EXHIBIT 2.02
TECH INDUSTRIES U.K. LTD.
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is dated as of this 1st day of September,
2003, by and between (i) Portola Packaging, Inc., a Delaware corporation (the
"Buyer"), and (ii) Xxxxxxx Xxxx (the "Seller").
WHEREAS, the Seller owns all of the issued and outstanding shares of
capital stock (the "Stock") of Tech Industries U.K. Ltd., a Rhode Island
corporation (the "Company"); and
WHEREAS, the Seller desires to sell all of the Stock to the Buyer, and
the Buyer desires to purchase all of the Stock from the Seller, upon the terms
and subject to the conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein, the parties hereto agree as follows:
1. PURCHASE AND SALE OF STOCK.
1.1. Purchase and Sale. Subject to the terms and conditions set forth
in this Agreement, the Seller agrees to sell to the Buyer, and the Buyer agrees
to purchase from the Seller, at the Closing (as defined to in Section 2 hereof),
all of the Stock, in exchange for the payment of the Purchase Price (as defined
in Section 1.2 hereof).
1.2. Delivery of Purchase Price. At the Closing, the Buyer shall pay to
the Seller, as the purchase price for the Stock (the "Purchase Price"), an
amount equal to $116,000, subject to increase as provided in Section 3 hereof.
The payment of the Purchase Price shall be made to the Seller by wire transfer
of immediately available funds.
2. CLOSING.
2.1. Time and Place. The closing of the sale and purchase of the Stock
(the "Closing") shall be held at the offices of Xxxxxxx XxXxxxxxx LLP, 000
Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, at 10:00 a.m. on September 15, 2003, or
at such other time, date and place as the Buyer and the Seller may agree. The
date on which the Closing is actually held hereunder is referred to herein as
the "Closing Date."
2.2. Transactions at Closing. At the Closing, in addition to any other
instruments or documents referred to herein:
(a) The Seller shall deliver to the Buyer, free and clear
of any lien, claim or encumbrance, certificates representing the Stock, duly
endorsed in blank or with duly executed stock powers attached.
(b) The Buyer shall deliver the Purchase Price to the
Seller by wire transfer of immediately available funds.
3. ADJUSTMENT TO PURCHASE PRICE. At the Closing, the Seller shall
prepare and deliver to the Buyer a certificate signed by the President of the
Company certifying as to the amount of (a) cash (in pounds sterling) of the
Company on hand as of the Closing Date (the "Closing Date Cash"), and (b)
accounts receivable (in pounds sterling) outstanding as of the Closing Date (the
"Closing Date Receivables"). The aggregate amount of the Closing Date Cash and
the Closing Date Receivables shall increase the Purchase Price on a
dollar-for-dollar basis (by way of converting the Closing Date Cash and Closing
Date Receivables in pounds sterling into US dollars at the then applicable
exchange rate), and shall be paid by the Buyer to the Seller at the Closing.
4. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller hereby
represents and warrants to the Buyer as follows:
4.1. Organization; Authority. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Rhode Island. The Seller has delivered to the Buyer complete and correct copies
of the Company's charter documents and Bylaws and all amendments thereto. The
Company has all requisite power and authority to own or lease and operate its
properties and to carry on its business as such business is now conducted.
4.2. Right to Sell Stock; Approvals; Binding Effect. The Seller has all
requisite power and full legal right to enter into this Agreement, and to
perform all of his agreements and obligations hereunder. This Agreement has been
duly executed and delivered by the Seller and constitutes the legal, valid and
binding obligation of the Seller, enforceable in accordance with its terms,
except as the enforceability thereof may be limited by any applicable
bankruptcy, reorganization, insolvency or other laws affecting creditors' rights
generally or by general principles of equity.
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4.3. Non-Contravention. The execution and delivery by the Seller of
this Agreement, and the consummation by the Seller of the transactions
contemplated hereby, will not constitute a violation of, or be in conflict with,
constitute or create a default under, or result in the creation or imposition of
any lien upon any property of the Seller pursuant to (a) any agreement or
instrument to which the Seller is a party or by which the Seller or any of the
Seller's property is bound or to which the Seller or any of the Seller's
property is subject, or (ii) any statute, judgment, decree, order, regulation or
rule of any court or governmental authority to which the Seller is subject.
4.4. Governmental Consents. No consent, approval or authorization of,
or registration, qualification or filing with, any governmental agency or
authority is required for the execution and delivery by the Seller of this
Agreement or for the consummation by the Seller of the transactions contemplated
hereby.
4.5. Subsidiaries. The Company has no subsidiaries, and beneficially
owns or holds of record no shares or other securities of any class in the
capital of any corporations, and owns any legal and/or beneficial interests in
any partnerships, limited liability companies, business trusts or joint ventures
or in any other unincorporated trade or business enterprises.
4.6. Capitalization. The authorized capital stock of the Company
consists of 4,000 shares of common stock, no par value per share, 200 shares of
which are issued and outstanding on the date hereof and are owned of record by
the Seller. All of the Stock will be sold by the Seller to the Buyer pursuant
hereto and is validly issued and outstanding, fully paid and non-assessable.
There are no commitments for the purchase or sale of, and no options, warrants
or other rights to subscribe for or purchase, any shares of capital stock or
other securities of the Company.
4.7. Title to Stock, Liens. The Seller has, and as of the consummation
of the Closing the Buyer will have, sole record and beneficial ownership of all
of the Stock, free and clear of any mortgage, lien, pledge, charge, security
interest, encumbrance, title retention agreement, option, equity or other
adverse claim thereto.
4.8. Minute Books. The minute books of the Company made available to
the Buyer for inspection accurately record therein in all material respects all
actions taken by the Board of Directors and shareholders of the Company.
4.9. Broker. Except with respect to Edgeview Partners LLC, whose fees
in connection with the transactions contemplated hereby shall be the sole
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responsibility of the Seller, the Seller has not retained, utilized or been
represented by any broker, agent, finder or intermediary in connection with the
negotiation or consummation of the transactions contemplated by this Agreement.
5. REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer hereby
represents and warrants to the Seller as follows:
5.1. Organization; Authority. The Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
5.2. Corporate Approval; Binding Effect. The Buyer has all requisite
power and full legal right to enter into this Agreement, and to perform all of
the Buyer's agreements and obligations hereunder, in accordance with its terms.
The Buyer has obtained all necessary corporate or organizational authorizations
and approvals required for the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby. This Agreement has been
duly executed and delivered by the Buyer and constitutes the legal, valid and
binding obligation of the Buyer, enforceable against the Buyer in accordance
with its terms, except as enforceability thereof may be limited by any
applicable bankruptcy, reorganization, insolvency or other laws affecting
creditors' rights generally or by general principles of equity.
5.3. Non-Contravention. The execution and delivery by the Buyer of this
Agreement, and the consummation by the Buyer of the transactions contemplated
hereby, will not (a) violate or conflict with any provisions of the charter
documents or By-Laws or other constituent documents of the Buyer, each as
amended to date; or (b) constitute a violation of, or be in conflict with,
constitute or create a default under, or result in the creation or imposition of
any lien upon any property of the Buyer pursuant to (i) any agreement or
instrument to which the Buyer is a party or by which the Buyer or any of its
properties is bound, or to which the Buyer or any of its properties is subject,
or (ii) any statute, judgment, decree, order, regulation or rule of any court or
governmental authority to which the Buyer is subject.
5.4. Governmental Consents. No consent, approval or authorization of,
or registration, qualification or filing with, any governmental agency or
authority is required for the execution and delivery by the Buyer of this
Agreement or for the consummation by the Buyer of the transactions contemplated
hereby.
5.5. Broker. The Buyer has not retained, utilized or been represented
by any broker, agent, finder or other intermediary in connection with the
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negotiation or consummation of the transactions contemplated by this Agreement.
6. CONDUCT OF BUSINESS BY THE COMPANY PENDING CLOSING. The Seller
covenants and agrees that, from and after the date of this Agreement and until
the Closing, except as otherwise specifically consented to or approved by the
Buyer in writing:
6.1. Access. The Seller shall cause the Company to afford to the Buyer
and its authorized representatives full access during normal business hours,
upon reasonable advance notice from the Buyer and so long as such access does
not cause any disruption to the operation of the Company's business, to all
properties, books, records, contracts and documents of the Company, and a full
opportunity to make such reasonable investigations as they shall desire to make
of the Company, and the Seller shall furnish or cause to be furnished to the
Buyer and its authorized representatives all such information with respect to
the Company's business as the Buyer may reasonably request.
6.2. Carry on in Regular Course. The Seller shall cause the Company to
carry on its business diligently and substantially in the same manner consistent
with past practice, and not make or institute any unusual or novel methods of
manufacture, purchase, sale, lease, management, accounting or operation.
6.3. Dividends. The Company shall be permitted to distribute to the
Seller all cash and cash equivalents of the Company.
7. CONDITIONS PRECEDENT TO THE BUYER'S OBLIGATIONS. The obligation of
the Buyer to consummate the Closing shall be subject to the satisfaction at or
prior to the Closing of each of the following conditions (to the extent
noncompliance thereof is not waived in writing by the Buyer):
7.1. Representations and Warranties True at Closing. The
representations and warranties made by the Seller in or pursuant to this
Agreement shall be true and correct at and as of the Closing Date with the same
effect as though such representations and warranties had been made or given at
and as of the Closing Date.
7.2. Compliance with Agreements. The Seller shall have performed and
complied with all of his obligations under this Agreement to be performed or
complied with by him on or prior to the Closing Date.
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7.3. Certificate of Seller. The Seller shall have delivered to the
Buyer in writing, at and as of the Closing, a certificate duly executed by the
Seller, in form and substance reasonably satisfactory to the Buyer and its
counsel, to the effect that the conditions in each of Sections 7.1 and 7.2
hereof have been satisfied.
7.4. Resignations of Directors and Officers. All of the directors and
officers of the Company listed on Schedule 7.4 hereto shall have resigned their
positions with the Company, on or prior to the Closing Date, and prior thereto
shall have executed such appropriate documents with respect to the transfer or
establishment of bank accounts, signing authority, etc., as the Buyer shall have
reasonably requested.
7.5. Closing of Tech Purchase Agreement. The "Closing" under that
certain Stock Purchase Agreement, of even date herewith (the "Tech Purchase
Agreement"), by and among the Seller, Xxxxx X. Xxxxxx and Xxxxxxxx X.
Xxxxxxxxxxx, as trustees of The Xxxxxxx Xxxx 1988-1 Irrevocable Trust (GST
Exempt Share) and The Xxxxxxx Xxxx 1988-1 Irrevocable Trust (Non-GST Exempt
Share), and the Buyer, with respect to the purchase and sale of all of the
outstanding capital stock of Tech Industries, Inc., a Rhode Island corporation,
shall have occurred.
8. CONDITIONS PRECEDENT TO THE SELLER' OBLIGATIONS. The obligation of
the Seller to consummate the Closing shall be subject to the satisfaction, at or
prior to the Closing, of each of the following conditions (to the extent
noncompliance thereof is not waived in writing by the Seller):
8.1. Representations and Warranties True at Closing. The
representations and warranties made by the Buyer in this Agreement shall be true
and correct at and as of the Closing Date with the same effect as though such
representations and warranties had been made or given at and as of the Closing
Date.
8.2. Compliance with Agreements. The Buyer shall have performed and
complied with all of its obligations under this Agreement that are to be
performed or complied with by it at or prior to the Closing.
8.3. Certificate of Buyer. The Buyer shall have delivered to the Seller
in writing, at and as of the Closing, a certificate duly executed by the
President of the Buyer, in form and substance reasonably satisfactory to the
Seller and his counsel, to the effect that the conditions in each of Sections
8.1 and 8.2 hereof have been satisfied.
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8.4. Closing of Tech Purchase Agreement. The "Closing" under the Tech
Purchase Agreement shall have occurred.
9. LIMITATION ON LIABILITY. Notwithstanding anything to the contrary
set forth in this Agreement, the maximum liability of the Seller to the Buyer
under this Agreement with respect to any breach by the Seller of any
representation, warranty, covenant, obligation or undertaking of the Seller
under this Agreement, shall not exceed the Purchase Price (as it may be
increased pursuant to Section 3 hereof).
10. TERMINATION. This Agreement may be terminated by either the Buyer
or the Seller in writing, without liability to the terminating party on account
of such termination (provided the terminating party is not otherwise in default
or in breach of this Agreement), if the "Closing" under the Tech Purchase
Agreement shall not have occurred on or before October 24, 2003, unless such
failure to close is a consequence of the breach of this Agreement, or the
default on its obligations hereunder, by the terminating party.
11. GENERAL.
11.1. Consent to Jurisdiction. The Seller and the Buyer hereby
irrevocably submit to the jurisdiction of any state or federal court sitting in
the State of Rhode Island over any action or proceeding arising out of or
relating to this Agreement, and the Seller and the Buyer hereby irrevocably
agree that all claims with respect to such action or proceeding may be heard and
determined in such state or federal court. The Seller and the Buyer hereby agree
that a final judgment in any action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
11.2. Expenses. The Buyer shall pay all transfer and sales taxes
payable in connection with the sale of the Stock. All expenses of the
preparation, execution and consummation of this Agreement and of the
transactions contemplated hereby, including, without limitation, attorneys',
accountants' and outside advisers' fees and disbursements, shall be borne by the
party incurring such expenses.
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11.3. Notices. All notices, demands and other communications hereunder
shall be in writing or by written telecommunication, and shall be deemed to have
been duly given if delivered personally or if mailed by certified mail, return
receipt requested, postage prepaid, or if sent by overnight courier, or sent by
written telecommunication, as follows:
If to the Seller, to:
Xx. Xxxxxxx Xxxx
Tech Industries, Inc.
00 Xxxxxxxxx Xxxxxx
X.X. Xxx X
Xxxxxxxxxx, XX 00000
Fax: 000-000-0000
with a copy sent contemporaneously to:
Xx. Xxxxx X. Xxxxxx
Xx. Xxxxxxx X. Xxxx
Tech Industries, Inc.
00 Xxxxxxxxx Xxxxxx
X.X. Xxx X
Xxxxxxxxxx, XX 00000
Fax: 000-000-0000
and
Xxxxxxxx X. Xxxxxxxxxxx, Esq.
Xxxxxxx XxXxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: 000-000-0000
If to the Buyer, to:
Portola Packaging, Inc.
000-X Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxxx, President
Fax: 000-000-0000
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with a copy sent contemporaneously to:
Xxxxxxxxxxxx X. Xxxxxx, Esq.
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Fax: 000-000-0000
Any such notice shall be effective (a) if delivered personally, when
received, (b) if sent by overnight courier, when receipted for, (c) if mailed,
five (5) days after being mailed as described above, and (d) if sent by written
telecommunication, when received.
11.4. Entire Agreement. This Agreement contains the entire
understanding of the parties, supersedes all prior agreements and understandings
relating to the subject matter hereof, and shall not be amended except by a
written instrument hereafter signed by all of the parties hereto.
11.5. Governing Law. The validity and construction of this Agreement
shall be governed by, and construed and enforced in accordance with, the
internal laws (and not the choice-of-law rules) of the State of Rhode Island.
11.6. Sections and Section Headings. The headings of sections and
subsections are for reference only and shall not limit or control the meaning
thereof.
11.7. Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, successors and
permitted assigns. Neither this Agreement nor the obligations of either party
hereunder shall be assignable or transferable by such party without the prior
written consent of the other party hereto.
11.8. Severability. In the event that any covenant, condition, or other
provision herein contained is held to be invalid, void, or illegal by any court
of competent jurisdiction, the same shall be deemed to be severable from the
remainder of this Agreement and shall in no way affect, impair, or invalidate
any other covenant, condition, or other provision contained herein.
11.9. Further Assurances. The parties hereto agree to take such
reasonable steps and execute such other and further documents as may be
necessary or appropriate to cause the terms and conditions contained herein to
be carried into effect.
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11.10. No Implied Rights or Remedies. Except as otherwise expressly
provided herein, nothing herein expressed or implied is intended or shall be
construed to confer upon or to give any Person, other than the Seller and the
Buyer and their respective shareholders or other equityholders, if any, any
rights or remedies under or by reason of this Agreement.
11.11. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11.12. Satisfaction of Conditions Precedent. Each of the Seller and the
Buyer will use his or its commercially reasonable efforts to cause the
satisfaction of the conditions precedent contained in this Agreement; provided,
however, that nothing contained in this Section 11.12 shall obligate either
party hereto to waive any right or condition under this Agreement.
11.13. Public Statements or Releases. Each of the parties hereto agrees
that prior to the consummation of the Closing no party to this Agreement will
make, issue or release any public announcement, statement or acknowledgment of
the existence of, or reveal the status of, this Agreement or the transactions
provided for herein, without first obtaining the consent of the other party
hereto.
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IN WITNESS WHEREOF, and intending to be legally bound hereby, the
parties hereto have caused this Agreement to be duly executed and delivered as a
sealed instrument as of the date and year first above written.
BUYER:
PORTOLA PACKAGING, INC.
By: /s/ XXXXX XXXXXX
--------------------------------
Xxxxx Xxxxxx, President
SELLER:
/s/ XXXXXXX XXXX
-----------------------------------
Xxxxxxx Xxxx
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Schedule 7.4
Directors and Officers of the Company
Directors:
The Company has no directors.
Officers:
Xxxxx X. Xxxxxx President and Treasurer
Xxxxxxx X. Xxxx Secretary
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