Exhibit 1
STOCK PURCHASE AND
------------------
UNIT SUBSCRIPTION AGREEMENT
---------------------------
THIS STOCK PURCHASE AND UNIT SUBSCRIPTION AGREEMENT (this "Agreement")
---------
is made as of _____ __, 2001, by and between M-Foods Investors, LLC, a Delaware
limited liability company ("Investors"), and the Persons named on the signature
---------
page hereto (each a "Shareholder", and collectively the "Xxxxxxx Family
----------- --------------
Securityholders").
---------------
WHEREAS, the Xxxxxxx Family Securityholders are shareholders of
Xxxxxxx Foods, Inc., a Minnesota corporation (the "Company"), and one of several
-------
Persons who are or will be investors of Investors;
WHEREAS, the Company has entered into an Agreement and Plan of Merger
with M-Foods Holdings, Inc., a Delaware corporation, and a wholly owned
subsidiary of Investors ("Holdings"), and Protein Acquisition Corp., a Minnesota
--------
corporation, and a wholly owned subsidiary of Holdings ("Merger Sub"), dated as
----------
of December 21, 2000, as amended from time to time in accordance with its terms
(the "Merger Agreement"), pursuant to which Merger Sub shall be merged with and
----------------
into the Company (the "Acquisition"), in accordance with the terms and
-----------
conditions of the Merger Agreement and the relevant provisions of the MBCA (as
defined in the Merger Agreement), and the surviving corporation shall be the
Company;
WHEREAS, prior to the consummation of the transactions contemplated by
this Agreement and the Merger Agreement, each Shareholder is the record and
beneficial owner of the number of shares of the Company's common stock, par
value $0.01 per share (the " Shares"), set forth opposite its name on the
-------
Schedule I attached hereto;
----------
WHEREAS, on the terms and subject to the conditions hereof, Investors
desires to acquire from each Shareholder, and each Shareholder desires to sell
to Investors, certain of its Shares (the "Purchased Shares") (less a number of
----------------
Shares to be contributed in exchange for Units); and
WHEREAS, on the terms and subject to the conditions hereof and
pursuant to Section 721(a) of the Internal Revenue Code, the Xxxxxxx Family
Securityholders also desire to contribute certain of the Shares (the
"Contributed Shares") in exchange for Investors' Class A Units (the "Units"), in
------------------- -----
the amounts set forth on Schedule II attached hereto.
-----------
NOW, THEREFORE, in order to implement the foregoing and in
consideration of the mutual representations, warranties, covenants and
agreements contained herein, the parties hereto agree as follows:
1. Definitions.
-----------
1.1 Acquisition. The term "Acquisition" shall have the meaning set forth
--- ----------- -----------
in the preface.
1.2 Agreement. The term "Agreement" shall have the meaning set forth in
--- ---------
the preface.
1.3 Closing. The "Closing" for the sale and purchase of the Shares and
--- -------
the contribution of Shares in exchange for Units hereunder shall occur
immediately prior to or in connection with the consummation of the Acquisition.
1.4 Closing Date. The term "Closing Date" shall mean the date on which
--- ------------
the Closing occurs.
1.5 Closing Transactions. The term "Closing Transactions" shall
--- --------------------
have the meaning set forth in Section 2.3.
-----------
1.6 Company. The term "Company" shall have the meaning set forth in the
--- -------
preface.
1.7 Contributed Shares. The term "Contributed Shares" shall have the
--- ------------------
meaning set forth in Section 3.1.
-----------
1.8 Cost. The term "Cost" shall mean, with respect to Units, the value
--- ----
per unit contributed by the Xxxxxxx Family Securityholders (as proportionately
adjusted for all subsequent distributions of units and other recapitalizations).
1.9 Intentionally Omitted.
--- ----------------------
1.10 Holdings. The term "Holdings" shall have the meaning set forth in the
---- --------
preface.
1.11 Merger Agreement. The term "Merger Agreement" shall have the meaning
---- ----------------
set forth in the preface.
1.12 Merger Sub. The term "Merger Sub" shall have the meaning set forth in
---- ----------
the preface.
1.13 Xxxxxxx Family Securityholders. The term "Xxxxxxx Family
---- ------------------------------
Securityholders" shall have the meaning set forth in the preface.
1.14 Permitted Transferee. The term "Permitted Transferee" means any
---- --------------------
transferee of Units pursuant to clauses (e), (f) or (h)(1) and (h)(2) the
definition of "Exempt Transfer" as defined in the Securityholders Agreement.
1.15 Person. The term "Person" shall mean any individual, corporation,
---- ------
partnership, limited liability company, trust, joint stock company, business
trust, unincorporated association, joint venture, governmental authority or
other entity of any nature whatsoever.
2
1.16 Purchased Shares. The term " Purchased Shares" shall have the meaning
---- ----------------
set forth in the preface.
1.17 Securities Act. The term "Securities Act" shall mean the Securities
---- --------------
Act of 1933, as amended, and all rules and regulations promulgated thereunder,
as the same may be amended from time to time.
1.18 Securityholders Agreement. The term "Securityholders Agreement" shall
---- -------------------------
mean the Securityholders Agreement dated as of the Closing Date among the
Company and its securityholders, as it may be amended or supplemented thereafter
from time to time.
1.19 Shareholder. The term "Shareholder" shall have the meaning set forth
---- -----------
in the preface.
1.20 Share Purchase Price. The term "Share Purchase Price" shall have the
---- --------------------
meaning set forth in Section 2.2.
------------
1.21 Shares. The term "Shares" shall have the meaning set forth in the
---- ------
preface.
1.22 Transaction Documents. The term "Transaction Documents" means,
---- ---------------------
collectively, (i) each of the Management Stock Purchase and Unit Subscription
Agreements executed on or about the date hereof by certain executives of the
Company, (ii) the amended and restated limited liability company agreement of
the Company as in effect immediately after the Closing, (iii) the
Securityholders Agreement, and (iv) each of the other agreements, documents and
instruments executed in connection with the Merger Agreement and the
transactions contemplated thereby.
2. Purchase and Sale of Shares.
----------------------------
2.1 Purchase and Sale of the Shares. At the Closing, upon the terms and
--- -------------------------------
subject to the conditions set forth in this Agreement, each Shareholder shall
sell, assign, transfer and convey to Investors, and Investors shall purchase and
acquire from each Shareholder, its Purchased Shares (less the number of
Contributed Shares set forth in Section 3.1 below) against payment at the
-----------
Closing of an aggregate amount equal to the Share Purchase Price by wire
transfer of immediately available funds to one or more accounts specified by the
Xxxxxxx Family Securityholders in a written notice to Investors prior to the
Closing Date.
2.2 Share Purchase Price. The aggregate purchase price for the Purchased
--- --------------------
Shares (the "Share Purchase Price") will consist of the payment of an amount of
--------------------
cash, equal to $30.10 per Purchased Share, as set forth on Schedule I.
----------
2.3 Closing Events. At the Closing, subject to the terms and conditions
--- --------------
set forth in this Agreement, the parties hereto shall consummate the following
"Closing Transactions":
---------------------
3
(a) The Xxxxxxx Family Securityholders shall deliver to Investors
stock certificates representing the Purchased Shares duly endorsed for transfer
or accompanied by duly executed stock powers or forms of assignment; and
(b) Investors shall deliver to the Xxxxxxx Family Securityholders the
amount of the Share Purchase Price by wire transfer of immediately available
funds to one or more accounts designated by the Xxxxxxx Family Securityholders
in writing to Investors prior to the Closing.
3. Contribution.
-------------
3.1 Contribution of Shares. Pursuant to the terms and subject to the
--- ----------------------
conditions set forth in this Agreement, each Shareholder hereby agrees to
contribute, and Investors hereby agrees to receive, such Shares (with a per
share value equal to $30.10) in the amounts as set forth on Schedule II attached
------------
hereto (the "Contributed Shares"), in exchange for the number of Units set forth
------------------
on Schedule II.
-----------
3.2 Closing Events. At the Closing, each Shareholder shall deliver to
--- --------------
Investors the number of Contributed Shares set forth on Schedule II; provided
----------- --------
that contribution to Investors of the Contributed Shares shall be evidenced by
the delivery by the Xxxxxxx Family Securityholders to Investors of stock
certificates representing such Contributed Shares duly endorsed for transfer or
accompanied by duly executed stock powers or forms of assignment.
4. Representations and Warranties.
------------------------------
4.1 Stock Purchase Representations of the Xxxxxxx Family Securityholders.
--- --------------------------------------------------------------------
Each Shareholder represents and warrants to Investors that the statements
contained in this Section 4.1 are correct and complete as of the date of this
-----------
Agreement, with respect to itself:
(a) Power and Authority. Each Shareholder is a duly organized, validly
-------------------
existing limited partnership, and each Shareholder is in good standing under the
laws of the jurisdiction of its formation. Each Shareholder has full power and
authority to execute and deliver this Agreement and perform his obligations
hereunder. This Agreement constitutes the valid and legally binding obligation
of the Shareholder, enforceable in accordance with its terms and conditions. No
Shareholder need give any notice to, make any filing with, or obtain any
authorization, consent or approval of any government or governmental agency in
order to consummate the transactions contemplated by this Agreement.
(b) Noncontravention. Neither the execution and the delivery of this
----------------
Agreement, nor the consummation of the transactions contemplated hereby, will
violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which any Shareholder is subject or conflict
with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate, modify,
or cancel, or require any notice under any agreement, contract,
4
lease, license, instrument, or other arrangement to which any Shareholder is a
party or by which it is bound or to which any of its assets is subject.
(c) Brokers' Fees. The Xxxxxxx Family Securityholders have no
-------------
liability or obligation to pay any fees or commissions to any broker, finder, or
agent with respect to the transactions contemplated by this Agreement for which
Investors could become liable or obligated.
(d) Capital Stock. Each Shareholder holds of record and owns
-------------
beneficially the number of Shares set forth next to its name on Schedule I, free
-----------
and clear of any restrictions on transfer (other than any restrictions under the
Securities Act and state securities laws), taxes, security interests, options,
warrants, purchase rights, contracts, commitments, equities, claims, and
demands. No Shareholder is a party to any option, warrant, purchase right, or
other contract or commitment that could require any such Shareholder to sell,
transfer, or otherwise dispose of any capital stock of the Company (other than
this Agreement). No Shareholder is a party to any voting trust, proxy, or other
agreement or understanding with respect to the voting of any capital stock of
Xxxxxxx.
4.2 Units Unregistered. The Xxxxxxx Family Securityholders acknowledge
--- ------------------
and represent that each Shareholder has been advised by Investors that:
(a) the offer and sale of the Units have not been registered under the
Securities Act;
(b) the Units must be held indefinitely and each Shareholder must
continue to bear the economic risk of the investment in the Units unless
the offer and sale of such Units are subsequently registered under the
Securities Act and all applicable state securities laws or an exemption
from such registration is available;
(c) there is no established market for the Units and it is not
anticipated that there will be any public market for the Units in the
foreseeable future;
(d) a restrictive legend in the form set forth below and the legends
set forth in the Securityholders Agreement shall be placed on the
certificates representing the Units:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO CERTAIN REPURCHASE OPTIONS AND OTHER
PROVISIONS SET FORTH IN A STOCK PURCHASE AND UNIT
SUBSCRIPTION AGREEMENT BETWEEN THE ISSUER AND
__________ DATED AS OF _______ __, 2001, AS AMENDED
AND MODIFIED FROM TIME TO TIME, A COPY OF WHICH MAY
BE OBTAINED BY THE HOLDER HEREOF AT THE ISSUER'S
PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE"; and
5
(e) a notation shall be made in the appropriate records of Investors
indicating that the Units are subject to restrictions on transfer and, if
Investors should at some time in the future engage the services of a
securities transfer agent, appropriate stop-transfer instructions will be
issued to such transfer agent with respect to the Units.
4.3 Additional Investment Representations. Each Xxxxxxx Family
--- -------------------------------------
Securityholder represents and warrants that:
(a) such Shareholder's financial situation is such that such
Shareholder can afford to bear the economic risk of holding the Units for
an indefinite period of time, has adequate means for providing for such
Shareholder's current needs and personal contingencies, and can afford to
suffer a complete loss of such Shareholder's investment in the Units;
(b) such Shareholder's knowledge and experience in financial and
business matters is such that such Shareholder is capable of evaluating the
merits and risks of the investment in the Units;
(c) such Shareholder understands that the Units are a speculative
investment which involves a high degree of risk of loss of such
Shareholder's investment therein, there are substantial restrictions on the
transferability of the Units and, on the Closing Date and for an indefinite
period following the Closing, there will be no public market for the Units
and, accordingly, it may not be possible for such Shareholder to liquidate
its investment in case of emergency, if at all;
(d) such Shareholder understands and has taken cognizance of all the
risk factors related to the purchase of the Units and, other than as set
forth in this Agreement, no representations or warranties have been made to
such Shareholder or its representatives concerning the Units or Investors
or their prospects or other matters;
(e) each Shareholder has been given the opportunity to examine all
documents and to ask questions of, and to receive answers from, Investors
and its representatives concerning Investors and its subsidiaries, the
Acquisition, the Securityholders Agreement, Investors' organizational
documents and the terms and conditions of the purchase of the Units and to
obtain any additional information which the such Shareholder deems
necessary;
(g) all information which such Shareholder has provided to Investors
and Investors' representatives concerning such Shareholder and such
Shareholder's financial position is complete and correct as of the date of
this Agreement; and
(h) such Shareholder is an "accredited investor" within the meaning of
Rule 501(a) under the Securities Act.
6
4.4 Representations of Investors. Investors represents to the Xxxxxxx
--- ----------------------------
Family Securityholders that the statements contained in this Section 4.4 are
-----------
correct and complete as of the date of this Agreement:
(a) Organization and Power. Investors is a limited liability company
----------------------
duly organized, validly existing and in good standing under the laws of the
State of Delaware, with full power and authority to enter into this Agreement
and perform its obligations hereunder.
(b) Authorization. The execution, delivery and performance of this
-------------
Agreement by Investors and the consummation of the transactions contemplated
hereby by Investors have been duly and validly authorized by all requisite
company action on the part of Investors, and no other proceedings on its part
are necessary to authorize the execution, delivery or performance of this
Agreement. This Agreement has been duly executed and delivered by Investors,
and this Agreement constitutes a valid and binding obligation of Investors,
enforceable in accordance with its terms and conditions. Investors need not
give any notice to, make any filing with, or obtain any authorization, consent
or approval of any government or governmental agency in order to consummate the
transactions contemplated by this Agreement.
(c) Noncontravention. Neither the execution and the delivery of this
----------------
Agreement, nor the consummation of the transactions contemplated hereby, will
violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which Investors is subject or any provision of
its charter or bylaws or conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other arrangement to which
Investors is a party or by which it is bound or to which any of its assets is
subject.
(d) Investment. Investors is not acquiring the Shares with a view to
----------
or for sale in connection with any distribution thereof within the meaning of
the Securities Act.
(e) Capitalization. As of immediately after the Closing, the entire
--------------
authorized capital stock of Investors consists of ______ Class A Units, _____
Class B Units and _____ Class C Units, of which ______ Class A Units, _____
Class B Units and _____ Class C Units are issued and outstanding and no Units
are held in treasury. All of the issued and outstanding Units have been duly
authorized, are validly issued, fully paid, and nonassessable. Except as set
forth in the Transaction Documents, there are no outstanding or authorized
options, warrants, purchase rights, subscription rights, conversion rights,
exchange rights, or other contracts or commitments that could require Investors
to issue, sell, or otherwise cause to become outstanding any of its Units.
Except as set forth in the Transaction Documents, there are no outstanding or
authorized stock appreciation, phantom stock, profit participation, or similar
rights with respect to Investors. Except as set forth in the Transaction
Documents, there are no voting trusts, proxies, or other agreements or
understandings with respect to the voting of the capital stock of Investors.
7
(e) Brokers' Fees. Other than fees payable to [Vestar Associates IV,
-------------
L.P. and Xxxxxxx, Xxxx Xxxxxxx & Xxxxxxxx], Investors has no liability or
obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement for which any of the
Xxxxxxx Family Securityholders could become liable or obligated.
5. Intentionally Omitted.
----------------------
6. Intentionally Omitted.
----------------------
7. Miscellaneous.
-------------
7.1 Transfers to Permitted Transferees. Prior to the transfer of Units to
--- ----------------------------------
a Permitted Transferee (other than a transfer in connection with or subsequent
to a Sale of the Company), each transferring Shareholder shall deliver to the
Company a written agreement of the proposed transferee (a) evidencing such
Person's undertaking to be bound by the terms of this Agreement and (b)
acknowledging that the Units transferred to such Person will continue to be
Units for purposes of this Agreement in the hands of such Person. Any transfer
or attempted transfer of Units in violation of any provision of this Agreement
or the Securityholders Agreement shall be void, and the Company shall not record
such transfer on its books or treat any purported transferee of such Units as
the owner of such Units for any purpose.
7.2 Recapitalizations, Exchanges, Etc., Affecting Units. The provisions
--- ---------------------------------------------------
of this Agreement shall apply, to the full extent set forth herein with respect
to Units, to any and all securities of Investors or any successor or assign of
Investors (whether by merger, consolidation, sale of assets or otherwise) which
may be issued in respect of, in exchange for, or in substitution of the Units,
by reason of any dividend payable in units, issuance of units, combination,
recapitalization, reclassification, merger, consolidation or otherwise.
7.3 Binding Effect. The provisions of this Agreement shall be binding
--- --------------
upon and accrue to the benefit of the parties hereto and their respective heirs,
legal representatives, successors and assigns; provided, however, that no
Permitted Transferee shall derive any rights under this Agreement unless and
until such Permitted Transferee has executed and delivered to Investors a valid
undertaking and becomes bound by the terms of this Agreement.
7.4 Amendment; Waiver. This Agreement may be amended only by a written
--- -----------------
instrument signed by the parties hereto. No waiver by any party hereto of any
of the provisions hereof shall be effective unless set forth in a writing
executed by the party so waiving.
7.5 Governing Law. This Agreement shall be governed by and construed and
--- -------------
enforced in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed therein.
8
7.6 Jurisdiction. Any suit, action or proceeding with respect to this
--- ------------
Agreement, or any judgment entered by any court in respect of any thereof, shall
be brought in any court of competent jurisdiction in the State of Delaware, and
each of Investors and the members of the Xxxxxxx Family Securityholders hereby
submits to the exclusive jurisdiction of such courts for the purpose of any such
suit, action, proceeding or judgment. Each of the members of the Xxxxxxx Family
Securityholders and Investors hereby irrevocably waives any objections which it
may now or hereafter have to the laying of the venue of any suit, action or
proceeding arising out of or relating to this Agreement brought in any court of
competent jurisdiction in the State of Delaware, and hereby further irrevocably
waives any claim that any such suit, action or proceeding brought in any such
court has been brought in any inconvenient forum.
7.7 Notices. All notices and other communications hereunder shall be in
--- -------
writing and shall be deemed to have been duly given when personally delivered,
telecopied (with confirmation of receipt), one day after deposit with a
reputable overnight delivery service (charges prepaid) and three days after
deposit in the U.S. Mail (postage prepaid and return receipt requested) to the
address set forth below or such other address as the recipient party has
previously delivered notice to the sending party.
(a) If to Investors:
M-Foods Investors, LLC
c/o Vestar Capital Partners IV, L.P.
0000 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
with a copies to:
Vestar Capital Partners IV, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
(b) If to the Xxxxxxx Family Securityholders, to the address shown
beneath such Securityholder's name on the signature page attached hereto with
copies to:
9
Xxxx Xxxxxxxxxx Ltd.
Attn: Xxxxxx Xxxx
4100 Xxxxx Xxxxxxx Tower
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000.
7.8 Integration. This Agreement and the documents referred to herein or
--- -----------
delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to the subject matter hereof and
thereof. There are no restrictions, agreements, promises, representations,
warranties, covenants or undertakings with respect to the subject matter hereof
other than those expressly set forth herein and therein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
7.9 Counterparts. This Agreement may be executed in separate counterparts
--- ------------
(including by means of telecopied signature pages), and by different parties on
separate counterparts each of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
7.10 Injunctive Relief. The Xxxxxxx Family Securityholders and their
---- -----------------
Permitted Transferees each acknowledges and agrees that a violation of any of
the terms of this Agreement will cause Investors irreparable injury for which
adequate remedy at law is not available. Accordingly, it is agreed that
Investors shall be entitled to an injunction, restraining order or other
equitable relief to prevent breaches of the provisions of this Agreement and to
enforce specifically the terms and provisions hereof in any court of competent
jurisdiction in the United States or any state thereof, in addition to any other
remedy to which it may be entitled at law or equity.
7.11 Rights Cumulative; Waiver. The rights and remedies of the Xxxxxxx
---- -------------------------
Family Securityholders and Investors under this Agreement shall be cumulative
and not exclusive of any rights or remedies which either would otherwise have
hereunder or at law or in equity or by statute, and no failure or delay by
either party in exercising any right or remedy shall impair any such right or
remedy or operate as a waiver of such right or remedy, nor shall any single or
partial exercise of any power or right preclude such party's other or further
exercise or the exercise of any other power or right. The waiver by any party
hereto of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any preceding or succeeding breach and no failure by
either party to exercise any right or privilege hereunder shall be deemed a
waiver of such party's rights or privileges hereunder or shall be deemed a
waiver of such party's rights to exercise the same at any subsequent time or
times hereunder.
*****
10
IN WITNESS WHEREOF, the parties have executed this Stock Purchase and Unit
Subscription Agreement as of the date first above written.
M-FOODS INVESTORS, LLC
By:
Its: _________________________
By: _________________________
Its: _________________________
[XXXXXXX FAMILY SECURITYHOLDERS]
By: __________________________
Its: __________________________
[Address]
SCHEDULE I
Stock Purchase Schedule
-------------------------------------------------------------------------------
Shareholder Number of Shares Number of Purchased Share Purchase Price
Shares
-------------------------------------------------------------------------------
4J2R1C L.P. 1,588,489 938,489 $28,248,518.90
-------------------------------------------------------------------------------
3J2R L.P. 1,459,514 834,514 $25,118,871.40
-------------------------------------------------------------------------------
SCHEDULE II
Contribution Schedule
-------------------------------------------------------------------------------
Shareholder Number of Contributed Number of Class A Units
Shares
-------------------------------------------------------------------------------
4J2R1C L.P. 650,000 195,650
-------------------------------------------------------------------------------
3J2R L.P. 625,000 188,125
-------------------------------------------------------------------------------
