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EXHIBIT 2.2
SECURITIES PURCHASE AGREEMENT
AMONG
SUIZA FOODS CORPORATION,
SUIZA DAIRY GROUP HOLDINGS, INC.,
SUIZA DAIRY GROUP, L.P.,
SUIZA SOUTHEAST, LLC,
DAIRY FARMERS OF AMERICA, INC.,
AND, FOR CERTAIN LIMITED PURPOSES,
MID-AM CAPITAL, L.L.C.,
DATED AS OF APRIL 4, 2001
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SECURITIES PURCHASE AGREEMENT
TABLE OF CONTENTS
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SECTION 1 DEFINITIONS.....................................................................................1
SECTION 2 SALE AND PURCHASE OF SECURITIES.................................................................7
2.1. Sale and Purchase of Limited Partner Interests..................................................7
2.2. Purchase Price..................................................................................7
2.3. Closing.........................................................................................8
2.4. Closing Obligations.............................................................................9
SECTION 3 REPRESENTATIONS AND WARRANTIES OF DFA...........................................................9
3.1. Organization and Good Standing..................................................................9
3.2. Authority.......................................................................................9
SECTION 4 REPRESENTATIONS AND WARRANTIES OF SUIZA, HOLDINGS AND SDG......................................10
4.1. Organization and Good Standing.................................................................10
4.2. Authority......................................................................................10
SECTION 5 COVENANTS OF DFA COMPANIES PRIOR TO CLOSING DATE...............................................10
5.1. Notification...................................................................................10
5.2. No Negotiation.................................................................................10
5.3. Reasonable Best Efforts........................................................................11
5.4. Assistance with Permits and Filings............................................................11
5.5. Confidentiality................................................................................11
SECTION 6 COVENANTS OF HOLDINGS PRIOR TO CLOSING DATE....................................................11
6.1. Access and Investigation.......................................................................11
6.2. Operation of the Business of the SDG Companies.................................................11
6.3. Negative Covenant..............................................................................12
6.4. Notification...................................................................................12
6.5. No Negotiation.................................................................................12
6.6. Reasonable Best Efforts........................................................................12
6.7. Assistance with Permits and Filings............................................................12
6.8. Confidentiality................................................................................12
6.9. Xxxx Assets....................................................................................12
6.10. Delivery of Disclosure Letter for Xxxx of Sale.................................................13
6.11. Title Policies and Surveys.....................................................................13
6.12. Transfer Taxes.................................................................................14
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Table of Contents
(continued)
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SECTION 7 CONDITIONS PRECEDENT TO HOLDING'S OBLIGATION TO CLOSE..........................................15
7.1. Accuracy of Representations....................................................................15
7.2. DFA's or Mid-Am's Performance..................................................................15
7.3. Consents.......................................................................................15
7.4. No Proceedings.................................................................................15
7.5. No Prohibition.................................................................................15
7.6. Closing Certificate............................................................................15
7.7. Acquisition of Xxxx Foods......................................................................16
SECTION 8 CONDITIONS PRECEDENT TO DFA'S OBLIGATION TO CLOSE..............................................16
8.1. Accuracy of Representations....................................................................16
8.2. SDG's Performance..............................................................................16
8.3. Absence of Material Adverse Effects............................................................16
8.4. Consents.......................................................................................16
8.5. No Proceedings.................................................................................16
8.6. No Prohibition.................................................................................17
8.7. Closing Certificates...........................................................................17
8.8. Acquisition of Xxxx Foods......................................................................17
SECTION 9 INDEMNIFICATION; REMEDIES......................................................................17
9.1. Representations; Survival......................................................................17
9.2. Indemnification and Payment of Damages by Suiza and SDG........................................18
9.3. Indemnification and Payment of Damages by DFA..................................................19
9.4. Limitations on Amount..........................................................................19
9.5. Procedure for Indemnification - Third Party Claims.............................................20
9.6. Procedure for Indemnification - Other Claims...................................................21
9.7. Mitigation.....................................................................................21
9.8. Exclusive Remedy...............................................................................21
SECTION 10 TERMINATION....................................................................................21
10.1. Termination Events.............................................................................21
10.2. Effect of Termination..........................................................................22
SECTION 11 OTHER AGREEMENTS...............................................................................22
11.1. Employee Matters...............................................................................22
11.2. Limited Partnership Agreement..................................................................22
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Table of Contents
(continued)
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11.3 WARN Act.......................................................................................22
SECTION 12 GENERAL PROVISIONS.............................................................................23
12.1. Public Announcements...........................................................................23
12.2. Notices........................................................................................23
12.3. Attorney's Fees and Costs......................................................................23
12.4. Further Assurances.............................................................................23
12.5. Waiver.........................................................................................24
12.6. Entire Agreement and Modification..............................................................24
12.7. Assignments, Successors and No Third Party Rights..............................................24
12.8. Specific Performance...........................................................................24
12.9. Severability...................................................................................25
12.10. Section Headings, Construction.................................................................25
12.11. Time of Essence................................................................................25
12.12. Governing Law..................................................................................25
12.13. Counterparts...................................................................................25
12.14. Dispute Resolution.............................................................................25
EXHIBITS
Exhibit A Dairy Assets and Excluded Assets
Exhibit B Excluded Liabilities
Exhibit C Form of Subordinated Promissory Note
Exhibit D Form of Xxxx of Sale, Assignment and Assumption Agreement
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SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement ("AGREEMENT") is made as of APRIL 4,
2001, by and among Suiza Foods Corporation, a Delaware corporation ("SUIZA"),
Suiza Dairy Group Holdings, Inc., a Nevada corporation ("Holdings"), Suiza Dairy
Group, L.P., a Delaware limited partnership ("SDG"), Suiza Southeast, LLC, a
Delaware limited liability company ("SUIZA SOUTHEAST"), Dairy Farmers of
America, Inc., a Kansas cooperative marketing association ("DFA"), and, for the
limited purposes indicated on the signature pages hereto, Mid-Am Capital,
L.L.C., a Delaware limited liability company ("MID-AM").
RECITALS
Each of DFA and Mid-Am owns certain limited partner interests in SDG,
and Suiza indirectly owns the remaining limited partner interests in SDG.
Holdings desires to purchase from DFA and Mid-Am, and DFA and Mid-Am
desire to sell to Holdings, all the limited partner interests in SDG held by
each of them, on the terms and subject to the conditions set forth in this
Agreement.
The parties, intending to be legally bound, agree as follows:
SECTION 1
DEFINITIONS
For purposes of this Agreement, the following terms have the meanings
specified or referred to in this Section 1:
"ACCOUNTANT" - as defined in Section 2.2(c).
"ACTUAL CASH ADJUSTMENT" - as defined in Section 2.2(d).
"AFFILIATE" - means with respect to any Person, any other Person,
directly or indirectly, controlling, controlled by, or under common control
with, such Person. For purposes of this definition, the term "CONTROL"
(including the correlative terms "CONTROLLING", "CONTROLLED BY" and "UNDER
COMMON CONTROL WITH") means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
The term "AFFILIATE" also includes any director or executive officer (or person
performing similar functions) of DFA, Mid-Am, Suiza, Holdings, SDG or Suiza
Southeast (as applicable) and any executive officer of any Person that controls
any such entity (as applicable).
"XXXX OF SALE" - the Xxxx of Sale, Assignment and Assumption Agreements
to be executed and delivered at the Closing.
"CASH ADJUSTMENT" - as defined in Section 2.2(a).
"CASH CONSIDERATION" - as defined in Section 2.2(a).
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"CLOSING" - as defined in Section 2.3.
"CLOSING DATE" - the date and time as of which the Closing actually
takes place.
"CLOSING DATE WORKING CAPITAL" - the aggregate Working Capital of the
Dairy Operations assumed on the Closing Date, as agreed to by Holdings and DFA.
"COMMITMENT" - as defined in Section 6.11(a).
"CONSENT" - any approval, consent, ratification, waiver, or other
authorization (including any Governmental Authorization).
"DAIRY ASSETS" - the assets set forth on Exhibit A attached to this
Agreement.
"DAIRY LIABILITIES" - accounts payable, accrued expenses (which are
current liabilities) and other current liabilities in each case incurred in the
Ordinary Course of Business by the Dairy Operations as of the Closing Date,
including, without limitation, performance obligations following the Closing
under Contracts entered into in the Ordinary Course of Business; provided,
however, that such performance obligations have not been adversely affected as a
result of a breach by Suiza or any Affiliate of Suiza prior to the Closing.
Dairy Liabilities shall not include the current portion of Excluded Liabilities,
unless agreed to by Holdings and DFA.
"DAIRY OPERATIONS" - the dairy and related product manufacturing,
processing and distribution operations conducted using the Dairy Assets.
"DAMAGES" - as defined in Section 9.2.
"XXXX ASSETS" - the outstanding capital stock or other equity interests
of Coburg Dairy, Inc., and the X. Xxxxx Dairy Company, Cream-X-Xxxxx Dairy, Inc.
and Xxxxxx Dairies, Inc. milk facility assets referenced in Exhibit A.
"XXXX FOODS" - Xxxx Foods Company, a Delaware corporation.
"DISCLOSURE LETTER" - the disclosure letter executed by DFA and Suiza,
Holdings and SDG, as applicable, concurrently with the execution and delivery of
this Agreement.
"DFA" - Dairy Farmers of America, Inc., a Kansas cooperative marketing
association.
"DFA COMPANIES" - DFA and Mid-Am.
"DFA MATERIAL ADVERSE EFFECT" - any material adverse effect on the
business, properties, assets, condition (financial or otherwise), liabilities or
results of operations of the DFA Companies, taken as a whole, other than any
effects arising out of or resulting from changes affecting the economy or
financial conditions generally or the dairy industry generally.
"DFA'S ADVISORS" - as defined in Section 6.1.
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"ENCUMBRANCE" - any lien, mortgage, easement, servitude, right of way,
charge, pledge, security interest, escrow, proxy, right of first refusal,
preemptive right, title retention agreement, indenture or any other encumbrance,
restriction or limitation of any kind.
"ENVIRONMENT" - soil, land surface or subsurface strata, surface waters
(including navigable waters, ocean waters, streams, ponds, drainage basins, and
wetlands), ground waters, drinking water supply, stream sediments, ambient air,
plant and animal life, and any other environmental medium.
"ENVIRONMENTAL LAW" - any Legal Requirement that relates to the
Environment.
"ESTIMATED CASH ADJUSTMENT" - as defined in Section 2.2(d).
"EXCLUDED ASSETS" - as defined in Exhibit A.
"EXCLUDED LIABILITIES" - any Liability other than the Dairy
Liabilities, including, by way of example the Liabilities set forth on Exhibit
B.
"EBITDA" - means an amount equal to earnings before interest taxes,
depreciation and amortization, as calculated in accordance with U.S. generally
accepted accounting principles.
"ERISA" - the Employee Retirement Income Security Act of 1974 or any
successor law, and regulations and rules issued pursuant to that Act or any
successor law.
"FACILITIES" - any real property, leaseholds, or other interests in
real property and any buildings, plants, structures, or fixtures included within
the Dairy Assets.
"GOVERNMENTAL AUTHORIZATION" - any approval, consent, license, permit,
waiver, or other authorization issued, granted, given, or otherwise made
available by or under the authority of any Governmental Body or pursuant to any
Legal Requirement.
"GOVERNMENTAL BODY" - any:
(a) nation, state, county, city, town, village, district, or other
jurisdiction of any nature;
(b) federal, state, local, municipal, foreign, or other government;
(c) governmental or quasi-governmental authority of any nature; or
(d) other body exercising any administrative, executive, judicial,
legislative, police, regulatory, or taxing authority or power.
"HAZARDOUS MATERIALS" - any waste or other substance that is listed,
defined, designated, or classified as, or otherwise determined to be, hazardous,
radioactive, or toxic or a pollutant or a contaminant under or pursuant to any
Environmental Law.
"HOLDINGS" - Suiza Dairy Group Holdings, Inc., a Nevada corporation.
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"INDEMNIFIED PERSON" - any Person to be indemnified under Section 9.
"LEGAL REQUIREMENT" - any administrative order, constitution, law,
ordinance, principle of common law, regulation, rule or statute of any
Governmental Body, including without limitation all federal, state and local
laws related to Taxes, ERISA, Hazardous Materials and the Environment, zoning
and land use, occupational safety and health, product quality and safety,
employment and labor matters.
"LIABILITIES" - any direct or indirect debts, obligations or
liabilities of any nature, whether absolute, accrued, contingent, liquidated or
otherwise, and whether due or to become due, asserted or unasserted, known or
unknown.
"LIMITED PARTNERSHIP AGREEMENT" - The Second Amended and Restated
Limited Partnership Agreement of SDG, as amended.
"MID-AM" - Mid-Am Capital, L.L.C., a Delaware limited liability
company.
"NOTE"- as defined in Section 2.2(a).
"ORDER" - any award, decision, injunction, judgment, order, ruling,
subpoena, or verdict entered, issued, made, or rendered by any court,
administrative agency, or other Governmental Body or by any arbitrator.
"ORDINARY COURSE OF BUSINESS" - an action taken by a Person will be
deemed to have been taken in the "Ordinary Course of Business" only if:
(a) such action is consistent with the past practices of such Person
and is taken in the ordinary course of the normal day-to-day operations of such
Person; and
(b) such action is not required to be authorized by the board of
directors of such Person (or by any Person or group of Persons exercising
similar authority).
"PERMITTED ENCUMBRANCE" - as to any Person (i) liens for current Taxes
not yet due or payable and liens for Taxes being contested in good faith, as to
which appropriate reserves have been established by such Person; (ii) liens for
obligations not yet due that arise as a matter of law in the Ordinary Course of
Business of such Person that would not prevent DFA from obtaining full title
insurance over any general or standard exception; (iii) zoning or planning
restrictions or regulations imposed by any Governmental Body, non-utility
easements, Government Authorizations, restrictive covenants of record,
encroachments and other minor restrictions or limitations on the use of any real
property or minor imperfections of title on real property, which in the case of
any matter contained in this item (iii) does not render title unmarketable (or
defeasible, as the case may be, depending upon the state in which the property
is located) or adversely affect the present use or value (as either are
reasonably agreed to by the parties) of such real property; (iv) Encumbrances
disclosed in Section 1 of the Disclosure Letter as reasonably agreed to by the
parties; and (v) public utility easements that do not lie beneath any buildings
located on such real property and which do not render title unmarketable (or
defeasible, as the case may be, depending upon the state in which the property
is located) or
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adversely affect the present use or value (as either are reasonably agreed to by
the parties) of such real property. Survey Defects shall not be a Permitted
Encumbrance.
"PERSON" - any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company,
cooperative marketing association, joint venture, estate, trust, association or
other entity.
"PROCEEDING" - any action, arbitration, audit, hearing, investigation,
litigation, or suit (whether civil, criminal, administrative, investigative, or
informal) commenced, brought, conducted, or heard by or before, any Governmental
Body or arbitrator.
"PURCHASE PRICE" - as defined in Section 2.2.
"REPRESENTATIVE" - with respect to a particular Person, any director,
officer, employee, agent, consultant, advisor, or other representative of such
Person, including legal counsel, accountants, and financial advisors.
"SDG" - Suiza Dairy Group, L.P., a Delaware limited partnership.
"SDG COMMON INTERESTS" - as defined in Section 2.1.
"SDG MATERIAL ADVERSE EFFECT" - any material adverse effect on the
business, properties, assets, condition (financial or otherwise), liabilities or
results of operations of SDG and its subsidiaries, taken as a whole, other than
any effects arising out of or resulting from changes affecting the economy or
financial conditions generally or the dairy industry generally.
"SDG PREFERRED INTERESTS" - as defined in Section 2.1.
"STATED WORKING CAPITAL" means the average month-end Working Capital of
the Dairy Operations for the twelve (12) full calendar months preceding the
period ending 90 days prior to the Closing.
"SUIZA" - Suiza Foods Corporation, a Delaware corporation.
"SURVEY" - as defined in Section 6.11(c).
"SURVEY DEFECT" - as defined in Section 6.11(c).
"SUIZA SOUTHEAST" - Suiza Southeast, LLC, a Delaware limited liability
company and a wholly-owned subsidiary of SDG.
"TAXES" - all taxes, charges, fees, duties, levies or other
assessments, including, without limitation, income, gross receipts, net
proceeds, ad valorem, real and personal property (tangible and intangible),
sales, use, franchise, user, transfer, fuel, excess profits, occupational,
employees' income withholding, unemployment and Social Security taxes, which are
imposed by any Governmental Body.
"TERMINATION DATE" - as defined in Section 10.1(c).
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"TITLE COMPANY" - as defined in Section 6.11(a).
"TITLE POLICY" - as defined in Section 6.11(a).
"TRANSACTION MATERIAL ADVERSE EFFECT" - any material adverse effect on
the business, properties, assets, condition (financial or otherwise),
liabilities or results of operations of the Dairy Operations, other than any
effects arising out of or resulting from (a) changes affecting the economy or
financial conditions generally or the dairy industry generally, (b) any material
customer notifying any of the Dairy Operations after the date of this Agreement
that such material customer intends to terminate or materially alter its
relationship with such Dairy Operation (including as a result of or relating to
a transaction involving such a material customer that occurs or is announced
prior to Closing) other than as a result of a dispute with, or that arises out
of the actions or activities of, such Dairy Operation or an Affiliate of Suiza,
or (c) any transaction that is announced after the date of this Agreement, or
that occurs after the date of this Agreement (but was not announced prior to the
date of this Agreement) involving any such material customer which results or
could result in such material customer terminating or materially altering its
relationship with such Dairy Operation, other than a transaction in which such
Dairy Operation or an Affiliate of Suiza is a party and other than any such
termination or alteration that arises as a result of a dispute with, or out of
the actions or activities of, such Dairy Operation or an Affiliate of Suiza.
"UNPERMITTED ENCUMBRANCES" - as defined in Section 6.11(a).
"XXXXX" - Xxxxx Farms, LLC, a Delaware limited liability company and a
wholly-owned subsidiary of Suiza Southeast.
"XXXXX MATERIAL ADVERSE EFFECT" - any material adverse effect on the
business, properties, assets, condition (financial or otherwise), liabilities or
results of operations of Xxxxx, other than any effects arising out of or
resulting from (a) changes affecting the economy or financial conditions
generally or the dairy industry generally, (b) any material customer notifying
Xxxxx after the date of this Agreement that such material customer intends to
terminate or materially alter its relationship with Xxxxx (including as a result
of or relating to a transaction involving such a material customer that occurs
or is announced prior to Closing) other than as a result of a dispute with, or
that arises out of the actions or activities of, Xxxxx, or (c) any transaction
that is announced after the date of this Agreement, or that occurs after the
date of this Agreement (but was not announced prior to the date of this
Agreement) involving any such material customer which results or could result in
such material customer terminating or materially altering its relationship with
Xxxxx, other than a transaction in which Xxxxx or an Affiliate of Suiza is a
party and other than any such termination or alteration that arises as a result
of a dispute with, or out of the actions or activities of, Xxxxx or an Affiliate
of Suiza.
"WORKING CAPITAL" - (i) the aggregate book value of the current assets
of the Dairy Operations minus (ii) the aggregate book value of the Dairy
Liabilities, in each case (x) as adjusted to exclude non-recurring items and (y)
as calculated from the historical financial statements of the applicable Dairy
Operation as adjusted to comply with U.S. generally accepted accounting
principles.
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SECTION 2
SALE AND PURCHASE OF SECURITIES
2.1. SALE AND PURCHASE OF LIMITED PARTNER INTERESTS. On the terms and
subject to the conditions set forth in this Agreement, at the Closing, Holdings
will purchase (i) from DFA, its 33.8% common limited partner interests in SDG
(the "SDG COMMON INTERESTS"), which constitute all limited partner interests in
SDG owned, directly or indirectly, by DFA, and (ii) from Mid-Am, its $90 million
stated amount of preferred limited partner interests in SDG (the "SDG PREFERRED
INTERESTS"), which constitute all limited partner interests in SDG owned,
directly or indirectly, by Mid-Am. The SDG Common Interests and the SDG
Preferred Interests will be conveyed to Holdings free and clear of any
Encumbrances, pursuant to assignment documents in form and substance reasonably
satisfactory to the parties hereto.
2.2. PURCHASE PRICE.
(a) In exchange for the SDG Common Interests and the SDG
Preferred Interests, Holdings will (i) cause SDG or Xxxx Foods, as
applicable, to transfer, sell and convey the Dairy Assets and the Dairy
Liabilities to DFA, (ii) pay, or cause SDG to pay, an amount equal to
$166 million in cash to DFA and Mid-Am, subject to adjustment as set
forth below (the "CASH CONSIDERATION"), in the relative amounts
designated by the DFA Companies at least 3 days prior to Closing, and
(iii) deliver a subordinated promissory note executed by Suiza in the
principal amount of $50,000,000 to DFA, in substantially the form of
Exhibit C attached hereto (the "NOTE"). Items (i), (ii), and (iii) are
collectively referred to as the "PURCHASE PRICE". SDG will not
transfer, sell or convey the Excluded Assets to DFA and DFA will not
assume and shall not be liable or responsible for any Excluded
Liabilities. The Cash Consideration payable to DFA at Closing shall be
(A) increased for DFA's and Mid-Am's pro rata share of the reported
earnings of SDG from and including January 1, 2001 through the day
immediately preceding the Closing Date, (B) decreased by (I)
$2,535,000, plus (II) the amount of any distributions (including any
distributions to be paid after Closing related to the period prior to
the Closing Date) paid to DFA and Mid-Am of cash or other property and
the amount of any deemed distributions (for stock option exercises)
deemed paid to DFA and Mid-Am under the Limited Partnership Agreement,
in the case of such distributions, from and including January 1, 2001
and through the day immediately preceding the Closing Date, and (C)
increased or decreased, as applicable, to the extent the Closing Date
Working Capital is less than or greater than Stated Working Capital
(collectively, the "CASH ADJUSTMENT").
(b) Promptly following the date of this Agreement, SDG and DFA
shall work together in good faith to come to an agreement concerning
(i) the amount of the Stated Working Capital and (ii) whether the Dairy
Operations can be reasonably expected to generate annual EBITDA, as
adjusted to exclude non-recurring items, to take into account Dairy
Liabilities, Excluded Liabilities and Excluded Assets and to include
reasonable overhead charges, all as mutually determined and agreed to
by SDG and DFA, in an aggregate amount of approximately $40 million. If
after making the determination set forth in clause (ii) above, SDG and
DFA conclude that the Dairy Operations can
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reasonably be expected to generate materially more or less than $40
million in annualized EBITDA, then SDG and DFA shall promptly, and in
good faith, work together to agree on an appropriate adjustment to the
Cash Consideration. Any adjustment to the Cash Consideration shall be
paid by an increase or reduction in the amount of cash to be paid, as
applicable, or, in the case of a shortfall, the transfer of additional
dairy assets (and associated Dairy Liabilities) to DFA, or some
combination of cash and such additional assets, as may be mutually
agreed between SDG and DFA.
(c) If SDG and DFA are unable, no later than 30 days prior to
the anticipated Closing Date, (i) to reach an agreement concerning the
amount of Stated Working Capital or (ii) (A) to so determine that the
Dairy Operations can be reasonably expected to generate the amount of
EBITDA set forth in Section 2.2(b), or (B) if having made such
determination, are thereafter unable to agree on any appropriate
adjustment to the Cash Consideration or upon the quantity or identity
of any such additional dairy assets to be conveyed, then any such
dispute shall be submitted promptly to a nationally known independent
certified public accounting firm reasonably acceptable to SDG and DFA
(the "ACCOUNTANT"), which will determine, within 20 days after such
submission, (x) the amount of the Stated Working Capital, and/or (y)
the amount of such EBITDA or the appropriate adjustment to the Cash
Consideration, as applicable. SDG and DFA will each pay one-half of the
fees and expenses of the Accountant. Any such determination by the
Accountant will be final and binding upon SDG and DFA.
(d) At least three (3) days prior to the Closing Date, SDG
shall deliver to DFA a good faith estimate, in reasonable detail, of
the Cash Adjustment (the "ESTIMATED CASH ADJUSTMENT") which will be
used to adjust the Cash Consideration at the Closing. Within sixty (60)
days after the Closing, SDG will calculate the Cash Adjustment at the
Closing and notify DFA of such calculation. If DFA disputes the
accuracy of SDG's calculation within thirty (30) days after receipt
thereof, and the parties are unable to settle such dispute within an
additional fifteen (15) days, then the dispute shall be submitted
promptly to the Accountant, which will determine the actual Cash
Adjustment at the Closing. SDG and DFA will each pay one-half of the
fees and expenses of the Accountant. Any such determination by the
Accountant will be final and binding upon SDG and DFA. The actual Cash
Adjustment at the Closing determined by SDG, by agreement between the
parties or by the Accountant (as provided in this paragraph), is
referred to as the "ACTUAL CASH ADJUSTMENT." If the Actual Cash
Adjustment exceeds the Estimated Cash Adjustment, then SDG will pay to
DFA the amount of such excess in cash by wire transfer of immediately
available funds (to accounts specified in writing by DFA) within five
(5) days after determination of the Actual Cash Adjustment. If the
Actual Cash Adjustment is less than the Estimated Cash Adjustment, then
DFA will pay to SDG the amount of such shortfall in cash by wire
transfer of immediately available funds (to an account specified in
writing by SDG) within five (5) days after determination of the Actual
Cash Adjustment. Any payment required pursuant to this paragraph will
be considered an adjustment to the Purchase Price.
2.3. CLOSING. The closing of the transactions contemplated hereby (the
"CLOSING") will take place at the offices of Xxxxxx & Xxxx, L.L.P. at 0000 Xxxx
Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx, at 10:00 a.m. (local time) on the third
business day following the satisfaction or waiver of
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all conditions precedent set forth in Sections 7 and 8 or at such other time and
place as SDG and DFA agree.
2.4. CLOSING OBLIGATIONS. At the Closing:
(a) Suiza, Holdings, SDG, Suiza Southeast, Xxxx Foods and/or
one or more of its subsidiaries, DFA and Mid-Am, as applicable, will
execute and deliver a Xxxx of Sale (and the related documents,
instruments and agreements referenced therein) in substantially the
form attached hereto as Exhibit D transferring (i) the Dairy Assets and
the Dairy Liabilities to DFA, (ii) the SDG Common Interests owned by
DFA to SDG, and (iii) the SDG Preferred Interests owned by Mid-Am to
SDG.
(b) Holdings will pay, or will cause the payment of, the Cash
Consideration, adjusted as contemplated by Section 2.2, by wire
transfer of immediately available funds to the appropriate party or
parties designated by the DFA Companies.
(c) Suiza will execute and deliver the Note to DFA,
substantially in the form attached hereto as Exhibit C (provided, that
Suiza and DFA, each acting reasonably and in good faith, must mutually
agree on any changes to the Note).
(d) Suiza, Holdings, SDG, Suiza Southeast, Xxxx Foods and/or
one or more of its subsidiaries, DFA and Mid-Am will execute and
deliver such other documents and agreements required under Sections 7
and 8, as applicable.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF DFA
DFA represents and warrants to Suiza, Holdings and SDG as follows:
3.1. ORGANIZATION AND GOOD STANDING. Each DFA Company is a cooperative
company or limited liability company duly organized, validly existing, and in
good standing under the laws of its state of formation, with full cooperative
company or limited liability company power and authority to conduct its business
as it is now being conducted.
3.2. AUTHORITY.
(a) This Agreement constitutes the legal, valid, and binding
obligation of each DFA Company, enforceable against each DFA Company in
accordance with its terms except to the extent that its enforceability
may be limited by bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium or other laws relating or affecting creditors'
rights generally and by general equity principles.
(b) Each DFA Company has the requisite cooperative company or
limited liability company right, power, authority, and capacity to
execute and deliver this Agreement and to perform its obligations under
this Agreement. The execution, delivery and performance of this
Agreement by each DFA Company have been duly authorized by
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all necessary cooperative company or limited liability company action
on the part of each DFA Company and its owners.
SECTION 4
REPRESENTATIONS AND WARRANTIES OF SUIZA, HOLDINGS AND SDG
Suiza, Holdings and SDG, jointly and severally, represent and warrant
to DFA as follows:
4.1. ORGANIZATION AND GOOD STANDING. Each of Suiza, Holdings, SDG and
Suiza Southeast is a corporation, limited partnership or limited liability
company duly organized, validly existing, and in good standing under the laws of
its state of formation, with full corporate, partnership or limited liability
company power and authority to conduct its business as it is now being
conducted. Each of Suiza, Holdings, SDG and Suiza Southeast is duly qualified to
do business as a foreign corporation, foreign limited partnership or foreign
limited liability company and is in good standing under the laws of each state
or other jurisdiction in which the nature of the activities conducted by it
requires such qualification, except where such failure to so qualify does not
have a SDG Material Adverse Effect.
4.2. AUTHORITY.
(a) This Agreement constitutes the legal, valid, and binding
obligation of each of Suiza, Holdings, SDG and Suiza Southeast,
enforceable against such entities in accordance with its terms except
to the extent that its enforceability may be limited by bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium or other
laws relating or affecting creditors' rights generally and by general
equity principles.
(b) Each of Suiza, Holdings, SDG and Suiza Southeast has the
requisite corporate, limited partnership or limited liability company
right, power, authority, and capacity to execute and deliver this
Agreement and to perform its obligations under this Agreement. The
execution, delivery and performance of this Agreement by each of Suiza,
Holdings, SDG and Suiza Southeast have been duly authorized by all
necessary corporate, limited partnership or limited liability company
action on the part of such entity and its owners.
SECTION 5
COVENANTS OF DFA COMPANIES PRIOR TO CLOSING DATE
5.1. NOTIFICATION. Between the date of this Agreement and the Closing
Date, DFA and Mid-Am will promptly notify Holdings of the occurrence of any
material breach of any covenant of DFA or Mid-Am in this Section 5 or of the
occurrence of any event that may make the satisfaction of the conditions in
Section 7 impossible.
5.2. NO NEGOTIATION. Until such time, if any, as this Agreement is
terminated pursuant to Section 9, DFA and Mid-Am will not, and will cause their
Representatives not to, directly or indirectly solicit, initiate, or encourage
any inquiries or proposals from, discuss or negotiate with,
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provide any non-public information to any Person (other than SDG or SDG's
Representatives and lenders and their Representatives) relating to any
transaction involving the sale of the SDG Common Interests and SDG Preferred
Interests.
5.3. REASONABLE BEST EFFORTS. Between the date of this Agreement and
the Closing Date, each of DFA and Mid-Am will use its reasonable best efforts to
cause the conditions in Sections 7 and 8 to be satisfied.
5.4. ASSISTANCE WITH PERMITS AND FILINGS. DFA and Mid-Am will furnish
Holdings with all information that is required for inclusion in any application
or filing to be made by Suiza or by Xxxx Foods or their respective Affiliates to
any Governmental Body in connection with the transactions contemplated hereby.
Each of DFA and Mid-Am will use its reasonable best efforts to assist Suiza,
Xxxx Foods or their respective Affiliates in obtaining any Governmental
Authorizations, or any Consents related thereto, that any of such parties will
require in connection with the transfer of the Dairy Operations, the Dairy
Liabilities, the SDG Common Interests and the SDG Preferred Interests.
5.5. CONFIDENTIALITY. DFA and Mid-Am will maintain in confidence, and
will cause their respective Representatives to maintain in confidence, any
non-public information furnished to them by Suiza, Xxxx Foods or any their
respective Affiliates or Representatives in connection with this Agreement or
the transactions contemplated hereby.
SECTION 6
COVENANTS OF HOLDINGS PRIOR TO CLOSING DATE
6.1. ACCESS AND INVESTIGATION. Following the date of this Agreement,
Holdings will cause SDG and Suiza Southeast to (a) afford DFA and its
Representatives and lenders and their Representatives (collectively, "DFA'S
ADVISORS") reasonable access during normal business hours to the personnel,
properties, contracts, books and records, and other documents and data relating
to Xxxxx, and will use its reasonable best efforts to cause Xxxx Foods to afford
DFA and the DFA Advisors reasonable access during normal business hours to the
personnel, properties, contracts, books and records and other documents and data
relating to the Xxxx Assets, (b) furnish DFA and DFA's Advisors with such
additional financial, operating and other data and information with respect to
Xxxxx as DFA may reasonably request, and use its reasonable best efforts to
cause Xxxx Foods to furnish DFA and DFA's Advisors with copies of all such
contracts, books and records, and other existing documents and data as DFA may
reasonably request with respect to the Xxxx Assets, and (c) furnish DFA and
DFA's Advisors with such additional financial, operating, and other data and
information with respect to Xxxxx as DFA may reasonably request, and use its
reasonable best efforts to cause Xxxx Foods to furnish DFA and DFA's Advisors
with such additional financial, operating and other data and information with
respect to the Xxxx Assets as DFA may reasonably request.
6.2. OPERATION OF THE BUSINESS OF THE SDG COMPANIES. Between the date
of this Agreement and the Closing Date, Suiza Southeast will cause Xxxxx to:
(a) conduct its business only in the Ordinary Course of
Business;
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(b) use its commercially reasonable efforts to maintain its
relations and goodwill with suppliers, customers, landlords, creditors,
employees, agents, and others having business relationships with Xxxxx;
and
(c) otherwise report periodically to DFA concerning the status
of the business, operations and finances of Xxxxx as may be reasonably
requested by DFA.
6.3. NEGATIVE COVENANT. Except as otherwise expressly permitted by this
Agreement, between the date of this Agreement and the Closing Date, neither
Suiza, Holdings, SDG or Suiza Southeast will, without the prior consent of DFA,
take any affirmative action, or fail to take any reasonable action within their
or its control, as a result of which a Xxxxx Material Adverse Effect will occur.
6.4. NOTIFICATION. Between the date of this Agreement and the Closing
Date, Holdings will promptly notify DFA of the occurrence of any material breach
of any covenant in this Section 6 or of the occurrence of any event that may
make the satisfaction of the conditions in Section 8 impossible.
6.5. NO NEGOTIATION. Until such time, if any, as this Agreement is
terminated pursuant to Section 9, neither Suiza, Holdings, SDG or Suiza
Southeast will, and will cause their Representatives not to, directly or
indirectly solicit, initiate, or encourage any inquiries or proposals from,
discuss or negotiate with, provide any non-public information to any Person
(other than DFA and DFA's Advisors) relating to any transaction involving the
sale of Xxxxx (other than in the Ordinary Course of Business) or any merger,
consolidation, business combination, or similar transaction involving Xxxxx.
6.6. REASONABLE BEST EFFORTS. Between the date of this Agreement and
the Closing Date, each of Suiza, Holdings, SDG and Suiza Southeast will use its
reasonable best efforts to cause the conditions in Sections 7 and 8 to be
satisfied.
6.7. ASSISTANCE WITH PERMITS AND FILINGS. Each of Suiza, SDG, Holdings
and Suiza Southeast will furnish DFA or Mid-Am, as applicable, with all
information that is required for inclusion in any application or filing to be
made by DFA or their Affiliates to any Governmental Body in connection with the
transactions contemplated hereby. Each of Suiza, SDG, Holdings and Suiza
Southeast will use its reasonable best efforts to assist DFA or Mid-Am, as
applicable, in obtaining any Governmental Authorizations, or any Consents
related thereto, that DFA or Mid-Am, as applicable, will require in connection
with the transactions contemplated hereby.
6.8. CONFIDENTIALITY. Each of Suiza, SDG, Holdings and Suiza Southeast
will maintain in confidence, and will cause their respective Representatives to
maintain in confidence, any non-public information furnished to them by either
DFA or Mid-Am in connection with this Agreement or the transactions contemplated
hereby.
6.9. XXXX ASSETS. Holdings will cause Xxxx Foods to execute and deliver
a separate Xxxx of Sale, and the applicable documents, instruments and
agreements contemplated thereby, in order to convey to DFA at the Closing the
Xxxx Assets.
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6.10. DELIVERY OF DISCLOSURE LETTER FOR XXXX OF SALE. As soon as
practicable after the execution of this Agreement, Holdings will deliver, and
will use its reasonable best efforts to cause Xxxx Foods to deliver, to DFA, a
draft of their respective Disclosure Letters (as defined, for purposes of this
sentence, in the Xxxx of Sale) related to the Xxxx of Sale. Items listed on any
such Disclosure Letter shall be subject to the reasonable approval of DFA.
Without limiting the foregoing, Suiza, Holdings, SDG, Suiza Southeast and each
DFA Company hereby acknowledge that the matters set forth on the Disclosure
Letter to be delivered by Suiza, Holdings and SDG under this Agreement, and the
Disclosure Letter (as defined, for purposes of this clause, in the Xxxx of Sale)
to be delivered by any Person under the Xxxx of Sale shall not be deemed to
expand the definition of Dairy Liabilities to be assumed by DFA, except as
otherwise specifically agreed in writing by DFA.
6.11 TITLE POLICIES AND SURVEYS.
(a) As soon as practicable after the date hereof, Holdings
shall cause to be delivered to DFA commitments (each, a "COMMITMENT")
issued by a title company reasonably acceptable to DFA (the "TITLE
COMPANY") for the issuance of ALTA (or state equivalent) Owner's
Policies of Title Insurance for each parcel of real property used in
the Dairy Operations (each, a "TITLE POLICY"), each in an amount not to
exceed the fair market value of each such parcel. Each Commitment shall
show fee simple title to the applicable parcel vested in the applicable
Suiza Affiliate, Xxxx Foods Affiliate or the applicable landlord, as
the case may be, subject in each case only to the Permitted
Encumbrances. Unless the issuance of same is generally legally
prohibited by the insurance regulatory agency of the state in which the
real property is located, each Title Policy to be issued by the Title
Company shall have all standard and general exceptions deleted so as to
afford full "extended form coverage" and shall contain tax parcel,
zoning 3.1 with parking, non-imputation, access, survey, utility
facility, owner's comprehensive, contiguity (if applicable), deletion
of creditors' rights exception, and such other endorsements as may be
reasonably requested by DFA in order to insure over an Unpermitted
Encumbrance or Survey Defect. At the Closing, Holdings shall deliver or
cause to be delivered such affidavits or other instruments as the Title
Company may reasonably require to delete standard and general
exceptions and to provide the special endorsements required hereunder.
Unless the issuance of same is generally legally prohibited by the
insurance regulatory agency of the state in which the real property is
located, Holdings shall cause the Commitments to be later-dated to
cover the Closing and cause the Title Company to delete all Schedule B
requirements and all standard exceptions in the Commitments at the
Closing as directed by DFA. Notwithstanding anything to the contrary
contained in this Agreement, Holdings shall pay or cause to be paid the
entire premium for each Title Policy at the Closing.
(b) As soon as practicable after the date hereof, Holdings, at
its sole cost and expense, shall deliver to DFA and the Title Company
an as-built survey for each parcel of real property used in the Dairy
Operations (each, a "SURVEY") prepared by a registered land surveyor or
engineer, licensed in the state in which the applicable parcel is
located, dated on or after the date of this Agreement, certified to
DFA, DFA's lender, DFA's counsel, the Title Company, and such other
entities as DFA may designate in writing to Holdings, and in accordance
with the Minimum Standard Detail Requirements for
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ALTA/ACSM Land Title Surveys, jointly established and adopted by ALTA,
ACSM and NSPS in 1999, and including such Table A Items as are
reasonably required by DFA's lender or, if there is no such lender, as
is customary (as reasonably agreed to by the parties) in the state in
which the real property is located, and pursuant to the Accuracy
Standards (as adopted by ALTA, NSPS and ACSM and in effect on the date
of certification) such that the survey measurements are made in
accordance with the Minimum Angle, Distance and Closure Requirements
for Survey Measurements Which Control Land Boundaries for ALTA/ACSM
Land Title Surveys, sufficient to cause the Title Company to delete the
standard printed survey exception.
(c) If (i) any Commitment discloses a title exception other
than a Permitted Encumbrance (an "UNPERMITTED ENCUMBRANCE") or (ii) any
Survey discloses any encroachment, overlap, boundary dispute, gap or
any other matter which renders title to any parcel of real property
used in the Dairy Operations unmarketable (or defeasible, as the case
may be, depending on the state in which the property is located) or
reflects that any utility service to the improvements or access thereto
from the public right-of-way does not lie wholly within any such
parcel, or within an easement for the benefit of any such parcel, or
reflects any other matter adversely affecting the present use or value
(as either are reasonably agreed to by the parties) of any such parcel
(any of the foregoing, a "SURVEY DEFECT"), then Holdings, at its sole
cost and expense, prior to the Closing, shall use its reasonable best
efforts to cause all Unpermitted Encumbrances to be removed from the
applicable Commitment(s) and/or all Survey Defects eliminated or, if
not reasonably practicable to be removed or eliminated, insured over by
an appropriate title insurance endorsement, all in a manner reasonably
satisfactory to DFA.
(d) If, due to an Unpermitted Encumbrance or Survey Defect,
the present use or value of the real property is adversely affected (as
either are reasonably determined by the parties), Suiza and SDG shall
indemnify DFA in accordance with Section 9 hereof against Damages (as
defined in Section 9.2).
(e) The parties agree that required governmental notices will
be supplemented as such parties learn the identity and location of such
properties. To the extent any real property is located in the State of
Florida and as required by applicable Florida statute, Holdings hereby
discloses to DFA the following: Radon is a naturally occurring
radioactive gas that, when it has accumulated in a building in
sufficient quantities, may present health risks to persons who are
exposed to it over time. Levels of radon that exceed federal and state
guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from your
county public health unit.
6.12 TRANSFER TAXES. SDG will pay, or will cause to be paid, the
transfer taxes related to the transfer of the Dairy Operations.
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SECTION 7
CONDITIONS PRECEDENT TO HOLDING'S OBLIGATION TO CLOSE
The obligation of each of Suiza, Holdings, SDG and Suiza Southeast to
complete the transactions contemplated hereby and take the other actions
required to be taken by them at the Closing is subject to the satisfaction, at
or prior to the Closing, of each of the following conditions (any of which may
be waived by Holdings, in whole or in part):
7.1. ACCURACY OF REPRESENTATIONS. All of DFA's representations and
warranties in this Agreement must have been accurate in all material respects
(if not qualified by materiality) or in all respects (if qualified by
materiality) as of the date of this Agreement and must be accurate in all
material respects (if not qualified by materiality) or in all respects (if
qualified by materiality) as of the Closing Date as if made on the Closing Date,
except where the failure of any representation and warranty to be accurate would
not reasonably be expected to have an SDG Material Adverse Effect.
7.2. DFA'S OR MID-AM'S PERFORMANCE.
(a) All of the covenants and obligations that any DFA Company
is required to perform or to comply with pursuant to this Agreement at
or prior to the Closing must have been duly performed and complied with
in all material respects, except where the failure to perform or comply
with any covenant or obligation would not reasonably be expected to
have a SDG Material Adverse Effect.
(b) Each document required to be delivered by any DFA Company
pursuant to Section 2.4 and under the Xxxx of Sale must have been
delivered.
7.3. CONSENTS. Any Consents that Suiza, Holdings, SDG, Suiza Southeast
or any DFA Company may be required to obtain to consummate the transactions
contemplated hereby must have been obtained and must be in full force and
effect, except where the failure to obtain such Consent would not result in a
SDG Material Adverse Effect or Xxxxx Material Adverse Effect.
7.4. NO PROCEEDINGS. Since the date of this Agreement, there must not
have been commenced or threatened against Suiza, SDG, Holdings or Suiza
Southeast, or against any Person affiliated with Suiza, SDG, Holdings or Suiza
Southeast, any Proceeding (a) involving any challenge to, or seeking damages or
other relief in connection with, any of the transactions contemplated hereby, or
(b) that may have the effect of preventing or making illegal any of the
transactions contemplated hereby.
7.5. NO PROHIBITION. Neither the consummation nor the performance of
any of the transactions contemplated hereby will, directly or indirectly (with
or without notice or lapse of time) result in a material violation of any
applicable Legal Requirement or Order that would cause Suiza or any of its
Affiliates to suffer any material adverse effect.
7.6. CLOSING CERTIFICATE. Each DFA Company shall have delivered to
Holdings a closing certificate, substantially in the form agreed to by Holdings
and DFA.
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7.7. ACQUISITION OF XXXX FOODS. All conditions to the acquisition by
Suiza or one of its Affiliates of Xxxx Foods (other than consummation of the
transactions contemplated hereby) shall have been satisfied or waived, and the
consummation of such acquisition shall occur simultaneously with the Closing on
the Closing Date.
SECTION 8
CONDITIONS PRECEDENT TO DFA'S OBLIGATION TO CLOSE
The obligation of the DFA Companies to complete the transactions
contemplated hereby and take the other actions required to be taken by them at
the Closing is subject to the satisfaction, at or prior to the Closing, of each
of the following conditions (any of which may be waived by DFA, in whole or in
part).
8.1. ACCURACY OF REPRESENTATIONS. All of the representations and
warranties of Suiza, Holdings, SDG and Suiza Southeast in this Agreement must
have been accurate in all material respects (if not qualified by materiality) or
in all respects (if qualified by materiality) as of the date of this Agreement
and must, along with the representations and warranties of Suiza and SDG in the
Xxxx of Sale, be accurate in all material respects (if not qualified by
materiality) or in all respects (if qualified by materiality) as of the Closing
Date as if made on the Closing Date, except where the failure of any
representation and warranty to be accurate would not reasonably be expected to
have a DFA Material Adverse Effect or a Transaction Material Adverse Effect.
8.2. SDG'S PERFORMANCE.
(a) All of the covenants and obligations that any of Suiza,
Holdings, SDG or Suiza Southeast is required to perform or to comply
with pursuant to this Agreement at or prior to the Closing must have
been duly performed and complied with in all material respects, except
where the failure to perform or comply with any covenant or obligation
would not reasonably be expected to have a DFA Material Adverse Effect
or a Transaction Material Adverse Effect.
(b) Each document required to be delivered by any of Suiza or
Xxxx Foods or any of their respective Affiliates pursuant to Section
2.4 and under the Xxxx of Sale must have been delivered.
8.3. ABSENCE OF MATERIAL ADVERSE EFFECTS. Since the date of this
Agreement, no Transaction Material Adverse Effect shall have occurred that is
continuing.
8.4. CONSENTS. Any Consents that any DFA Company, Suiza, Holdings, SDG
or Suiza Southeast may be required to obtain to consummate the transactions
contemplated hereby must have been obtained and must be in full force and
effect, except where the failure to obtain such Consent would not result in a
DFA Material Adverse Effect or a Transaction Material Adverse Effect.
8.5. NO PROCEEDINGS. Since the date of this Agreement, there must not
have been commenced or threatened against any DFA Company, or against any Person
affiliated with any
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DFA Company, any Proceeding (a) involving any challenge to, or seeking damages
or other relief in connection with, any of the transactions contemplated hereby,
or (b) that may have the effect of preventing or making illegal any of the
transactions contemplated hereby.
8.6. NO PROHIBITION. Neither the consummation nor the performance of
any of the transactions contemplated hereby will, directly or indirectly (with
or without notice or lapse of time) result in a material violation of any
applicable Legal Requirement or Order that would cause any DFA Company or any
Person affiliated with any DFA Company to suffer any material adverse effect.
8.7. CLOSING CERTIFICATES. Holdings shall have delivered to DFA a
closing certificate, substantially in the form agreed to by Holdings and DFA.
8.8. ACQUISITION OF XXXX FOODS. All conditions to the acquisition by
Suiza or one of its Affiliates of Xxxx Foods (other than consummation of the
transactions contemplated hereby) shall have been satisfied or waived, and the
consummation of such acquisition shall occur simultaneously with the Closing on
the Closing Date.
SECTION 9
INDEMNIFICATION; REMEDIES
9.1. REPRESENTATIONS; SURVIVAL. Except for the express representations
and warranties contained in Section 3 and Section 4 and in any certificate
delivered pursuant to this Agreement, or contained in Section 3 and Section 4 of
the Xxxx of Sale, none of the parties to this Agreement are making any
representation or warranty whatsoever, express or implied, including but not
limited to any implied warranty or representation as to condition,
merchantability or suitability, as to any of the Dairy Assets. It is understood
that, except as otherwise specified in this Agreement or in the Xxxx of Sale and
except to the extent included within or incorporated into any Disclosure Letter,
any cost estimates, projections or other predictions, any data, any financial
information or any memoranda or offering materials or presentations provided or
addressed to any party to this Agreement or any other Person are not and shall
not be deemed to be or to include representations or warranties of any party to
this Agreement or the Xxxx of Sale. Except as otherwise provided in this Section
9.1, all representations and warranties in this Agreement and the Xxxx of Sale
and any other certificate or document delivered pursuant to this Agreement or
the Xxxx of Sale will terminate eighteen months after the Closing; provided,
however, that (a) the representations and warranties set forth in Sections
4.1(c)(i), 4.1(c)(iii) and 4.1(c)(iv) of the Xxxx of Sale will survive until the
expiration of the applicable statute of limitations for any such violation,
breach or other matter that is the subject of such representations and
warranties, (b) if any breach of the representations and warranties set forth
herein, or in Sections 3.1, 4.1, 4.7, 4.9, 4.10, 4.11 or 4.15 of the Xxxx of
Sale is based on a violation of any Legal Requirement, then such representations
and warranties and any claim for indemnification applicable to such a violation
shall survive for the longer of eighteen months from the Closing Date and the
applicable statute of limitation with respect thereto; and (c) with respect to
the representations and warranties set forth in Sections 3.2, 4.4 and 4.5(b) of
the Xxxx of Sale, such representations and warranties and any claim for
indemnification with respect thereto shall survive indefinitely. Notwithstanding
the foregoing, any claim for indemnification that is asserted by written notice
as provided in
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Section 9.2 within the applicable survival period shall survive until resolved
by the parties or pursuant to a final non-appealable judicial determination. The
representations and warranties contained in this Agreement and in the Xxxx of
Sale shall not be affected by any investigation, verification or examination by
any party hereto or by anyone on behalf of any such party. All covenants and
agreements contained in this Agreement, in the Xxxx of Sale or in any document
delivered pursuant hereto shall be deemed to have been relied upon by the
parties hereto and shall survive the Closing until fully performed. Without
limiting the foregoing, the obligation of Suiza and SDG to indemnify DFA and its
Affiliates from and against the Excluded Liabilities, and the obligation of DFA
to indemnify Suiza and its Affiliates from and against the Dairy Liabilities,
shall each survive indefinitely, All representations and warranties set forth
herein and in the Xxxx of Sale shall be deemed to have been relied upon by the
parties hereto and to the Xxxx of Sale.
9.2. INDEMNIFICATION AND PAYMENT OF DAMAGES BY SUIZA AND SDG.
Notwithstanding any investigation by DFA or its Representatives, Suiza and SDG,
jointly and severally, will indemnify, defend and hold harmless DFA, its
Affiliates and their respective directors, officers, employees and agents for,
and will pay to such party the amount of, any loss, liability, claim, damage
(including incidental and consequential damages), expense (including costs of
investigation and defense and reasonable attorneys' fees) or diminution of
value, whether or not involving a third-party claim (collectively, "DAMAGES"),
arising, directly or indirectly, from or in connection with:
(a) any breach of any representation or warranty made by
Suiza, Holdings and SDG in this Agreement, or by Suiza and SDG in the
Xxxx of Sale, or in any certificate delivered by Suiza, Holdings, SDG
or Suiza Southeast pursuant to this Agreement or the Xxxx of Sale that
survives the Closing in accordance with Section 9.1 or any allegation
by a third party that, if true, would constitute such a breach;
provided that any claim for indemnification pursuant to this
subparagraph (a) is made within the time period specified in Section
9.1 for the survival of the applicable representation or warranty that
has been breached or is the subject of the third party claim; provided
further, that for purposes of determining any such breach, any
materiality qualifiers appearing in such representations and warranties
will not be given effect;
(b) any Excluded Liability;
(c) any breach by Suiza, Holdings, SDG or Suiza Southeast or
any of their Affiliates of any covenant or obligation of such Person in
this Agreement or the Xxxx of Sale;
(c) any Unpermitted Encumbrances or Survey Defects, as
contemplated in Section 6.11(d); or
(d) any claim by any Person, including, without limitation,
for brokerage or finder's fees or commissions or similar payments based
upon any agreement or understanding alleged to have been made by any
such Person with Suiza, Holdings, SDG or Suiza Southeast (or any Person
acting on their behalf) in connection with any of the transactions
contemplated hereby.
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9.3. INDEMNIFICATION AND PAYMENT OF DAMAGES BY DFA. Notwithstanding any
investigation by Suiza or its Representatives, DFA will indemnify, defend and
hold harmless Suiza, Holdings, SDG and Suiza Southeast for, and will pay to
Suiza, Holdings, SDG and Suiza Southeast, their respective Affiliates and their
respective directors, officers, employees and agents for, and will pay to such
party the amount of, any Damages, arising, directly or indirectly, from or in
connection with:
(a) any breach of any representation or warranty made by DFA
in this Agreement or in the Xxxx of Sale or in any certificate
delivered by any DFA Company pursuant to this Agreement or the Xxxx of
Sale that survives the Closing in accordance with Section 9.1 or any
allegation by a third party that, if true, would constitute such a
breach; provided that any claim for indemnification pursuant to this
subparagraph (a) is made within the time period specified in Section
9.1 for the survival of the applicable representation or warranty that
has been breached or is the subject of the third party claim; provided
further, that for purposes of determining any such breach, any
materiality qualifiers appearing in such representations and warranties
will not be given effect;
(b) any Dairy Liability;
(c) any breach by any DFA Company of any covenant or
obligation of such Person in this Agreement or the Xxxx of Sale; or
(d) any claim by any Person, including, without limitation,
for brokerage or finder's fees or commissions or similar payments based
upon any agreement or understanding alleged to have been made by any
such Person with any DFA Company (or any Person acting on their behalf)
in connection with any of the transactions contemplated hereby.
9.4. LIMITATIONS ON AMOUNT.
(a) In determining the amount of Damages for which an
indemnified person is entitled to indemnification under Section 9.2 or
Section 9.3, any insurance proceeds or tax benefits that are realized
or that could reasonably be expected to be realized by such indemnified
person (if a claim were properly pursued under the relevant insurance
arrangements or Legal Requirements), as well as any costs associated
with obtaining such insurance proceeds or tax benefits, will be
considered.
(b) DFA will be entitled to indemnification from Suiza and SDG
under paragraph (a) of Section 9.2 only to the extent that the
aggregate amount of indemnifiable Damages incurred by DFA under such
clause exceeds $1,000,000.
(c) Suiza and SDG will be entitled to indemnification from DFA
under paragraph (a) of Section 9.3 only to the extent and in the amount
that the aggregate amount of indemnifiable Damages incurred by Suiza
and SDG under such clause exceeds $1,000,000.
(d) The maximum amount to which (i) DFA will be entitled to
indemnification under paragraph (a) of Section 9.2, and (ii) Suiza and
SDG will be
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entitled to indemnification under paragraph (a) of Section 9.3, is
limited to $10,000,000 for each such clause (i) and (ii) of this
Section 9.4(d).
(e) Notwithstanding the foregoing, the limitations set forth
in Section 9.4(b), (c) and (d) will not apply to Damages arising from
or in connection with a breach or alleged breach of (i) the
representations and warranties of DFA set forth in Section 3.2 of the
Xxxx of Sale, (ii) the representations and warranties of Suiza and SDG
set forth in Section 4.4 and 4.5(b) of the Xxxx of Sale, (iii) the
covenants and agreements concerning the Dairy Liabilities or the
Excluded Liabilities, or (iv) the covenants and agreements set forth in
Section 6.11(d).
9.5. PROCEDURE FOR INDEMNIFICATION - THIRD PARTY CLAIMS.
(a) Promptly after receipt by an Indemnified Person under
Section 9.2 or 9.3 of notice of the commencement of any Proceeding
against it, such Indemnified Person will, if a claim is to be made
against an indemnifying party under such Section, give notice to the
indemnifying party of the commencement of such claim, but the failure
to notify the indemnifying party will not relieve the indemnifying
party of any liability that it may have to any Indemnified Person,
except to the extent that the indemnifying party demonstrates that the
defense of such action is prejudiced by the Indemnified Person's
failure to give such notice.
(b) If any Proceeding referred to in Section 9.5(a) is brought
against an Indemnified Person and it gives notice to the indemnifying
party of the commencement of such Proceeding, the indemnifying party
will, to the extent that it wishes (unless (i) the indemnifying party
is also a party to such Proceeding and the Indemnified Person
determines in good faith that joint representation would be
inappropriate, or (ii) the indemnifying party fails to provide
reasonable assurance to the Indemnified Person of its financial
capacity to defend such Proceeding and provide indemnification with
respect to such Proceeding), assume the defense of such Proceeding with
counsel satisfactory to the Indemnified Person and, after notice from
the indemnifying party to the Indemnified Person of its election to
assume the defense of such Proceeding and an acknowledgment of its
indemnification obligation with respect thereto, the indemnifying party
will not, as long as it diligently conducts such defense, be liable to
the Indemnified Person under this Section 9 for any fees of other
counsel or any other expenses with respect to the defense of such
Proceeding, in each case subsequently incurred by the Indemnified
Person in connection with the defense of such Proceeding, other than
reasonable costs of investigation. If the indemnifying party assumes
the defense of a Proceeding in accordance with the preceding sentence,
(i) no compromise or settlement of such claims may be effected by the
indemnifying party without the Indemnified Person's consent unless (A)
there is no finding or admission of any violation of Legal Requirements
or any violation of the rights of any Person and no effect on any other
claims that may be made against the Indemnified Person, and (B) the
sole relief provided is monetary damages that are paid in full by the
indemnifying party and (ii) the Indemnified Person will have no
liability with respect to any compromise or settlement of such claims
effected without its consent. If notice is given to an indemnifying
party of the commencement of any Proceeding and the indemnifying party
does not, within ten days after the Indemnified
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Person's notice is given, give notice to the Indemnified Person of its
election to assume the defense of such Proceeding, the indemnifying
party will be bound by any determination made in such Proceeding or any
compromise or settlement reasonably effected by the Indemnified Person
prior to notification by the indemnifying party, after such ten day
period, if any, of its election to assume the defense thereof.
(c) Notwithstanding the foregoing, if an Indemnified Person
determines in good faith that there is a reasonable probability that a
Proceeding may adversely affect it or its Affiliates other than as a
result of monetary damages for which it would be entitled to
indemnification under this Agreement, the Indemnified Person may, by
notice to the indemnifying party, assume the exclusive right to defend,
compromise, or settle such Proceeding (at the expense of the
indemnifying party), but the indemnifying party will not be bound by
any determination of a Proceeding so defended or any compromise or
settlement effected without its consent (which may not be unreasonably
withheld).
9.6. PROCEDURE FOR INDEMNIFICATION - OTHER CLAIMS. A claim for
indemnification for any matter not involving a third-party claim may be asserted
by notice to the party from whom indemnification is sought.
9.7. MITIGATION. Upon and after becoming aware of any event that could
reasonably be expected to give rise to any Damages that are indemnifiable under
this Section 9, the Indemnified Person shall make reasonable efforts to mitigate
such Damages.
9.8. EXCLUSIVE REMEDY. The parties acknowledge and agree that, upon and
following the Closing, the indemnification rights provided in this Section 9
shall be the sole and exclusive remedy available to the parties for any claim or
cause of action arising out of any breach of this Agreement and the Xxxx of
Sale.
SECTION 10
TERMINATION
10.1. TERMINATION EVENTS. This Agreement may, by notice given prior to
or at the Closing, be terminated:
(a) by Holdings if satisfaction of a condition in Section 7
has not been fulfilled prior to the Termination Date (other than
through the failure of any of Suiza, Holdings, SDG or Suiza Southeast
to comply with its obligations under this Agreement) and Holdings has
not waived such condition on or before the Termination Date or (ii) by
DFA, if satisfaction of a condition in Section 8 has not been fulfilled
prior to the Termination Date (other than through the failure of any
DFA Company to comply with its respective obligations under this
Agreement) and DFA has not waived such condition on or before the
Termination Date;
(b) by mutual consent of Holdings and DFA; or
(c) by either Holdings or DFA if the Closing has not occurred
(other than through the failure of any party seeking to terminate this
Agreement or its affiliates to
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comply fully with its obligations under this Agreement) on or before
the termination date identified in the Agreement and Plan of Merger
between Suiza and Xxxx Foods dated as of April 4, 2001 as amended, (the
"TERMINATION DATE") or such later date as the parties may agree upon.
10.2. EFFECT OF TERMINATION. Each party's right of termination under
Section 10.1 is in addition to any other rights it may have under this Agreement
or otherwise, and the exercise of a right of termination will not be an election
of remedies. If this Agreement is terminated pursuant to Section 10.1, all
further obligations of the parties under this Agreement will terminate and no
party will have any liability or obligation (for reimbursement of expenses or
otherwise) to any other party, except that the obligations in Sections 5.5 and
6.8 will survive and except that each party will remain liable to the other
parties for any breach of this Agreement by such party occurring prior to such
termination and all legal remedies of the other parties in respect of any such
breach will survive such termination unimpaired.
SECTION 11
OTHER AGREEMENTS
11.1. EMPLOYEE MATTERS. As soon as practicable after the date of
hereof, Holdings and DFA will reach an agreement concerning the specific terms
and conditions under which, and to the extent, the employees of the Dairy
Operations will be transferred to DFA at the Closing (including employee benefit
plan matters), which terms will be reasonable and customary for transactions
contemplated hereby.
11.2. LIMITED PARTNERSHIP AGREEMENT.
(a) Except as otherwise provided in Section 11.2(b), effective
as of the Closing, (a) the Limited Partnership Agreement shall be
terminated and no party thereto shall have any continuing liability or
obligation thereunder, and (b) each party hereby fully and completely
releases and forever discharges each other and all other parties to the
Limited Partnership Agreement, and the officers, directors, agents,
successors and assigns of such parties from any liability, obligation
or claim under the Limited Partnership Agreement, whether known or
unknown and whether arising in contract or in tort.
(b) Notwithstanding the foregoing, the provisions of sections
4.4(b), 4.4(c), 7.10, 7.11 and articles V, VI, IX, X and, to the extent
applicable in interpreting and enforcing the foregoing provisions,
article XIV of the Limited Partnership Agreement shall survive the
Closing in accordance with their respective terms, for the sole purpose
of indemnification and determining profit and loss and related taxes
and allocations for the period from and including January 1, 2001
through the Closing.
11.3 WARN ACT. SDG shall comply, or shall cause the applicable
Affiliate of SDG to comply, with all requirements of the Worker Adjustment and
Retraining Notification Act, as amended, with respect to the sale of the Dairy
Assets and shall make all required disclosure and
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give all required notices thereunder to Governmental Bodies and the
affected employees who are employed on the day of and immediately prior
to the Closing Date.
SECTION 12
GENERAL PROVISIONS
12.1. PUBLIC ANNOUNCEMENTS. So long as this Agreement is in effect,
Holdings, DFA and Mid-Am agree to consult with each other in issuing any press
release or otherwise making any public statement with respect to the
transactions contemplated by this Agreement, and none of the parties to this
Agreement will issue any press release or make any public statement prior to
such consultation, except as may be required by Legal Requirements.
12.2. NOTICES. All notices, consents, waivers, and other communications
under this Agreement must be in writing and will be deemed to have been duly
given when (a) delivered by hand (with written confirmation of receipt), (b)
sent by telecopier (with written confirmation of receipt), or (c) when received
by the addressee, if sent by a nationally recognized overnight delivery service,
in each case to the appropriate addresses and telecopier numbers set forth below
(or to such other addresses and telecopier numbers as a party may designate by
notice to the other parties):
If to any DFA Company: with a copy to:
Dairy Farmers of America, Inc. XxXxxxxxx, Will & Xxxxx
Northpointe Tower, Suite 1000 227 X. Xxxxxx
00000 X. Xxxxxxxxx Xxxxx X-0 Xxxxx 0000
Xxxxxx Xxxx, XX 00000 Xxxxxxx, XX 00000
Attention: President and Attention: Xxxxxxx X. Xxxxxx, P.C.
General Counsel and Xxxx Xxxxxxxx
Telecopy: (000) 000-0000 Telecopy: (000) 000-0000
If to Suiza, Holdings, SDG or
Suiza Southeast: with a copy to:
c/o Suiza Foods Corporation Xxxxxx & Xxxx, L.L.P.
0000 XxXxxxxx Xxx., XX 00, Xxxxx 0000 0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000 Xxxxxx, Xxxxx 00000
Attention: Chief Executive Officer Attention: Xxxxxxx X. XxXxxxxxx
and General Counsel Telecopy: (000) 000-0000
Telecopy: (000) 000-0000
12.3. ATTORNEY'S FEES AND COSTS. In the event of a breach by any party
to this Agreement and commencement of a subsequent legal action in a court of
law or forum of arbitration, or in the event legal counsel is consulted in the
event of any such breach or in anticipation of any such prospective legal
action, the prevailing party in any such dispute shall be entitled to
reimbursement of reasonable attorney's fees and expenses.
12.4. FURTHER ASSURANCES. The parties agree (a) to furnish upon request
to each other such further information, (b) to execute and deliver to each other
such other documents, and
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(c) to do such other acts and things, all as the other party may reasonably
request for the purpose of carrying out the intent of this Agreement and the
documents referred to in this Agreement. Without limiting the foregoing,
following the Closing, Suiza and its Affiliates will refer to DFA as promptly as
practicable any telephone calls, letters, orders, notices, requests, inquiries
and other communications relating to the Dairy Operations, and otherwise assist
DFA in good faith in the orderly transfer of the Dairy Operations to DFA.
12.5. WAIVER. The rights and remedies of the parties to this Agreement
are cumulative and not alternative. Neither the failure nor any delay by any
party in exercising any right, power, or privilege under this Agreement or the
documents referred to in this Agreement will operate as a waiver of such right,
power, or privilege, and no single or partial exercise of any such right, power,
or privilege will preclude any other or further exercise of such right, power,
or privilege or the exercise of any other right, power, or privilege. To the
maximum extent permitted by applicable law, (a) no claim or right arising out of
this Agreement or the documents referred to in this Agreement can be discharged
by one party, in whole or in part, by a waiver or renunciation of the claim or
right unless in a writing signed by the other party; (b) no waiver that may be
given by a party will be applicable except in the specific instance for which it
is given; and (c) no notice to or demand on one party will be deemed to be a
waiver of any obligation of such party or of the right of the party giving such
notice or demand to take further action without notice or demand as provided in
this Agreement or the documents referred to in this Agreement.
12.6. ENTIRE AGREEMENT AND MODIFICATION. This Agreement supersedes all
prior agreements between the parties with respect to its subject matter and
constitutes (along with the documents referred to in this Agreement, including
the Xxxx of Sale and the Note) a complete and exclusive statement of the terms
of the agreement between the parties with respect to its subject matter. This
Agreement may not be amended except by a written agreement executed by the party
to be charged with the amendment.
12.7. ASSIGNMENTS, SUCCESSORS AND NO THIRD PARTY RIGHTS. No party may
assign any of its rights under this Agreement without the prior consent of the
other parties; provided, that DFA shall be entitled to assign its rights and
obligations under this Agreement to any Affiliate of DFA without the consent of
any other party hereto; provided, however, that DFA shall in all events remain
liable hereunder. Subject to the preceding sentence, this Agreement will apply
to, be binding in all respects upon, and inure to the benefit of the successors
and permitted assigns of the parties. Except as set forth in Section 12.8,
nothing expressed or referred to in this Agreement will be construed to give any
Person other than the parties to this Agreement any legal or equitable right,
remedy, or claim under or with respect to this Agreement or any provision of
this Agreement. Except as set forth in Section 9, this Agreement and all of its
provisions and conditions are for the sole and exclusive benefit of the parties
to this Agreement and their successors and assigns.
12.8. SPECIFIC PERFORMANCE. The parties hereby acknowledge and agree
that the failure of any party to perform its agreements and covenants hereunder,
including its failure to take all required actions on its part necessary to
consummate the transactions contemplated hereby, will cause irreparable injury
to the other parties for which damages, even if available, will not be an
adequate remedy. Accordingly, each party hereby consents to the issuance of
injunctive relief by any court of competent jurisdiction to compel performance
of such party's
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obligations and to the granting by any court of the remedy of specific
performance of its obligations hereunder.
12.9. SEVERABILITY. If any provision of this Agreement is held invalid
or unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
12.10. SECTION HEADINGS, CONSTRUCTION. The headings of Sections in this
Agreement are provided for convenience only and will not affect its construction
or interpretation. All references to "SECTION" or "SECTIONS" refer to the
corresponding Section or Sections of this Agreement. All words used in this
Agreement will be construed to be of such gender or number as the circumstances
require. Unless otherwise expressly provided, the word "including" does not
limit the preceding words or terms.
12.11. TIME OF ESSENCE. With regard to all dates and time periods set
forth or referred to in this Agreement, time is of the essence.
12.12. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE SUBSTANTIVE LAWS
OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY CHOICE-OF-LAW RULES THAT
MAY REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
12.13. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
12.14. DISPUTE RESOLUTION. Except with respect to the matters set forth
in Sections 2.2(c) and 2.2(d), which will be resolved as provided in such
Section, if any dispute arises out of this Agreement or any of the other
documents to be delivered hereunder (including under the Xxxx of Sale), the
parties agree not to commence any lawsuit with respect to such dispute until the
following procedures have been completed:
(a) The party believing a dispute to exist will give the other
parties written notice thereof, setting forth in reasonable detail the
facts alleged to give rise to such dispute, the relevant contractual
provisions, the nature of any claimed default or breach and a statement
of the manner in which such party believes the dispute should be
resolved.
(b) Within twenty (20) days after receipt of such notice, each
party against whom relief is sought in connection with such dispute
will deliver a written response, setting forth in reasonable detail its
view of the facts alleged to give rise to such dispute, the relevant
contractual provisions, the nature of the claimed default or breach and
a statement of the manner in which such party believes the dispute
should be resolved.
(c) If the parties do not agree on the manner in which the
dispute should be resolved, they will arrange to hold a meeting within
ten (10) days after delivery of the
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response. Each party will have in attendance at such meeting a
representative with authority to bind the represented party to any
agreement resolving the dispute. At the meeting (and any adjournments
thereof), the parties will negotiate in good faith in an attempt to
agree as to whether a dispute exists, the exact nature of the dispute
and the manner in which the dispute should be resolved. If deemed
appropriate by the parties, a professional mediator may be engaged to
assist in resolving the dispute. Any resolution of the dispute will be
evidenced by a written agreement setting forth in reasonable detail the
actions to be taken by each party. If no such written agreement is
reached within twenty (20) days after the first meeting, the parties
may pursue any legal remedies available to them with respect to such
dispute.
(d) Notwithstanding the foregoing, to the extent necessary to
prevent irreparable harm, either party may commence an action in a
court of competent jurisdiction seeking a temporary restraining order,
preliminary injunction or other injunctive relief without complying
with the foregoing dispute resolution procedures.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
SUIZA FOODS CORPORATION
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxx
-----------------------------------------
Title: Chairman and Chief Executive Officer
----------------------------------------
SUIZA DAIRY GROUP HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxx
-----------------------------------------
Title: Chief Executive Officer
----------------------------------------
SUIZA DAIRY GROUP, L.P.
By: SUIZA MANAGEMENT CORPORATION,
the sole general partner
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
-----------------------------------
Title: Chief Executive Officer
---------------------------------
SUIZA SOUTHEAST, LLC
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxx
-----------------------------------------
Title: Chief Executive Officer
---------------------------------------
DAIRY FARMERS OF AMERICA, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------------------------
Name: Xxxx Xxxxxx
----------------------------------------
Title: President and Chief Executive Officer
----------------------------------------
Mid-Am is executing this Agreement solely to indicate its agreement to
be bound by the provisions of Sections 2.1(ii), 2.2(a)(ii), 2.2(b), 2.2(c),
2.2(d), 5.1, 5.2, 5.3, 5.4, 5.5, 7.6, Section 9, 10.1, 10.2, 11 and, to the
extent applicable in interpreting or enforcing the foregoing
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provisions, Section 1 and Section 12, and has no obligations under this
Agreement except under such Sections.
MID-AM CAPITAL, L.L.C.
By: Xxxxxx X. Xxx
----------------------------------------------------------
Name: Xxxxxx X. Xxx
--------------------------------------------------
Title: Chief Executive Officer and Treasurer
-------------------------------------------------
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