STOCK SALE AGREEMENT
BY AND BETWEEN
CALIFORNIA AND HAWAIIAN SUGAR COMPANY, INC.
("SELLER")
AND
CITICORP VENTURE CAPITAL, LTD.
("PURCHASER")
DATED AS OF AUGUST 5, 1998
TABLE OF CONTENTS
PAGE
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TERMS OF PURCHASE AND SALE......................................2
1.01. Sale of the Shares. ................................2
1.02. Purchase Price. ....................................3
1.03. Closing. ...........................................3
ARTICLE II REPRESENTATIONS AND WARRANTIES OF SELLER.............3
2.01. Organization; Good Standing. .......................3
2.02. Corporate Power and Authority; Effect of Agreement. 3
2.03. Capitalization. ....................................4
2.04. Governmental Authorization. ........................4
2.05. No Conflict. .......................................5
2.06. Title to Shares. ...................................5
2.07. Advisory Fees. .....................................5
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PURCHASER.........6
3.01. Organization; Good Standing. .......................6
3.02. Power and Authority; Effect of Agreement. ..........6
3.03. Governmental Authorization. ........................6
3.04. No Conflict. .......................................6
3.05. Investment Representations. ........................7
3.06. Tax Matters. .......................................7
3.07. Advisory Fees. .....................................8
ARTICLE IV COVENANTS OF THE PARTIES.............................8
4.01. Cooperation; Further Assurances. ...................8
4.02. Certain Rights and Obligations of the Parties. .....8
4.03. Certain Filings. ..................................10
4.04. Securityholders Agreement. ........................10
4.05. Confidentiality. ..................................10
4.06. Specific Performance. .............................12
ARTICLE V CONDITIONS TO CLOSING................................12
5.01. Conditions of All Parties. ........................12
5.02. Conditions to the Obligations of Seller. ..........13
5.03. Conditions to Obligations of Purchaser. ...........14
ARTICLE VI TERMINATION PRIOR TO CLOSING........................15
6.01. Termination. ......................................15
6.02. Effect on Obligations. ............................15
ARTICLE VII MISCELLANEOUS......................................16
7.01. Expenses. .........................................16
7.02. Notices. ..........................................16
7.03. Governing Law. ....................................18
7.04. Entire Agreement. .................................18
7.05. Counterparts; Effectiveness. ......................18
7.06. Amendments; No Waivers. ...........................19
7.07. Severability. .....................................19
7.08. Captions. .........................................20
7.09. Successors and Assigns. ...........................20
7.10. Restrictive Legend. ...............................20
STOCK SALE AGREEMENT
--------------------
This Stock Sale Agreement (this "Agreement"), dated as of August 5, 1998,
is by and between California and Hawaiian Sugar Company, Inc., a Hawaii
corporation (the "Seller"), and Citicorp Venture Capital, Ltd., a New York
corporation (the "Purchaser").
RECITALS
WHEREAS, Seller is a party to that certain Asset Purchase Agreement, dated
as of August 5, 1998, by and among, among others, Seller and Sugar Acquisition
Corporation, a Delaware corporation ("Newco") (the "Asset Purchase Agreement"),
pursuant to which Newco proposes to issue to Seller 1,000,000 shares of Newco
Common Stock (as defined in the Asset Purchase Agreement) or Newco Class B
Common Stock (as defined in the Asset Purchase Agreement), as applicable,
24,000 shares of Newco Junior Preferred Stock (as defined in the Asset Purchase
Agreement), and 25,000 shares of Newco Exchangeable Preferred Stock (as defined
in the Asset Purchase Agreement), as partial consideration for the transfer of
substantially all of the assets and business of Seller to Newco; and
WHEREAS, following the consummation of the transactions contemplated by
the Asset Purchase Agreement, Seller desires to sell to Purchaser, and
Purchaser desires to purchase from Seller, 600,000 shares of Newco Common Stock
or Newco Class B Common Stock, as applicable, and 14,400 shares of Newco Junior
Preferred Stock for the consideration set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements, and upon the terms and subject to the
conditions, hereinafter set forth, the parties hereby agree as follows:
DEFINITIONS
"Affiliate" means, with respect to any Person, any Person directly or
indirectly controlling, controlled by or under direct or indirect common
control with such other Person.
"Applicable Law" means, with respect to any Person, any domestic or
foreign, federal, state or local statute, law, ordinance, rule, administrative
interpretation, regulation, order, writ, injunction, judgment, decree or other
requirement of any Governmental Authority applicable to such Person or any of
its Affiliates or any of their respective properties, assets, officers,
directors, employees, consultants or agents (in connection with such officer's,
director's, employee's, consultant's or agent's activities on behalf of such
Person or any of its Affiliates).
"Governmental Authority" means any foreign, domestic, federal,
territorial, state or local governmental authority, quasi-governmental
authority, instrumentality, court, government or self-regulatory organization,
commission, tribunal or organization or any regulatory, administrative or other
agency, or any political or other subdivision, department or branch of any of
the foregoing.
"Material Adverse Effect" means a change in, or effect on, Seller that (A)
results in a material adverse effect on, or a material adverse change in, the
assets, operations, financial condition or results of operations of Newco
(excluding (i) adverse changes of an industry-wide impact or (ii) adverse
changes attributable to the execution of this Agreement and the publicity
attendant thereto) or (B) materially impairs or prohibits the ability of Seller
and Purchaser to consummate the transactions contemplated hereby.
"Person" means an individual, corporation, partnership, limited liability
company, association, trust, estate or other entity or organization, including
a Governmental Authority.
TERMS OF PURCHASE AND SALE
1.01. SALE OF THE SHARES. At the Closing (as defined in Section 1.03
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hereof), subject to the terms
and conditions set forth herein, Seller shall sell to Purchaser, and Purchaser
shall purchase from Seller, (i) an aggregate of 600,000 shares of Newco Common
Stock and Newco Class B Common Stock (which shall consist of all of the Newco
Class B Common Stock held by Seller (up to a maximum of 600,000 shares) and the
remainder which shall consist of Newco Common Stock) and (ii) 14,400 shares of
Newco Junior Preferred Stock (collectively, the "Shares").
1.02. PURCHASE PRICE. Subject to the terms and conditions of this
--------------
Agreement, in full payment of the purchase price for the Shares, Purchaser
shall pay to Seller $15,000,000 in cash (the "Purchase Price").
1.03. CLOSING.
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(a) The closing of the transactions contemplated hereby (the
"Closing") shall take place at the offices of Xxxxxx, Xxxx & Xxxxxxxx LLP, 000
Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, on the date on which the
last of the conditions to Closing set forth in Sections 5.01, 5.02 and 5.03
have been satisfied or waived by the party or parties entitled to waive the
same or such other date as to which Seller and Purchaser may agree (the
"Closing Date").
(b) At the Closing, subject to the terms and conditions set forth
herein, Seller shall deliver or cause to be delivered to Purchaser stock
certificates representing the Shares, duly endorsed in blank for transfer or
accompanied by duly executed stock powers assigning the Shares in blank. The
Shares shall bear legends giving notice of restrictions on transfer as set
forth in Section 7.10 hereof.
(c) At the Closing, subject to the terms and conditions set forth
herein, Purchaser shall pay and deliver to Seller the Purchase Price. The
Purchase Price shall be payable to Seller at the Closing by wire transfer in
immediately available funds to a bank account designated by Seller in writing.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser as follows:
2.01. ORGANIZATION; GOOD STANDING. Seller is duly organized, validly
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existing and in good standing under the laws of the state of its incorporation
or organization and has all requisite power and authority under such laws to
carry on its business as now conducted.
2.02. CORPORATE POWER AND AUTHORITY; EFFECT OF AGREEMENT. The execution,
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delivery and performance by Seller of this Agreement, and the consummation by
Seller of the transactions contemplated herein, including the sale of the
Shares, have been duly authorized by all necessary action on the part of
Seller. This Agreement has been duly and validly executed and delivered by
Seller and constitutes a valid and binding obligation of Seller, enforceable
against Seller in accordance with its terms, except to the extent that such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to creditors' rights generally and is
subject to general principles of equity.
2.03. CAPITALIZATION. As of the Closing, (i) the authorized capital
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stock of Newco shall consist solely of the Newco Common Stock, the Newco Class
B Common Stock, the Newco Junior Preferred Stock and the Newco Exchangeable
Preferred Stock in the amounts, and having the rights, preferences and
privileges, referred to in the Asset Purchase Agreement and (ii) other than the
shares of Newco Common Stock, Newco Class B, Newco Junior Preferred Stock and
Newco Exchangeable Preferred Stock to be issued pursuant to the Asset Purchase
Agreement, there shall be no outstanding securities, options, warrants, calls,
stock appreciation rights, profit sharing plans, phantom stock awards, rights,
commitments, agreements, arrangements or understandings of any kind, to which
Newco is a party or by which it is bound, obligating Newco to issue, deliver or
sell, or cause to be issued, delivered or sold, additional shares of capital
stock or other voting securities of Newco, or obligating Newco to issue, grant,
extend or enter into any such security, option, warrant, call, right,
commitment, agreement, arrangement or undertaking or any agreements or
instruments having a similar economic effect.
2.04. GOVERNMENTAL AUTHORIZATION. The execution, delivery and
--------------------------
performance by Seller of this Agreement require no action by, consent or
approval of, or filing with, any Governmental Authority other than
(a) compliance with any applicable requirements of the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended (the "HSR Act") and federal and
state securities laws or (b) any actions, consents, approvals or filings
otherwise expressly referred to in this Agreement.
2.05. NO CONFLICT. Except as disclosed on Schedule 3.04(c) to the Asset
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Purchase Agreement, the execution, delivery and performance by Seller of this
Agreement and the consummation by Seller of the transactions contemplated
herein will not, with or without the giving of notice or the lapse of time, or
both, violate, conflict with or constitute a default under (a) any provision of
law, rule or regulation to which Seller is subject, (b) any order, judgment or
decree applicable to Seller, (c) any provision of the charter documents of
Seller or (d) any indenture, agreement or other instrument by which Seller is
bound.
2.06. TITLE TO SHARES.
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(a) As of the Closing, Seller will own and will have good and
marketable title to, and sole record and legal ownership of, the Shares, free
and clear of any and all liens, security interests, pledges, mortgages,
charges, limitations, claims, restrictions, rights of first refusal, rights of
first offer, rights of first negotiation or other encumbrances of any kind or
nature whatsoever (collectively, "Encumbrances").
(b) Upon consummation of the Closing, without exception, Purchaser
will acquire from Seller legal and beneficial ownership of, and good and
marketable title to the Shares to be sold to Purchaser by Seller, free and
clear of all Encumbrances other than those provided for in the Securityholders
Agreement (as defined below).
2.07. ADVISORY FEES. Except for Xxxxxxx, Sachs & Co., PaineWebber
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Incorporated and Cybus Capital Markets, LLC, there is no investment banker,
broker, finder or other intermediary or advisor that has been retained by or
is authorized to act on behalf of Seller who might be entitled to any fee,
commission or reimbursement of expenses upon consummation of the transactions
contemplated by this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller as follows:
3.01. ORGANIZATION; GOOD STANDING. Purchaser is duly organized, validly
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existing and in good standing under the laws of the state of its incorporation
or organization and has all requisite power and authority under such laws to
carry on its business as now conducted.
3.02. POWER AND AUTHORITY; EFFECT OF AGREEMENT. The purchase of the
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Shares, the payment and delivery of the Purchase Price, the execution, delivery
and performance by Purchaser of this Agreement and the consummation by
Purchaser of the transactions contemplated herein have been duly authorized by
all necessary action on the part of Purchaser. This Agreement has been duly
and validly executed and delivered by Purchaser and constitutes a valid and
binding obligation of Purchaser, enforceable against Purchaser in accordance
with its terms, except to the extent that such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to creditors' rights generally and is subject to general principles of
equity.
3.03. GOVERNMENTAL AUTHORIZATION. The execution, delivery and
--------------------------
performance by the Purchaser of this Agreement require no action by, consent or
approval of, or filing with, any Governmental Authority or any other Person
other than (i) compliance with any applicable requirements of the HSR Act and
federal and state securities laws or (ii) any actions, consents, approvals or
filings otherwise expressly referred to in this Agreement.
3.04. NO CONFLICT. The execution, delivery and performance by
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Purchaser of this Agreement and the consummation by Purchaser of the trans-
actions contemplated herein will not, with or without the giving of notice or
the lapse of time, or both, violate, conflict with or constitute a default
under (a) any provision of law, rule or regulation to which Purchaser is
subject, (b) any order, judgment or decree applicable to Purchaser, (c) any
provision of the charter documents of Purchaser or (d) any indenture, agreement
or other instrument by which Purchaser is bound.
3.05. INVESTMENT REPRESENTATIONS.
--------------------------
(a) The Shares will be acquired by Purchaser for its own account,
not as a nominee or agent, and not with a view to or in connection with the
sale or distribution of any part thereof, other than pursuant to a valid
exemption from the registration requirements of the Securities Act of 1933 (the
"Securities Act").
(b) Purchaser understands that the Shares will not be registered
under the Securities Act on the ground that the sale of the Shares provided for
in this Agreement is exempt from registration under the Securities Act and that
the reliance of Seller on such exemption is predicated in part on Purchaser's
representations set forth in this Agreement.
(c) Purchaser acknowledges that it is able to fend for itself in
the transactions contemplated by this Agreement and has the ability to bear the
economic risks of its investment pursuant to this Agreement.
(d) Purchaser understands that the Shares being purchased
hereunder are restricted securities within the meaning of Rule 144 under the
Securities Act and that the Shares are not registered and must be held
indefinitely unless they are subsequently registered or an exemption from such
registration is available.
3.06. TAX MATTERS. Neither Purchaser nor any direct or indirect
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transferee of the Shares shall at any time transfer cash or other property to
Newco in a manner that would cause Purchaser or such transferee to be treated
as having transferred property to Newco for purposes of applying Section 351 of
the Internal Revenue Code of 1986, as amended, to the transactions contemplated
hereby and by the Asset Purchase Agreement.
3.07. ADVISORY FEES. Except for Xxxxxxx, Xxxxx & Co., PaineWebber
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Incorporated and Cybus Capital Markets LLC, there is no investment banker,
broker, finder or other intermediary or advisor that has been retained by or is
authorized to act on behalf of Purchaser who might be entitled to any fee,
commission or reimbursement of expenses upon consummation of the transactions
contemplated by this Agreement.
ARTICLE IV
COVENANTS OF THE PARTIES
4.01. COOPERATION; FURTHER ASSURANCES. The parties hereto will use all
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commercially reasonable efforts, and will cooperate with each other, to secure
all necessary consents, approvals, authorizations, exemptions and waivers from
third parties as shall be required in order to comply with Applicable Laws and
to effectuate the transactions contemplated hereby, and will otherwise use all
reasonable efforts to cause the consummation of such transactions in
accordance with the terms and conditions hereof. At any time or from time to
time after the Closing, at the request of Seller or Purchaser, the parties
shall execute and deliver any further instruments or documents and take all
such further action as may be reasonably necessary in order to evidence or
otherwise facilitate the consummation of the transactions contemplated hereby.
4.02. CERTAIN RIGHTS AND OBLIGATIONS OF THE PARTIES.
---------------------------------------------
(a) Seller hereby agrees that Purchaser is entitled to rely on the
representations and warranties made to Seller by Newco in Article IV of the
Asset Purchase Agreement; and, that, in connection therewith, Purchaser, in its
capacity as a purchaser of the Shares, shall have all of the rights and
remedies that Seller shall have against Newco pursuant to Article IX of the
Asset Purchase Agreement with respect to any breach of any representation or
warranty by Newco, and Purchaser shall be entitled to exercise Seller's rights
and remedies against Newco. In addition to the foregoing, Seller agrees and
acknowledges that Purchaser shall have the right, on behalf of and for the
benefit of Newco, to enforce the obligations of Seller to Newco under the Asset
Purchase Agreement on the terms and conditions set forth in this Section 4.02.
(b) Seller agrees and acknowledges that Purchaser shall be
entitled, on behalf of and for the benefit of Newco, (i) to enforce any and all
covenants and agreements of Seller contained in the Asset Purchase Agreement,
(ii) from and after the Closing Date, to make any determination as to whether
Newco should seek indemnification pursuant to Article IX of the Asset Purchase
Agreement and, as appropriate, to direct Newco to pursue such indemnification
and (iii) to make any and all other determinations on behalf of Newco with
respect to the rights (including rights pursuant to Sections 2.06, 2.07 and
6.07 of the Asset Purchase Agreement) and remedies of Newco under the Asset
Purchase Agreement. Purchaser agrees to exercise its rights on behalf of and
for the benefit of Newco in good faith and in a commercially reasonable manner.
Following the Closing, Seller shall cooperate with Purchaser as reasonably
required in order to enable Purchaser to assert such rights on behalf of Newco.
(c) Seller agrees that it shall not, without the prior written
consent of Purchaser, agree, cause to be made, or consent to any waiver,
amendment or modification of any of the terms of the Asset Purchase Agreement.
(d) In the event that the Closing occurs, Purchaser will have no
direct rights, remedies or recourse against Seller for any breach of any
representation, warranty or covenant of Seller contained in the Asset Purchase
Agreement, and Purchaser's sole remedy pursuant to this Section 4.02 and the
Asset Purchase Agreement for such breach shall be its right to direct the
activities of Newco, on behalf of and for the benefit of Newco, in its pursuit
of any claims or causes of action that it may have against Seller.
(e) Purchaser agrees with Seller that it will cooperate with
Seller and use its commercially reasonable efforts, prior to the consummation
of the transactions contemplated in the Asset Purchase Agreement and this
Agreement, to arrange for (i) the issuance and sale by Newco, in an offering
pursuant to Rule 144A of the Securities Act of 1933, as amended, of senior
subordinated notes having commercially reasonable terms, such offering to
result in net cash proceeds to Newco (after the payment of underwriting
discounts, commissions and offering expenses) of not less than $96,000,000 and
(ii) a revolving working capital credit facility for Newco pursuant to which
Newco will have not less than $40,000,000 of borrowing capacity as of the
Closing.
4.03. CERTAIN FILINGS. The parties hereto shall cooperate with one
---------------
another in determining whetherany action by or in respect of, or filing with,
any Governmental Authority ("Required Governmental Approvals") is required or
reasonably appropriate, or any action, consent, approval or waiver from any
party to any contract ("Required Contractual Consents") is required or
reasonably appropriate, in connection with the consummation of the transactions
contemplated by this Agreement. Subject to the terms and conditions of this
Agreement, in taking such actions or making any such filings, the parties
hereto shall furnish information required in connection therewith and seek
timely to obtain any such actions, consents, approvals or waivers. Without
limiting the foregoing, the parties hereto shall each promptly complete and
file all reports and forms, and respond to all requests or further requests
for additional information, if any, as may be required or authorized under the
HSR Act and federal and state securities laws.
4.04. SECURITYHOLDERS AGREEMENT. Simultaneously with the Closing, the
-------------------------
parties hereto shall execute a Securityholders Agreement containing the terms
set forth on Exhibit A and such other commercially reasonable terms as are
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satisfactory to each party hereto in their reasonable discretion.
4.05. CONFIDENTIALITY.
---------------
(a) The parties hereto will, and will cause their Affiliates and
representatives to, treat any data and information obtained with respect to any
of the other parties hereto or any of their Affiliates from any representative,
officer, director or employee of any of the other parties hereto, or from any
books or records of any of the other parties hereto in connection with this
Agreement or the Asset Purchase Agreement, confidentially and with commercially
reasonable care and discretion, and will not disclose any such information to
third parties; provided, however, that the foregoing shall not apply to
-------- -------
(i) information in the public domain or that becomes public through disclosure
by any party other than the party required by this Section 4.05 to treat the
information as confidential, or its Affiliates or representatives, so
long as such other party is not in breach of a confidentiality obligation,
(ii) information required to be disclosed by Applicable Law, (iii) information
required to be disclosed, on a confidential basis, whenever possible, to obtain
any Required Governmental Approvals or Required Contractual Consents; or
(iv) any information that is disclosed, on a confidential basis, whenever
possible, to any actual or prospective lenders or investors in connection with
financing the transactions contemplated by this Agreement or the Asset Purchase
Agreement.
(b) In the event that the Closing fails to take place and this
Agreement is terminated, each party hereto, upon the written request of any
other party hereto, will, and will cause its Affiliates and representatives to,
promptly deliver to the requesting party any and all documents or other
materials furnished by that party in connection with this Agreement or the
Asset Purchase Agreement without retaining any copy thereof and without using
any confidential information to solicit any customers of that party. In the
event of such request, all other documents, whether analyses, compilations or
studies, that contain or otherwise reflect the information so furnished shall
be destroyed or shall be returned, and it shall be confirmed in writing that
all such materials have been returned or destroyed. No failure or delay by any
party hereto in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any right,
power or privilege hereunder.
4.06. SPECIFIC PERFORMANCE. The parties hereto recognize and agree
--------------------
that in the event of a breach by any party hereto of Section 4.05, money
damages would not be an adequate remedy for such breach and, even if money
damages were adequate, it would be impossible to ascertain or measure with any
degree of accuracy the damages sustained therefrom. Accordingly, if there
should be a breach or threatened breach by any party hereto of provisions of
Section 4.05, each other party hereto shall be entitled without the requirement
of posting a bond or other security to an injunction restraining any breach
without showing or proving actual damage. Nothing in the preceding sentence
shall limit or otherwise affect any remedies otherwise available under
Applicable Law.
ARTICLE V
CONDITIONS TO CLOSING
5.01. CONDITIONS OF ALL PARTIES.
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(a) All Required Governmental Approvals for the transactions
contemplated by this Agreement shall have been obtained without the imposition
of any conditions that would have a Material Adverse Effect. All such Required
Governmental Approvals shall be in effect, and no actions, suits, hearings,
arbitrations or proceedings (public or private) (collectively, "Proceedings")
shall have been instituted or threatened by any Governmental Authority against
Seller or Purchaser (or any of their Affiliates) with respect thereto as to
which there is a material risk of a determination that would terminate the
effectiveness of, or otherwise materially and adversely modify the terms of,
any such Required Governmental Approval; all applicable waiting periods with
respect to such Required Governmental Approvals shall have expired; and all
conditions and requirements prescribed by Applicable Law or by such Required
Governmental Approvals to be satisfied on or prior to the Closing shall have
been satisfied allowing all such Required Governmental Approvals to be and to
remain in full force and effect assuming continued compliance with the terms
thereof after the Closing.
(b) The Required Contractual Consents shall have been obtained
without the imposition of any conditions that would have a Material Adverse
Effect. All such Required Contractual Consents shall be in full force and
effect and no Proceeding shall have been instituted or threatened with respect
thereto that, would have a Material Adverse Effect. All conditions and
requirements prescribed by any required Contractual Consent (or any such other
consent) to be satisfied on or prior to the Closing Date shall have been
satisfied in all material respects.
(c) The transactions contemplated by this Agreement and the
consummation of the Closing shall not violate any Applicable Law. No temporary
restraining order, preliminary or permanent injunction, cease and desist order
or other order issued by any court of competent jurisdiction or any competent
Governmental Authority or any other legal restraint or prohibition preventing
the consummation of the transactions contemplated hereby shall be in effect,
and there shall be no pending or threatened actions or proceedings by any
Governmental Authority (or determinations by any Governmental Authority) or by
any other Person challenging or in any manner seeking to restrict or prohibit
the consummation of the transactions contemplated hereby.
(d) Concurrently with the Closing, the parties shall have executed
a Securityholders Agreement containing the terms set forth on Exhibit A and
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such other commercially reasonable terms as are satisfactory to each party
hereto in their reasonable discretion.
(e) The parties to the Asset Purchase Agreement shall have
complied in all material respects with each of their agreements and covenants
contained therein to be performed on or prior to the Closing Date.
(f) The transactions contemplated under the Asset Purchase
Agreement shall have been consummated.
5.02. CONDITIONS TO THE OBLIGATIONS OF SELLER. Seller's obligation to
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sell the Shares shall be subject to the satisfaction or waiver of the following
conditions on or prior to the Closing Date:
(a) Purchaser shall have performed and satisfied in all material
respects its obligations hereunder required to be performed or satisfied by it
on or prior to the Closing Date. Seller shall have received a certificate
signed by a duly authorized executive officer of Purchaser to the foregoing
effect and to the effect that, to the knowledge of such executive officer, the
foregoing conditions have been satisfied.
(b) The representations and warranties of Purchaser contained in
this Agreement shall be true, complete and accurate in all material respects
at and as of the Closing Date, as if made at and as of the Closing Date.
Seller shall have received a certificate signed by a duly authorized executive
officer of Purchaser to the foregoing effect and to the effect that, to the
knowledge of such executive officer, the foregoing condition has been
satisfied.
(c) Seller shall have acquired the Shares from Newco pursuant to
the Asset Purchase Agreement.
(d) Purchaser shall have delivered to Seller the Purchase Price in
accordance with Article I hereof.
5.03. CONDITIONS TO OBLIGATIONS OF PURCHASER. The obligation of
--------------------------------------
Purchaser to purchase the Shares shall be subject to the satisfaction or waiver
of the following conditions on or prior to the Closing Date:
(a) Seller shall have performed and satisfied in all material
respects its obligations hereunder required to be performed or satisfied by it
on or prior to the Closing Date. Purchaser shall have received a certificate
signed by a duly authorized executive officer of Seller to the foregoing effect
and to the effect that, to the knowledge of such executive officer, the
foregoing conditions have been satisfied.
(b) The representations and warranties of Seller contained in this
Agreement shall be true, complete and accurate in all material respects at and
as of the Closing Date, as if made at and as of the Closing Date. Purchaser
shall have received a certificate signed by a duly authorized executive officer
of Seller to the foregoing effect and to the effect that, to the knowledge of
such executive officer, the foregoing condition has been satisfied.
(c) Seller shall have delivered for sale to Purchaser on or prior
to the Closing Date those stock certificates (and any necessary stock transfer
instruments) representing all Shares to be sold by Seller to Purchaser pursuant
to Article I hereof.
(d) All actions taken by Newco with respect to the performance of
its obligations, the enforcement or waiver of its rights under the Asset
Purchase Agreement, including without limitation, the terms and conditions of
all financing transactions entered into in connection with such transactions,
shall be satisfactory to the Purchaser.
ARTICLE VI
TERMINATION PRIOR TO CLOSING
6.01. TERMINATION. This Agreement may be terminated at any time prior to
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the Closing:
(a) By the mutual written consent of Seller and Purchaser; or
(b) By either Seller or Purchaser by written notice if the closing
of the transactions contemplated by the Asset Purchase Agreement has not been
consummated by October 15, 1998 (the "Outside Date"); provided, however, that
if, as of October 15, 1998, the California State Lands Commission has not
formally approved or disapproved of the assignment to Newco pursuant to the
Asset Purchase Agreement of those certain real property leases identified as
Items A(1) and (2) on Schedule 3.07(c) of the Disclosure Schedules attached to
the Asset Purchase Agreement and the failure to obtain such approval is the
only remaining condition to the closing of the transactions contemplated by the
Asset Purchase Agreement that has not been satisfied or waived as of such date,
then the Outside Date shall automatically be extended to November 15, 1998,
after which time either Seller or Purchaser may terminate this Agreement if the
closing pursuant to the Asset Purchase Agreement shall not have been
consummated.
6.02. EFFECT ON OBLIGATIONS. Termination of this Agreement pursuant to
---------------------
this Article VI shall terminate all rights and obligations of the parties
hereunder other than those contained in Section 4.02 hereof and this Section
6.02. In the event that the Asset Purchase Agreement is terminated pursuant to
Sections 10.01(b) or (c) of the Asset Purchase Agreement, Seller agrees and
acknowledges that Purchaser shall be entitled, in its own name and for its own
benefit, to pursue any and all claims, rights and causes of action of Newco
against Seller.
ARTICLE VII
MISCELLANEOUS
7.01. EXPENSES.
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(a) Except as otherwise provided herein, Purchaser and Seller
shall cause all costs, expenses, liabilities, taxes and other charges incurred
by Purchaser and Seller in connection with this Agreement and the transactions
contemplated hereby to be paid by Newco, including the reasonable fees and
expenses of investment banks, attorneys and other advisors.
(b) In the event that this Agreement is terminated and/or the
transactions contemplated hereby are not consummated, Seller shall be
responsible for all of its expenses (including any fees and expenses of
investment banks, attorneys and other advisors engaged by Seller) and Purchaser
shall be responsible for its expenses (including any fees and expenses of
investment banks, attorneys and other advisors engaged by Purchaser).
7.02. NOTICES. All notices, requests, demands, claims and other
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communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given (i) if
personally delivered, when so delivered, (ii) if mailed, five Business Days
after having been sent by registered or certified mail, return receipt
requested, postage prepaid and addressed to the intended recipient as set forth
below, (iii) if given by telex or telecopier, once such notice or other
communication is transmitted to the telex or telecopier number specified below
and the appropriate answer back or telephonic confirmation is received,
provided that such notice or other communication is promptly thereafter mailed
in accordance with the provisions of clause (ii) above or (iv) if sent through
an overnight delivery service in circumstances to which such service guarantees
next day delivery, the day following being so sent:
If to Seller:
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Alexander & Xxxxxxx, Inc.
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Telecopier: (000) 000-0000
with copies to:
---------------
Alexander & Xxxxxxx, Inc.
Xxxx Xxxxxx Xxx 0000
Xxxxxxxx, XX 00000
Attention: General Counsel
Telecopier: (000) 000-0000
Xxxxxxxx X. Xxxxxxx, Esq.
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 X. Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Telecopier: (000) 000-0000
If to Purchaser:
----------------
Xxxxx Xxxx
Citicorp Venture Capital, Ltd.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
with a copy to:
---------------
Xxxx Xxxxx, Esq.
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Any party may give any notice, request, demand, claim or other
communication hereunder using any other means (including ordinary mail or
electronic mail), but no such notice, request, demand, claim or other
communication shall be deemed to have been duly given unless and until it
actually is received by the individual for whom it is intended. Any party may
change the address to which notices, requests, demands, claims and other
communications hereunder are to be delivered by giving the other parties notice
in the manner herein set forth.
7.03. GOVERNING LAW. This Agreement shall be construed in accordance
-------------
with and governed by the internal laws (without reference to choice or conflict
of laws) of the State of California.
7.04. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
----------------
between the parties with respect to the subject matter hereof and supersedes
all prior agreements (including the Letter of Intent, dated May 5, 1998),
understandings and negotiations, both written and oral, between the parties
with respect to the subject matter of this Agreement. Neither this Agreement
nor any provision hereof is intended to confer upon any Person other than the
parties hereto any rights or remedies hereunder.
7.05. COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed in any
---------------------------
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have
received a counterpart hereof signed by the other parties hereto.
7.06. AMENDMENTS; NO WAIVERS.
----------------------
(a) Any provision of this Agreement may be amended or waived if,
and only if, such amendment or waiver is in writing and signed, in the case
of an amendment, by all parties hereto, or in the case of a waiver, by the
party against whom the waiver is to be effective.
(b) No waiver by a 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 occurrence. No failure or delay
by a party in exercising any right, power or privilege hereunder shall operate
as a waiver thereof nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. The rights and remedies herein provided shall be cumulative and
not exclusive of any rights or remedies provided by law.
7.07. SEVERABILITY. If any provision of this Agreement, or the appli-
------------
cation thereof to any Person, place or circumstance, shall be held by a court
of competent jurisdiction to be invalid, unenforceable or void, the remainder
of this Agreement and such provisions as applied to other Persons, places and
circumstances shall remain in full force and effect only if, after excluding
the portion deemed to be unenforceable, the remaining terms shall provide for
the consummation of the transactions contemplated hereby in substantially the
same manner as originally set forth at the later of the date this Agreement was
executed or last amended.
7.08. CAPTIONS. The captions herein are included for convenience of
--------
reference only and shall be ignored in the construction or interpretation
hereof. All references to an Article or Section include all subparts thereof.
7.09. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. No party hereto may assign either this Agreement or any of
its rights, interests or obligations hereunder without the prior written
approval of each other party, which approval shall not be unreasonably
withheld.
7.10. RESTRICTIVE LEGEND. The certificates representing the Shares will
------------------
bear the following legends giving notice of restrictions on transfer as
follows:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE
SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED
OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE
SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.
INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE
FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN
FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE ISSUER TO THE EFFECT
THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND
ANY APPLICABLE STATE SECURITIES LAWS.
IN WITNESS WHEREOF, Seller and Purchaser have caused this Agreement to be
executed and delivered by the undersigned duly authorized officers as of the
day and year first above written.
CALIFORNIA AND HAWAIIAN SUGAR COMPANY, INC., A
HAWAII CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
CITICORP VENTURE CAPITAL, LTD.,
A NEW YORK CORPORATION
By: /s/ Xxxxx Xxxx
-------------------------------------------
Name: Xxxxx Xxxx
Title: Vice President
