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Exhibit 2.3
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PURCHASE AGREEMENT
among
XXXX NATIONAL CORPORATION
and
XXXX NATIONAL GROUP, INC.
Dated as of 15 November, 1996
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TABLE OF CONTENTS
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PAGE
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ARTICLE I. DEFINITIONS................................................... 2
Section 1.1 Specific Definitions............................... 2
Section 1.2 Other Terms........................................ 3
Section 1.3 Other Definitional Provisions...................... 3
ARTICLE II. PURCHASE AND SALE OF THE SHARES.............................. 4
Section 2.1 Purchase and Sale of the Shares.................... 4
Section 2.2 Closing; Delivery and Payment...................... 4
Section 2.3 Retention of Certain Rights and
Obligations Under the Pillsbury
Purchase Agreement................................. 4
Section 2.4 Assumption of Certain Rights and
Obligations Under the Pillsbury
Purchase Agreement................................. 5
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF SELLER.................... 5
Section 3.1 Organization and Authority of Seller............... 5
Section 3.2 Capital Stock of Pearle and PSC.................... 6
Section 3.3 No Other Representations or Warranties............. 6
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF BUYER...................... 6
Section 4.1 Organization and Authority of Buyer................ 6
Section 4.2 Securities Act..................................... 7
Section 4.3 No Other Representations or Warranties............. 7
ARTICLE V. CONDITIONS TO CLOSING......................................... 7
ARTICLE VI. TERMINATION.................................................. 8
ARTICLE VII. MISCELLANEOUS............................................... 8
Section 7.1 Amendment and Modification; Waiver................. 8
Section 7.2 Assignment......................................... 9
Section 7.3 Entire Agreement................................... 9
Section 7.4 Parties in Interest; No Third Party Beneficiaries.. 9
Section 7.5 Counterparts....................................... 9
Section 7.6 Section Headings................................... 10
Section 7.7 Notices............................................ 10
Section 7.8 Severability....................................... 11
Section 7.9 Cooperation........................................ 11
Section 7.10 Expenses........................................... 11
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PURCHASE AGREEMENT
This Purchase Agreement (this "Agreement") is made as of the
15th day of November, 1996 by and between Xxxx National Corporation, a Delaware
Corporation ("Seller") and Xxxx National Group, Inc., a Delaware corporation
("Buyer").
W I T N E S S E T H:
WHEREAS, Seller is purchasing (i) all of the issued and
outstanding shares (the "PSC Shares") of capital stock of Pearle Service
Corporation, a Delaware corporation ("PSC") and (ii) all of the issued and
outstanding shares (the "Pearle Shares", and together with the PSC Shares, the
"Shares") of capital stock of Pearle, Inc., a Delaware corporation ("Pearle")
pursuant to that certain Stock Purchase Agreement among The Pillsbury Company
("Pillsbury"), Pearle and Seller dated as of September 24, 1996 (the "Pillsbury
Purchase Agreement");
WHEREAS, Seller is causing the sale of all of the issued and
outstanding shares of Pearle Holdings B.V., a company organized under the laws
of the Netherlands and a wholly owned indirect subsidiary of Pearle, along with
certain assets, pursuant to that certain Purchase Agreement among Seller and HAL
Investments B.V. dated as of September 24, 1996 (the "BV Purchase Agreement");
WHEREAS, Seller desires to sell and transfer to Buyer, and
Buyer desires to purchase from Seller, (a) the Shares and (b) all of the
Seller's rights and obligations of Seller under the Pillsbury Purchase Agreement
except for (i) those rights and
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obligations that are necessary for the Seller to fulfill its obligations under
the BV Purchase Agreement, (ii) Seller's right to receive payment under Section
5.2(a) of the Pillsbury Purchase Agreement (iii) Seller's right to receive
payment under Section 4 of the Side Agreement (the "Side Agreement") dated
September 24, 1996 by and among Seller and Pillsbury and (iv) the right to
receive the consideration to be paid to Seller pursuant to the BV Purchase
Agreement (collectively (i), (ii), (iii) and (iv) above hereinafter referred to
as the "Excluded Rights" and (a) and (b) above hereinafter referred to as the
"Agreement Rights"); and
WHEREAS, the transactions contemplated by this Agreement (the
"Transfer") are to be consummated immediately following the consummation of the
Pillsbury Purchase Agreement and the BV Purchase Agreement.
NOW THEREFORE, in consideration of the premises,
representations, warranties and agreements contained herein, the parties agree
as follows:
ARTICLE I.
DEFINITIONS
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Section 1.1 SPECIFIC DEFINITIONS. As used in this Agreement,
the following terms have the meanings set forth or as referenced below:
"AGREEMENT" means this Agreement.
"AGREEMENT RIGHTS" has the meaning set forth in the Preamble.
"BUYER" has the meaning set forth in the Preamble.
"CLOSING" has the meaning set forth in Section 2.2(a).
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"CLOSING DATE" has the meaning set forth in Section 2.2(a).
"EXCLUDED RIGHTS" has the meaning set forth in the preamble.
"PERSON" means any individual, corporation, partnership, firm,
joint venture, association, joint-stock company, trust, unincorporated
organization, governmental or regulatory body or other entity.
"PILLSBURY" has the meaning set forth in the Preamble.
"PURCHASE PRICE" has the meaning set forth in Section 2.1.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SELLER" has the meaning set forth in the Preamble.
"SHARES" has the meaning set forth in the Preamble.
Section 1.2 OTHER TERMS. Other terms may be defined elsewhere
in the text of this Agreement and, unless otherwise indicated, have such meaning
indicated throughout this Agreement. Capitalized terms used and not defined
herein have the meanings ascribed to such terms in the Pillsbury Purchase
Agreement.
Section 1.3 OTHER DEFINITIONAL PROVISIONS. (a) The words
"hereof", "herein", and "hereunder" and words of similar import, when used in
this Agreement, refer to this Agreement as a whole and not to any particular
provision of this Agreement.
(b) The terms defined in the singular have a comparable
meaning when used in the plural, and vice versa.
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ARTICLE II.
PURCHASE AND SALE OF THE SHARES
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Section 2.1 PURCHASE AND SALE OF THE SHARES. Upon the terms
and subject to the conditions set forth herein, Buyer shall purchase from Seller
and Seller shall sell to Buyer the Shares for an aggregate purchase price of One
Hundred Fifty-Four Million Dollars ($154,000,000) (the "Purchase Price")
Section 2.2 CLOSING; DELIVERY AND PAYMENT.
(a) The closing (the "Closing") shall take place immediately
following the closing of the Pillsbury Purchase Agreement, the BV Purchase
Agreement and the transfer to Seller of the proceeds of the BV Purchase
Agreement. The date on which the closing occurs is called the "Closing Date,"
and the Closing shall be deemed effective at 11:59:30 P.M. (local time) on the
Closing Date.
(b) On the Closing Date, (i) Seller shall cause the Shares to
be transferred to Buyer pursuant to a Stock Power, (ii) shall execute any and
all documents and to do such other acts as are necessary to assign the Agreement
Rights to Buyer, and (iii) Buyer shall pay to Seller the Purchase Price in
immediately available funds to an account to be designated by Seller or through
a credit in the intercompany account between Seller and Buyer.
Section 2.3 RETENTION OF CERTAIN RIGHTS AND OBLIGATIONS UNDER
THE PILLSBURY PURCHASE AGREEMENT. Notwithstanding anything contained in this
Agreement to the
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contrary, the Seller will retain and will not transfer to Buyer the Excluded
Rights.
Section 2.4 ASSUMPTION OF CERTAIN RIGHTS AND OBLIGATIONS UNDER
THE PILLSBURY PURCHASE AGREEMENT. The Buyer will assume and Seller shall assign
those rights and obligations under the Pillsbury Purchase Agreement that not are
Excluded Rights.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF SELLER
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Seller represents and warrants to Buyer as of the date hereof
and as of the Closing Date (except that representations and warranties that are
made as of a specific date need be true only as of such date) as follows:
Section 3.1 ORGANIZATION AND AUTHORITY OF SELLER. Seller has
been duly incorporated, is validly existing and is in good standing under the
laws of the State of Delaware, with full power and authority to enter into this
Agreement and to perform its obligations hereunder. This Agreement has been duly
authorized, executed and delivered by Seller and constitutes a legal, valid and
binding obligation of Seller, enforceable in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles, and no other proceedings on the part of
Seller, are necessary to authorize this Agreement and the consummation of the
transactions contemplated hereby.
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Section 3.2 CAPITAL STOCK OF PEARLE AND PSC. As of the
Closing, Seller will have good and valid title to the Shares and, upon
consummation of the transactions contemplated in this Agreement, will have
transferred such title to the Shares to Buyer pursuant to the terms of this
Agreement.
Section 3.3 NO OTHER REPRESENTATIONS OR WARRANTIES. Except for
the representations and warranties contained in this Article 3, neither Seller
nor any other Person makes any other express or implied representation or
warranty on behalf of Seller.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF BUYER
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Buyer represents and warrants to Seller as of the date hereof
and as of the Closing Date (except that representations and warranties that are
made as of a specific date need be true only as of such date) as follows:
Section 4.1 ORGANIZATION AND AUTHORITY OF BUYER. Buyer is duly
incorporated, 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 to
perform its obligations hereunder. This Agreement has been duly authorized,
executed and delivered by Buyer and constitutes a legal, valid and binding
obligation of Buyer, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to
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general equity principles, and no other proceedings on the part of Buyer are
necessary to authorize this Agreement and the consummation of transactions
contemplated hereby.
Section 4.2 SECURITIES ACT. Buyer is acquiring the Shares
solely for the purpose of investment and not with a view to, or for sale in
connection with, any distribution thereof in violation of the Securities Act.
Buyer acknowledges that the Shares are not registered under the Securities Act
or any applicable state securities law, and that such Shares may not be
transferred or sold except pursuant to the registration provisions of such
Securities Act or pursuant to an applicable exemption therefrom and pursuant to
state securities laws and regulations as applicable.
Section 4.3 NO OTHER REPRESENTATIONS OR WARRANTIES. Except for
the representations and warranties contained in this Article IV, neither Buyer
nor any other Person makes any other express or implied representation or
warranty on behalf of Buyer.
ARTICLE V.
CONDITIONS TO CLOSING
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The obligations of the parties to consummate the transactions
contemplated by this Agreement are subject to the satisfaction or waiver by both
parties on or prior to the Closing Date of the following conditions:
(a) The closing of the Pillsbury Purchase Agreement must
have occurred;
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(b) The closing of the BV Purchase Agreement must have
occurred; and
(c) No court or governmental authority of competent
jurisdiction has enacted, issued, promulgated, enforced or
entered any statute, rule, regulation, or non-appealable
judgment, decree, injunction or other order that is in effect on
the Closing Date and prohibits the consummation of the Closing.
ARTICLE VI.
TERMINATION
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This Agreement will terminate automatically upon the
termination of the Pillsbury Purchase Agreement and otherwise may be terminated
at any time prior to the Closing only by agreement of Buyer and Seller.
ARTICLE VII.
MISCELLANEOUS
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Section 7.1 AMENDMENT AND MODIFICATION; WAIVER. This Agreement
may only be amended or modified in writing, signed by Seller and Buyer, at any
time prior to the Closing with respect to any of the terms contained herein. At
any time prior to the Closing either Seller or Buyer may (a) extend the time for
the performance of any of the obligations or other acts of the other party
hereto, (b) waive any inaccuracies in the representations and warranties of the
other party contained
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herein or in any document delivered pursuant hereto, and (c) waive compliance
with any of the agreements or conditions of the other party contained herein.
Any agreement on the part of a party hereto to any such extension or waiver will
be valid if set forth in an instrument in writing signed by the party granting
such extension or waiver.
Section 7.2 ASSIGNMENT. No party to this Agreement may assign
any of its rights or obligations under this Agreement without the prior written
consent of the other party hereto.
Section 7.3 ENTIRE AGREEMENT. This Agreement contains the
entire agreement between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings, oral or written,
with respect to such matters.
Section 7.4 PARTIES IN INTEREST; NO THIRD PARTY BENEFICIARIES.
This Agreement inures to the benefit of and will be binding upon the parties
hereto and their respective successors and permitted assigns. Nothing in this
Agreement, express or implied, is intended to confer upon any Person other than
Buyer, Seller, or their successors or respective permitted assigns, any rights
or remedies under or by reason of this Agreement.
Section 7.5 COUNTERPARTS. This Agreement and any amendments
hereto may be executed in one or more counterparts, each of which will be deemed
to be an original by the parties executing such counterpart, but all of which
will be considered one and the same instrument.
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Section 7.6 SECTION HEADINGS. The section and paragraph
headings and table of contents contained in this Agreement are for reference
purposes only and will not in any way affect the meaning or interpretation of
this Agreement.
Section 7.7 NOTICES. All notices hereunder will be deemed
given if in writing and delivered personally or sent by telecopy, telex or
telegram or by registered or certified mail (return receipt requested) to the
parties at the following addresses (or at such other addresses as may be
specified by like notice):
(a) if to Seller, to:
Xxxx National Corporation
0000 Xxxxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxx 00000
Attention: Treasurer
Fax: 000-000-0000
With a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
North Point
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Xxxxxx Xxxxxx
Attention: Xxxxx X. Xxxxxx
Fax: 000-000-0000
(b) if to Buyer, to:
Xxxx National Group, Inc.
0000 Xxxxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxx 00000
Attention: Treasurer
Fax: 000-000-0000
With a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
North Point
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Xxxxxx Xxxxxx
Attention: Xxxxx X. Xxxxxx
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Fax: 000-000-0000
Any notice given by mail or telegram will be effective when received. Any notice
given by telex will be effective when the appropriate telex or telecopy answer
back is received.
Section 7.8 SEVERABILITY. The provisions of this Agreement are
severable and the invalidity or unenforceability of any provision will not
affect the validity or enforceability of the other provisions hereof. If any
provision of this Agreement, or the application thereof to any person or entity
or any circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision will be substituted therefor in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision and (b) the remainder of this Agreement and the application of such
provision to other persons, entities or circumstances will not be affected by
such invalidity or unenforceability, nor will such invalidity or
unenforceability affect the validity or enforceability of such provision, or the
application thereof, in any other jurisdiction.
Section 7.9 COOPERATION. Buyer and Seller shall cooperate and
use their respective reasonable best efforts to (i) enforce the other party's
rights under the Pillsbury Purchase Agreement and (ii) fulfill the other party's
obligations under the Pillsbury Purchase Agreement.
Section 7.10 EXPENSES. Buyer shall be responsible for the
payment of all expenses in connection with the transactions contemplated by this
Agreement.
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IN WITNESS WHEREOF, this Agreement has been signed on behalf
of each of the parties hereto as of the date first written above.
XXXX NATIONAL CORPORATION
By /s/Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Vice President and
Treasurer
XXXX NATIONAL GROUP, INC.
By /s/Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Vice President and
Treasurer
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