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EXHIBIT 2.1
AMENDMENT TO THE STOCK PURCHASE AGREEMENT
ENTERED INTO AMONG ALIGAR, INC. AND XXXXXX, INC. AND SWIFT
ARMOUR HOLDINGS CO. ON APRIL 28, 1999
This amendment agreement (the "Amendment") modifies the Stock Purchase Agreement
entered into among Aligar, Inc. and Xxxxxx, Inc. (collectively, "Sellers") and
Swift Armour Holdings Co. ("Buyer") on April 28, 1999 (as amended, the
"Agreement"). Except as otherwise indicated in this Amendment, all terms defined
in the Agreement, when used in this Amendment, shall have the same meaning
ascribed thereto in the Agreement.
Intending to be legally bound hereby, Sellers and Buyers agree to the following
modifications of the Agreement:
1. The final paragraph at the bottom of page 8 of the Agreement, headed
"SECTION 3 CLOSING," is hereby amended and restated to read, as
follows:
The Closing of the transactions contemplated by this Agreement
shall occur at the offices of Vlasic Foods International, Six
Executive Campus, Cherry Hill, New Jersey, U.S.A. on the earliest
to occur of (i) July 30, 1999, (ii) five (5) Business Days after
the date on which all of the Conditions precedent are satisfied
or waived in accordance with Section 2 or (iii) such other date
as the Parties may agree.
2. New Sections 1.6 and 3.4 are hereby added to the Agreement, as follows:
1.6 Capital Increase and Reduction. Notwithstanding anything to
the contrary contained in this Agreement, at Buyer's request, and
subject to the provisions of this Section 1.6, Sellers hereby
agree to adopt certain resolutions at one or more Shareholders'
meetings of the Company to be held at any time as from June 7
through July 31, 1999, and authorize the Board of Directors of
the Company to act in the manner described hereinbelow, subject
to the conditions and limitations set forth below, to the
following effect: (i) to increase the capital stock of the
Company to the sum of $92,000,000, by means of the capitalization
of the sum of $ 60,000,000 from the so-called "adjustment to the
capital account" of the Company which, as of July 31, 1998, had a
balance of $ 175,132,490, (ii) following the capitalization
referred to in clause (i) of this Section 1.6 (but pursuant to a
simultaneous transaction as described below), to reduce the
capital stock of the Company to $ 37,000,000, by means of a
capital stock redemption for an aggregate cash consideration of $
55,000,000, and (iii) to make the publications required under
Argentine Law in connection with the capital increase and
reduction referred to in clauses (i)
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and (ii) of this Section 1.6; provided, however, that the Parties
hereby expressly agree that the resolutions described clauses (i)
and (ii) of this Section 1.6 shall have no effect whatsoever if
the Closing does not occur and, consequently, the following
actions may only take place on the Closing Date and concurrently
with the consumation of all of the transactions required to take
place on the Closing Date: (a) the execution and delivery of the
public deed recording the aforesaid capital stock increase and
reduction as well as the filing of such public deed with the
respective Commercial Registry of Buenos Aires, (b) the
redemption and cancellation of any portion of the capital stock
of the Company by reason of the above described capital
reduction, (c) the incurrence of any indebtedness by the Company
to effect such capital stock redemption and cancellation or the
granting of any security interest on the Company's properties to
guarantee any such indebtedness, and (d) the payment to Sellers
of the Purchase Price pursuant to this Agreement. Sellers hereby
further agree to adopt certain other resolutions at another
Shareholders' Meeting of the Company to be held at any time on or
before the Closing Date, and authorize the Board of Directors of
the Company to act in the manner described hereinbelow, to the
following effect: (1) to revoke all of the Company's declared but
unpaid dividends as of July 31, 1998, for an aggregate amount of
$18,736,221.07, and to allocate such amount to the "retained
earnings/losses" account of the Company, and (2) to increase the
capital stock of the Company to $47,000,000, by means of the
capitalization of the sum of $10,000,000 from the "retained
earnings/losses" account of the Company increased by reason of
the revocation and allocation described in clause (1) of this
Section 1.6.
3.4 Closing Acknowledgement. All deliveries by Buyer and Sellers
pursuant to this Section 3 shall be made to counsel for each of
the parties, respectively, as their agents in fact. When counsel
for Buyer and counsel for Sellers have verified that all
deliveries in accordance with Section 3.1 and Section 3.2 have
been made, counsel for Sellers shall immediately notify Sellers
of this fact. Upon receipt of such notice, Sellers shall
immediately execute and deliver an acknowledgment of the
completion of all conditions for closing, in the form attached
hereto as Schedule 3.4, transferring the Transfer Shares to Buyer
in the manner contemplated in Section 1.1.1 and releasing all
deliveries by Buyer and by Sellers for appropriate disposition by
their respective counsel.
3. Upon execution of this Amendment, the following Conditions Precedent
contemplated in the Agreement shall be considered satisfied: 2.1.8 and
2.1.9, and 2.2.5 through and including 2.2.9.
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4. Upon execution of this Amendment, Buyer shall pay to Sellers the sum of
US$1,000,000, in immediately available funds, to the following bank
account: "Mellon Bank, Xxx Xxxxxx Xxxx Xxxxxx, Xxxxxxxxxx, XX 00000,
Swift ID: MELN US 3P, ABA# 000000000, Account #0000000, Account Name:
Vlasic Foods International, Inc.", as an advance payment on account of
the Purchase Price; and, therefore, if the Closing does occur, Buyer
shall be required to pay only the sum of US$ 84,000,000 as the balance
of the Purchase Price. If the Closing does not occur for any reason
other than Seller's default, in addition to the remedy available to
Sellers pursuant to Section 6.2 of the Agreement, and notwithstanding
the provisions of Section 2.1.1 of the Agreement, Sellers shall have
the right to retain such sum of US$1,000,000 as the sole additional
remedy available to Sellers, without prejudice to the application of
the provisions of paragraph 5 of this Amendment. If the Closing does
not occur for any reason attributable to Sellers, in addition to the
remedies available to Buyer pursuant to Section 6.2 of the Agreement,
Buyer shall have the right to recover such sum of US$1,000,000 plus
interest at the rate of 10% per annum, calculated for the days actually
elapsed from the date of execution of this Amendment until the date
such sum is actually returned to Buyer.
5. If the Closing does not occur for any reason other than Sellers'
default, Buyer hereby agrees to indemnify and hold the Company harmless
from and against any claims for fees, costs or expenses which may be
made against the Company in connection with Buyer's efforts to secure
the financing of the Purchase Price. Furthermore, Buyer hereby agrees
to indemnify and hold Sellers harmless from and against any
indebtedness, liability and obligation arising under or relating to
such financing; it being expressly agreed and accepted, however, that
nothing contained herein shall be understood to release Vlasic from any
obligation under the Supply Agreement with Vlasic or any assignment
thereof, including any account receivables arising thereunder, to be
made in connection with such financing, pursuant to Section 2.1.6 of
the Agreement. By executing this Amendment, Xx. Xxxxxx Xxxxx Xxxxx
jointly and severally guarantees the obligations assumed by Buyer under
this paragraph 5.
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IN WITNESS WHEREOF, Sellers and Buyer have caused this Amendment to be
executed and delivered as of the 7th day of June 1999 by their respective
officers hereunto duly authorized. In addition, and for the sole purpose
contemplated in paragraph 5 of this Amendment, Xx. Xxxxxx Xxxxx Xxxxx also
executes and delivers this Amendment as of the same date.
ALIGAR, INC. SWIFT ARMOUR HOLDINGS CO.
By: _______________________ By: _______________________
Name: Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Xxxxx
Title: Vice President Title: President
XXXXXX, INC. XXXXXX XXXXX XXXXX
By: _______________________ ______________________________
Name: Xxxxxx Xxxxx
Title: Vice President
