply with the provisions of the Promissory Note
and applicable federal and state securities laws. Such Seller acknowledges that
he must bear the economic risk of his investment in such Promissory Note for an
indefinite period of time since none of the Promissory Notes has been registered
under the Securities
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Act and therefore cannot be sold unless such Promissory Notes are subsequently
registered or an exemption from registration is available.
(e) Investment Purposes. Such Seller hereby represents and warrants
that he is acquiring his Promissory Note for investment purposes only, for his
own account, and not as nominee or agent for any other person or entity, and not
with a view to, or for resale in connection with, any distribution thereof
within the meaning of the Securities Act. He has no agreement or other
arrangement with any person or entity to sell, transfer or pledge any part of
such Promissory Note and has no plans to enter into any such agreement or
arrangement.
(f) Restricted Securities. Such Seller acknowledges that Marketing
Specialists is issuing the Promissory Notes to the Sellers without registration
under the Securities Act. He further acknowledges that representatives of
Marketing Specialists have advised him that no state or federal agency or
instrumentality has made any finding or determination as to the investment in
such Promissory Note, nor has any state or federal agency or instrumentality
made any recommendation with respect to any purchase or investment in such
Promissory Note.
Section 2.2 Disclosure. Each Seller severally represents and warrants to
Buyer and Marketing Specialists that there is no information contained in this
Agreement (whether in this Article II, any other portion of this Agreement, the
Exhibits or any other documents or certificates delivered pursuant to this
Agreement) pertaining to such Seller that, to the best knowledge of such Seller,
contains an untrue statement of material fact or omits to state any material
fact required to be stated in order to make the statements made herein and
therein not materially misleading.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF BUYER AND MARKETING SPECIALISTS
Section 3.1 Representations and Warranties of Buyer. Buyer represents and
warrants that the statements contained in this Section 3.1 will be true and
correct as of the Closing.
(a) Organization of Buyer. Buyer is a corporation duly organized and
in good standing under the laws of the State of Delaware.
(b) Authority; No Conflict; Required Filings and Consents.
(i) Buyer has all requisite power and authority to enter into
this Agreement and to perform its obligations under this Agreement. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated by this Agreement have been duly authorized by all
necessary corporate action on the part of Buyer. This Agreement has been duly
executed and delivered by Buyer. This Agreement constitutes a valid and binding
obligation of Buyer, enforceable against Buyer in accordance with its terms,
except to the extent that such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or other laws affecting the enforcement
of creditors' rights generally or by general equitable principles.
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(ii) The execution and delivery by Buyer of this Agreement and
the consummation of the transactions contemplated by this Agreement will not (A)
conflict with, or result in any violation or breach of any provision of the
Certificate of Incorporation or Bylaws of Buyer, (B) result in any violation or
breach of, or constitute (with or without notice or lapse of time, or both) a
default (or give rise to a right of termination, cancellation or acceleration of
any obligation or loss of any material benefit) under any of the terms,
conditions or provisions of any contract or other agreement to which Buyer is a
party or by which any of Buyer's properties or assets may be bound, or (C)
conflict with or violate any permit, license, judgment, order, statute,
ordinance, rule or regulation applicable to Buyer or Buyer's properties or
assets.
(iii) No consent or approval of any Governmental Entity is
required by or with respect to Buyer in connection with the execution and
delivery of this Agreement or the consummation of the transactions contemplated
hereby or thereby, other than those that may be required under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act")
and applicable North Carolina "blue sky" securities law.
(c) Accredited Investor. Buyer is an "Accredited Investor" as such
term is defined in Rule 501(a) promulgated under the Securities Act of 1933 as
amended (the "Securities Act"). Buyer represents and warrants that it has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of its investment in the Shares. Buyer has had
the opportunity to obtain from Sellers and the Company all information, to the
extent possessed by Sellers and the Company or reasonably obtainable by them,
necessary to evaluate the merits and risks of an investment in the Shares, and
has concluded, based on such information and other information previously known
to it, to invest in such securities pursuant to the terms of this Agreement.
(d) Absence of Market. Buyer acknowledges that the Shares lack
liquidity as compared with other securities investments since there is not, and
there is not expected to be, any market therefor, and that the sale or transfer
of the Shares must comply with the provisions of applicable federal and state
securities laws. Buyer acknowledges that it must bear the economic risk of its
investment in the Shares for an indefinite period of time since none of such
securities has been registered under the Securities Act and therefore cannot be
sold unless such securities are subsequently registered or an exemption from
registration is available.
(e) Investment Purposes. Buyer hereby represents and warrants that
it is acquiring the Shares for investment purposes only, and not with a view to,
or for resale in connection with, any distribution thereof within the meaning of
the Securities Act. Buyer has no agreement or other arrangement with any person
to sell, transfer or pledge any part of the Shares and has no plans to enter
into any such agreement or arrangement.
(f) Restricted Securities. Buyer acknowledges that Sellers are
transferring the Shares to it without registration under the Securities Act.
Buyer further acknowledges that Sellers and representatives of the Company have
advised Buyer that no state or federal agency or instrumentality has made any
finding or determination as to the investment in such securities, nor has any
state or federal agency or instrumentality made any recommendation with respect
to any purchase or investment in such securities.
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Section 3.2 Representations and Warranties of Marketing Specialists.
Marketing Specialists represents and warrants that the statements contained in
this Section 3.2 will be true and correct as of the Closing.
(a) Organization of Marketing Specialists. Marketing Specialists is
(i) a corporation duly organized and in good standing under the laws of the
State of Delaware and (ii) duly qualified to do business as a foreign
corporation and in good standing in each jurisdiction in which the character of
the properties and assets now owned or leased by it or the nature of the
business transacted by it requires it to be so qualified, except where the
failure to be so qualified, individually or in the aggregate, would not have a
Material Adverse Effect on Marketing Specialists or the consummation of the
transactions contemplated hereby. Marketing Specialists was organized as of
October 7, 1997 to, among other things, own all of the capital stock of MSSC.
(b) Significant Subsidiaries. The following direct and indirect
wholly-owned subsidiaries of Marketing Specialists are the only such
subsidiaries that accounted for more than 10% of Marketing Specialists'
consolidated revenues, as set forth in the Marketing Specialists Mid-Year
Financial Statements (as defined herein): Marketing Specialists Sales Company, a
Texas corporation ("MSSC"), and Bromar, Inc., a California corporation
("Bromar"). MSSC is a direct wholly-owned subsidiary of Marketing Specialists,
and Bromar and Tower Marketing Company, Inc., a Texas corporation ("Tower"), are
direct wholly-owned subsidiaries of MSSC. MSSC and Bromar, together with Tower,
are termed herein the "Key Subsidiaries". Each of the Key Subsidiaries is (a) a
corporation duly organized, validly existing and in good standing under the laws
of the state of its incorporation and (b) duly qualified to do business as a
foreign corporation and in good standing in each jurisdiction in which the
character of the properties and assets now owned or leased by it or the nature
of the business transacted by it requires it to be so qualified, except where
the failure to be so qualified, individually or in the aggregate, would not have
a Material Adverse Effect on Marketing Specialists or the consummation of the
transactions contemplated hereby. Each Key Subsidiary has the corporate power
and authority to carry on its business as now being conducted and to own and
lease its properties.
(c) Authority; No Conflict; Required Filings and Consents.
(i) Marketing Specialists has all requisite power and
authority to enter into this Agreement and to perform its obligations under this
Agreement. The execution and delivery of this Agreement and the consummation of
the transactions contemplated by this Agreement have been duly authorized by all
necessary corporate action on the part of Marketing Specialists. This Agreement
has been duly executed and delivered by Marketing Specialists. This Agreement
constitutes a valid and binding obligation of Marketing Specialists, enforceable
against Marketing Specialists in accordance with its terms, except to the extent
that such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other laws affecting the enforcement of creditors' rights
generally or by general equitable principles.
(ii) The execution and delivery by Marketing Specialists of
this Agreement and the consummation of the transactions contemplated by this
Agreement will not (A) conflict with, or result in any violation or breach of
any provision of the Certificate of Incorporation or Bylaws of Marketing
Specialists, (B) result in any violation or breach of, or constitute (with or
without notice or lapse of time, or both) a default (or give rise to a right of
termination, cancellation or acceleration
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of any obligation or loss of any material benefit) under any of the terms,
conditions or provisions of any contract or other agreement to which Marketing
Specialists is a party or by which any of Marketing Specialists's properties or
assets may be bound, or (C) conflict with or violate any permit, license,
judgment, order, statute, ordinance, rule or regulation applicable to Marketing
Specialists or Marketing Specialists' properties or assets.
(iii) No consent or approval of any Governmental Entity is
required by or with respect to Marketing Specialists in connection with the
execution and delivery of this Agreement or the consummation of the transactions
contemplated by this Agreement, other than those that may be required under the
HSR Act and applicable North Carolina "blue sky" securities law.
(iv) Attached hereto as Appendix I is a true and complete copy
of the audited consolidated balance sheets of MSSC as of December 31, 1996 and
1995, together with the related consolidated statement of operations,
shareholders' equity (deficit) and cash flow for the year ended (collectively,
the "Marketing Specialists Financial Statements"). The Marketing Specialists
Financial Statements are accurate and correct in all material respects and
fairly present the consolidated financial position and the results of operations
of MSSC for the year then ended in conformity with generally accepted accounting
principles consistently applied.
(v) Attached hereto as Appendix II is a true and complete copy
of the consolidated balance sheets of MSSC as of June 30, 1997 and 1996,
together with the related consolidated statement of operations, shareholders'
equity (deficit) and cash flow for the six months then ended, as reviewed by
Ernst & Young LLP (collectively, the "Marketing Specialists Mid-Year Financial
Statements"). The Marketing Specialists Mid-Year Financial Statements are
accurate and correct in all material respects and fairly present the
consolidated financial position and the results of operations of MSSC for the
six months then ended in conformity with generally accepted accounting
principles consistently applied (except that the Marketing Specialists Mid-Year
Financial Statements do not include notes or normal year-end adjustments). MSSC
has suffered no net Material Adverse Effect in its financial condition since
June 30, 1997.
Section 3.3 Disclosure. Buyer and Marketing Specialists jointly represent
and warrant to Sellers that there is no information contained in this Agreement
(whether in this Article III, any other portion of this Agreement, the
Appendices, the Exhibits or any other documents or certificates delivered
pursuant to this Agreement) pertaining to Buyer or Marketing Specialists that,
to the best knowledge of Buyer and Marketing Specialists, contains an untrue
statement of material fact or omits to state any material fact required to be
stated in order to make the statements made herein and therein not materially
misleading.
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ARTICLE IV
NO PUBLICITY; CONFIDENTIALITY
Section 4.1 No Publicity; Confidentiality. Without the consent of the
other parties, which consent may be granted by Buyer on its own and on Marketing
Specialists's behalf, Xxxx Xxxxxxxxxx on behalf of the Management Shareholders,
and the Trustee on behalf of ESOP, none of the parties shall reveal the
existence of or contents of this Agreement or make any internal or public
announcements except to their respective professional advisors or as otherwise
required by applicable law. All confidential material or information delivered
as part of any due diligence performed by the parties shall be held in
accordance with the parties' mutual letters regarding confidentiality executed
in October 1997. Nothing within this Section 4.1 shall be construed to prevent
the Trustee of the ESOP to make such disclosures to governmental agencies or
participants and beneficiaries which it deems necessary to fulfill its fiduciary
obligations under applicable Law.
ARTICLE V
COVENANTS OF PARTIES
Section 5.1 Pre-Closing Covenants. From the date hereof until the
occurrence of the earlier of (i) the Closing or (ii) termination of this
Agreement pursuant to Article VII hereof, Sellers agree that they will, upon
obtaining knowledge of any of the following, promptly notify Buyer and Marketing
Specialists of:
(a) any notice or other communication from any person alleging that
the consent of such person is or may be required in connection with the
transactions contemplated under this Agreement;
(b) any notice or other communication from any Governmental Entity
in connection with the transactions contemplated under this Agreement; and
(c) any actions, suits, claims, investigations or other judicial
proceedings commenced or threatened against Sellers or the Company which, if
pending on the date of this Agreement, would have been required to have been
disclosed pursuant to Article II or which relate to the consummation of the
transactions contemplated under this Agreement.
Section 5.2 Transfer of Shares. Sellers will take all necessary steps and
proceedings as approved by counsel for Buyer and Marketing Specialists to permit
the Shares to be duly and properly transferred to Buyer in accordance with
Article I hereof. Sellers will pay any and all transfer taxes required in
connection therewith.
Section 5.3 Exclusivity. Sellers will not, directly or indirectly, (i)
take any action to solicit, initiate or encourage the making of any Acquisition
Proposal (as defined below) or (ii) engage in negotiations with, or disclose any
non-public information relating to the Company to, any person or entity that may
be considering making, or has made, an Acquisition Proposal. None of Sellers is
presently considering any Acquisition Proposal other than Buyer's. Sellers will
immediately notify Buyer and Marketing Specialists orally and in writing after
receipt of any Acquisition Proposal or any
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request for non-public information relating to the Company or for access to the
properties, books or records of the Company by any person or entity that may be
considering making, or has made, an Acquisition Proposal, and keep Buyer and
Marketing Specialists informed of any such Acquisition Proposal or request. As
used in this Agreement, the term "Acquisition Proposal" means any offer or
proposal for, or any indication of interest in, a merger or other business
combination involving the Company or the acquisition of a substantial equity
interest in, or a substantial portion of the assets of, the Company, other than
the transactions contemplated hereby.
Section 5.4 ESOP Elections. None of the individual Sellers shall at any
time elect to receive any stock of the Company in connection with the
distribution or rollover of their ESOP account balance.
ARTICLE VI
CONDITIONS TO CLOSING
Section 6.1 Buyer's and Marketing Specialists's Conditions to Closing. The
obligations of Buyer and Marketing Specialists hereunder are subject to
fulfillment or satisfaction, on and as of the Closing, of each of the following
conditions (any one or more of which may be waived by Buyer and Marketing
Specialists, but only in a writing signed by Buyer and Marketing Specialists):
(a) Accuracy of Representations and Warranties. The representations
and warranties of Sellers contained in Article II shall be true and accurate in
all respects on and as of the Closing with the same force and effect as if they
had been made on the Closing, and Sellers shall have provided Buyer and
Marketing Specialists with a certificate executed by Sellers, dated as of the
Closing, to such effect.
(b) Covenants. Sellers shall have performed and complied with all of
their covenants contained in Article V (and elsewhere in this Agreement) in all
respects on or before the Closing, and Buyer and Marketing Specialists shall
receive a certificate to such effect signed by Sellers.
(c) Consents. All written consents, approvals, assignments, waivers
or authorizations, including those from any Governmental Entity, that are
required as a result of the transactions contemplated by this Agreement shall
have been obtained.
(d) Transfer of Shares. All necessary steps and corporate
proceedings shall have been taken to permit the Shares to be duly and properly
transferred to Buyer or its respective nominee(s). All of the Shares shall have
been endorsed over to Buyer or be accompanied by stock powers that provide for
such transfer.
(e) Opinion of Sellers' Counsel. Sellers shall have delivered to
Buyer and Marketing Specialists at the Closing an opinion of Xxxxxx Xxxxxxx &
Meschan, P.A., and an opinion of Xxxxx & Xxxxxxx, P.A., each in form reasonably
satisfactory to counsel for Buyer and Marketing Specialists, as to those matters
set forth in Exhibits "C" and "D", respectively, hereto.
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(f) Non-Foreign Status. At or prior to Closing, each Seller shall
have delivered to Buyer and Marketing Specialists a statement certifying that he
or it is not a foreign person, which statement shall comply with the
requirements of Treasury regulation Section 1.1445-2(b).
(g) Purchase of Remaining Company Shares. Buyer shall have
purchased, and Xxxx Xxxxx ("Xxxxx") and Xxxxxx Xxxxxxxx ("Xxxxxxxx") shall have
sold and transferred to Buyer, all shares of the Company's Common Stock (other
than the Shares purchased pursuant to the transactions contemplated in this
Agreement) pursuant to the terms and conditions of that certain Stock Purchase
Agreement dated as of the date hereof by and among Buyer, Marketing Specialists,
Xxxxx, Xxxxxxxx and the Company.
(h) Non-Compete Agreements. Each of the individual Sellers shall
have executed a Non-Compete Agreement (which shall include provisions for
continuation of medical benefits, at the cost of such Sellers, after termination
of employment) mutually acceptable to Sellers and Marketing Specialists.
(i) Other Matters. All actions required to be taken by Sellers in
connection with consummation of the transactions contemplated hereby and all
certificates, opinions, instruments, and other documents required to effect the
transactions contemplated hereby will be reasonably satisfactory in form and
substance to counsel to Buyer and Marketing Specialists.
Section 6.2 Sellers' Conditions to Closing. The obligations of Sellers
hereunder are subject to fulfillment or satisfaction, on and as of the Closing,
of each of the following conditions (any one or more of which may be waived by
Sellers, but only in a writing signed by Sellers):
(a) Accuracy of Representations and Warranties. The representations
and warranties of Buyer and Marketing Specialists contained in Article III shall
be accurate in all respects on and as of the Closing with the same force and
effect as if they had been made on the Closing, and Buyer and Marketing
Specialists shall have provided Sellers with a certificate executed by Buyer and
Marketing Specialists, respectively, dated as of the Closing, to such effect.
(b) Covenants and Agreements. Buyer and Marketing Specialists shall
have performed and complied with each of their respective covenants hereunder in
all respects through the Closing, and Sellers shall receive a certificate to
such effect signed by the President of Buyer and the President of Marketing
Specialists, respectively.
(c) Opinion of Buyer's and Marketing Specialists's Counsel. Buyer
and Marketing Specialists shall have delivered to Seller at the Closing an
opinion of Buyer's counsel and Marketing Specialists's counsel, respectively, in
form reasonably satisfactory to counsel for Seller, as to those matters set
forth in Exhibit "D" hereto.
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ARTICLE VII
TERMINATION
Section 7.1 Termination. This Agreement may be terminated at any time
prior to the Closing:
(a) by mutual agreement of Sellers, Buyer and Marketing Specialists;
(b) by Buyer or Marketing Specialists, on or after February 28,
1998, if any of the conditions provided in Section 6.1 hereof of this Agreement
have not been met or, to the extent permitted by applicable law, have not been
waived in writing by Buyer or Marketing Specialists prior to such date; or
(c) by Sellers, on or after February 28, 1998, if any of the
conditions provided in Section 6.2 hereof have not been met or, to the extent
permitted by applicable law, have not been waived in writing by Sellers prior to
such date.
Section 7.2 Procedure Upon Termination. In the event of termination by
Sellers, Buyer or Marketing Specialists pursuant to Section 7.1 hereof, written
notice thereof shall promptly be given to the other parties and the transactions
contemplated by this Agreement shall be terminated, without further action by
any party. If the transactions contemplated by this Agreement are terminated as
provided herein:
(a) each of Sellers, Buyer and Marketing Specialists shall return
all documents, work papers and other material of any other party relating to the
transactions contemplated hereby, whether so obtained before or after the
execution hereof, to the party furnishing the same; and
(b) all confidential information received by Sellers, Buyer or
Marketing Specialists with respect to the business of any other party or its
subsidiaries or affiliates shall be treated in accordance with Section 4.1
hereof, and Section 4.1 hereof shall remain in full force and effect
notwithstanding the termination of this Agreement.
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
Section 8.1 Survival of Representations and Warranties of Sellers. The
representations, warranties, covenants and agreements of Sellers shall survive
the Closing without regard to any investigations made by Buyer and shall
continue in full force and effect forever.
Section 8.2 Survival of Representations and Warranties of Buyer and
Marketing Specialists. The representations, warranties, covenants and agreements
of Buyer and Marketing Specialists shall survive the Closing without regard to
any investigations made by Sellers and shall continue in full force and effect
forever (except for the representations and warranties set forth in Sections
3.2(c)(iv) and (v) hereof, which shall survive until the third anniversary of
the Closing).
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ARTICLE IX
GENERAL PROVISIONS
Section 9.1 Time of Essence. Time shall be of the essence under this
Agreement.
Section 9.2 Notice. Any notice, direction or other instrument required or
permitted to be given hereunder shall be in writing and may be given by mailing
the same, postage prepaid, or delivering the same addressed to the party or
parties to receive same at their respective addresses set forth immediately
below or at such other address as is duly notified in writing to each party
hereto in accordance with this Section 9.2. Any notice, direction or other
instrument aforesaid if delivered shall be deemed to have been given or made on
the date of which it was delivered, or if mailed shall be deemed to have been
given and received on the fifth business day following the date on which it was
mailed.
NOTIFICATION ADDRESSES:
if to Buyer or Marketing Specialists:
0000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxx
with a copy to:
J. Xxxxxxx Xxxxxxxx
Xxxxxxx & Xxxxx L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
if to Sellers:
[ ]
if to ESOP:
[ ]
with a copy to:
Xxxxxx X. Xxxxx
Xxxxx & Xxxxxxx, P.A.
Cameron Xxxxx Building, Suite 911
301 South XxXxxxxx Xxxxxx
-00-
00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
and
Xxxxxxx X. Xxxxxx, Xx.
Xxxxxx Xxxxxxx & Meschan, P.A.
000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Section 9.3 Binding Upon Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the respective parties hereto and
their respective heirs, executors, administrators, successors and/or assigns.
This Agreement may not be assigned by Sellers without the written consent of
Buyer and Marketing Specialists.
Section 9.4 Counterparts. This Agreement may be signed by the parties in
counterparts, each of which so signed shall be deemed to be an original, and
such counterparts together shall constitute one and the same instrument.
Section 9.5 Entire Agreement. Except as otherwise specifically set forth
herein, this Agreement, the Exhibits and the Appendix hereto constitute the
complete and exclusive agreement between Buyer, Marketing Specialists and
Sellers. This Agreement replaces and supersedes all prior agreements by and
between Buyer, Marketing Specialists and Sellers (other than the Employment
Agreements dated as of December __, 1997 between the Company and certain of the
Management Shareholders). This Agreement supersedes all prior written and oral
statements regarding the subject matter hereof.
Section 9.6 No Third-Party Beneficiaries. This Agreement is made solely
and specifically among and for the benefit of the parties hereto and their
respective successors and assigns. The provisions of this Agreement are intended
only for Sellers, Buyer and Marketing Specialists. This Agreement is not
intended for the benefit of any creditor and does not grant any rights to or
confer any benefits on any creditor or any other person.
Section 9.7 Headings. All headings herein are inserted only for
convenience and ease of reference and are not to be considered in the
construction or interpretation of any provision of this Agreement.
Section 9.8 Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under the present and future laws effective
during the term of this Agreement, such provision will be fully severable; the
Agreement will be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part of the Agreement, and the
remaining provisions of the Agreement will remain in full force and effect and
will not be affected by the illegal, invalid, or unenforceable provision or by
its severance from the Agreement. Furthermore, in lieu of
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such illegal, invalid or unenforceable provision, there will be added
automatically as part of the Agreement a legal, valid, and enforceable provision
as similar as possible to the severed provision.
Section 9.9 Additional Documents. Sellers, Buyer and Marketing Specialists
agree to execute and deliver such additional documents and instruments and to
perform such additional acts as may be necessary or appropriate to effectuate,
carry out and perform all of the terms, provisions and conditions of this
Agreement and the transaction contemplated hereby.
Section 9.10 Amendments and Waivers. No amendment of any provisions of
this Agreement shall be valid unless the same shall be in writing and signed by
each party hereto. No waiver by any party of any default, misrepresentation, or
breach of warranty or covenant hereunder, whether intentional or not, shall be
deemed to extend to any prior or subsequent default, misrepresentation, or
breach of warranty or covenant hereunder or affect in any way any rights arising
by virtue of any prior or subsequent such occurrence.
Section 9.11 Expenses, Taxes, Etc. Each of the parties hereto shall pay
all fees and expenses incurred by it or any of its affiliates in connection with
the transactions contemplated by this Agreement.
Section 9.12 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS,
WITHOUT REGARD TO ITS CONFLICTS OF LAW RULES.
Section 9.13 Commissions. No party hereto has employed any investment
banker, broker, finder or similar agent in connection with any transaction
contemplated by this Agreement.
Section 9.14 Definition of Knowledge. For the purpose of this Agreement,
the Exhibits and Appendices to this Agreement and the Disclosure Schedule, the
phrases "to the best knowledge" of any party and "known" and words of like
effect shall mean to the knowledge of such party, which knowledge shall also
include information existing in the records and files of such party.
Section 9.15 Definition of Material Adverse Effect. "Material Adverse
Effect" means, with respect to any party, any change, occurrence or effect
(direct or indirect) on the business, operations, properties (including tangible
properties), condition (financial or otherwise), assets, prospects, obligations
or liabilities (whether absolute, contingent or otherwise and whether due or to
become due) of such party and its subsidiaries taken as a whole that reasonably
could be expected to exceed $20,000. "Material" or "materially" or words of like
effect shall refer to items capable of producing a monetary effect of at least
$20,000 on the business, operations, properties (including intangible
properties), condition (financial or otherwise), assets, prospects, obligations
or liabilities (whether absolute, contingent or otherwise and whether due or to
become due) of the relevant party and its subsidiaries taken as a whole.
Notwithstanding the foregoing, the term "Material Adverse Effect", as used in
Section 3.2(b) and Section 3.2(c)(v) hereof, shall have a dollar threshold of
$500,000 and shall exclude the effects of the financing consummated by Marketing
Specialsists on the date of the Closing hereof.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have hereunto executed this
Agreement on the day and year first above written.
RICHMONT MARKETING SPECIALISTS INC.
By: /s/ Xxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxx X. Xxxx
----------------------------
Title: Chief Financial Officer
----------------------------
MSSC CAROLINA, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Name: Xxxx X. Xxxxxx
----------------------------
Title: Executive Vice President
----------------------------
ATLAS MARKETING COMPANY, INC.
EMPLOYEE STOCK OWNERSHIP PLAN
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxxx
----------------------------
Title: Plan Trustee
----------------------------
/s/ Xxxxx Xxxxxxxx
-------------------------------
XXXXX XXXXXXXX
/s/ Barney Deal
-------------------------------
BARNEY DEAL
/s/ Xxxx Xxxxx
-------------------------------
XXXX XXXXX
/s/ Xxxx Xxxxxxxxxx
-------------------------------
XXXX XXXXXXXXXX
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19
/s/ Xxxx Xxxxxxx
-------------------------------
XXXX XXXXXXX
/s/ Xxxxxx Xxxx
-------------------------------
XXXXXX XXXX
/s/ Xxxx Xxxxxx
-------------------------------
XXXX XXXXXX
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Exhibit "A"
Sellers and Allocation of Shares and Total Purchase Price
--------------------------------------------------------------------------------
Number Payable Principal Amount of
Shareholder of Shares at Closing Note
----------- --------- ---------- ----
--------------------------------------------------------------------------------
1. ESOP 674,304 11,159,731.20 N/A
--------------------------------------------------------------------------------
2. Xxxxx Xxxxxxxx 25,000 206,875.00 174,116.02
--------------------------------------------------------------------------------
3. Xxxx Xxxxxx 9,217 76,270.68 64,193.26
--------------------------------------------------------------------------------
4. Barney Deal 21,259 175,918.23 148,061.35
--------------------------------------------------------------------------------
5. Xxxxxx Xxxx 4,100 33,927.50 28,554.82
--------------------------------------------------------------------------------
6. Xxxx Xxxxx 834 6,901.35 5,808.29
--------------------------------------------------------------------------------
7. Xxxx Xxxxxxx 12,500 103,437.50 87,057.78
--------------------------------------------------------------------------------
8. Xxxx Xxxxxxxxxx 25,000 206,875.00 174,116.02
------- -------------- -----------
--------------------------------------------------------------------------------
TOTAL: 772,214 $11,969,936.46 $681,907.54
--------------------------------------------------------------------------------
