Exhibit 2.2
STOCK PURCHASE AND SALE AGREEMENT
THIS STOCK PURCHASE AND SALE AGREEMENT (this "Agreement") dated as of
August 19, 1998, is by and between Lisco, Inc., a Delaware corporation
("Lisco"), and Great Star Corporation, a corporation incorporated in the British
Virgin Islands ("Buyer").
WHEREAS, Buyer desires to purchase from Lisco, and Lisco desires to
sell to Buyer, shares of Class A common stock, par value $1.00 per share (the
"Common Stock"), of Evenflo Company, Inc. (the "Company") upon the terms and
subject to the conditions set forth herein; and
WHEREAS, at the Closing (as defined in Section 1.2), Buyer shall enter
into a Stockholders' Agreement substantially in the form set forth as Exhibit A
hereto (the "Stockholders' Agreement"), dated as of the Closing Date (as defined
in Section 1.2) by and between Buyer, the Company and KKR 1996 Fund L.P. (the
"KKR Fund").
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
Sale of Stock; Closing
Section 1.1 Purchase and Sale. On the basis of the representations,
warranties, covenants and agreements and subject to the satisfaction or waiver
of the conditions set forth herein, at the Closing (as defined in Section 1.2),
(i) Lisco will sell to Buyer, and Buyer will purchase from Lisco, 660,000 shares
of Common Stock (the "Shares"). In consideration of the shares of Common Stock
to be delivered at the Closing, Buyer will wire transfer, in immediately
available funds, to the account specified by Lisco, $3,300,000 in respect of the
Shares purchased by Buyer. Lisco shall at the Closing deliver to Buyer share
certificates evidencing its ownership of the shares of Common Stock purchased by
Buyer duly endorsed in favor of Buyer.
Section 1.2 Time and Place of Closing. Unless this Agreement shall
have been terminated and the transactions herein contemplated shall have been
abandoned pursuant to Section 6.1 hereof, the closing with respect to the
purchase and sale of the Shares (the "Closing") shall take place, subject to the
provisions of Article V hereof, at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx at
such time and date to be designated by Lisco in a written notice to Buyer not
less than 3 business days in advance of the Closing or such other date as may be
agreed upon by the parties. The actual time and date of the Closing are herein
referred to as the "Closing Date".
ARTICLE II
Representations, Warranties and Agreements of Xxxxx
Xxxxx hereby represents, warrants and agrees as follows:
(a) Lisco is a corporation duly organized, validly existing and in
good standing under the laws of the state of Delaware.
(b) Lisco has all requisite power and authority to execute and deliver
this Agreement and to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement,
the performance of Lisco's obligations hereunder and the consummation of the
transactions contemplated hereby have been duly and validly authorized by all
necessary corporate proceedings on the part of Lisco and its Board of Directors
and stockholders and no other corporate action on the part of Lisco is necessary
for the execution, delivery and performance by Lisco of this Agreement and the
consummation of the transactions contemplated hereby. This Agreement has been
duly executed and delivered by Lisco, and assuming the due execution hereof by
Buyer, this Agreement constitutes the legal, valid and binding obligation of
Lisco in accordance with its terms except to the extent that its enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting creditors' rights generally and by general equity
principles.
(c) Lisco has good and valid title to the Shares, free and clear of
any liens, claims, encumbrances, security interests, options, pre-emptive,
drag-along or tag-along rights, rights of first refusal or first offer, charges
or restrictions of any kind (collectively, "Liens"). Assuming Buyer has the
requisite power and authority to be the lawful owner of the Shares, upon
delivery to Buyer at the Closing of certificates representing the Shares, duly
endorsed by Lisco to Buyer for transfer pursuant to Section 1.1 and upon Lisco's
receipt of the Purchase Price, good and valid title to the Shares will pass to
Buyer, free and clear of any Liens, except for Liens arising from acts of Buyer.
(d) The execution, delivery and performance by Lisco of this Agreement
requires no order, license, consent, authorization or approval of, or exemption
by, or action by or in respect of, or notice to, or filing or registration with,
any governmental body, agency or official except such as have been obtained or
except where the failure to obtain any such order, license, consent,
authorization, approval or exemption or give any such notice or make any filing
or registration would not reasonably be expected to adversely affect the ability
of Lisco to perform its obligations hereunder.
(e) The execution, delivery and performance by Lisco of this Agreement
does not and will not (i) violate the certificate of incorporation or bylaws of
Lisco, (ii) violate any law, rule, regulation, judgment, injunction, order or
decree applicable to or binding upon Lisco, (iii) require any consent or other
action by any person under, constitute a default under (with due notice or lapse
of time or both), or give rise to any right of termination, cancellation or
acceleration of any right or obligation of Lisco or to a loss of any benefit to
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which Lisco is entitled under any provision of any agreement or other instrument
binding upon Lisco or any of its assets or properties or (iv) result in the
creation or imposition of any material Lien on any property or asset of Lisco.
ARTICLE III
Representations, Warranties and Agreements of Buyer
Buyer hereby represents, warrants and agrees as follows:
(a) Buyer is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction.
(b) Buyer has all requisite power and authority to execute and deliver
this Agreement and to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement,
the performance of Buyer's obligations hereunder and the consummation of the
transactions contemplated hereby have been duly and validly authorized by all
necessary corporate proceedings on the part of Buyer and its Board of Directors
and stockholders and no other corporate action on the part of Buyer is necessary
for the execution, delivery and performance by Buyer of this Agreement and the
consummation of the transactions contemplated hereby. This Agreement has been
duly executed and delivered by Buyer, and assuming the due execution hereof by
Lisco, this Agreement constitutes the legal, valid and binding obligation of
Buyer in accordance with its terms except to the extent that its enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting creditors' rights generally and by general equity
principles.
(c) The execution, delivery and performance by Buyer of this Agreement
requires no order, license, consent, authorization or approval of, or exemption
by, or action by or in respect of, or notice to, or filing or registration with,
any governmental body, agency or official except such as have been obtained or
except where the failure to obtain any such order, license, consent,
authorization, approval or exemption or give any such notice or make any filing
or registration would not reasonably be expected to adversely affect the ability
of Buyer to perform its obligations hereunder.
(d) The execution, delivery and performance by Buyer of this Agreement
does not and will not (i) violate the certificate of limited partnership or
agreement of limited partnership of Buyer, (ii) violate any law, rule,
regulation, judgment, injunction, order or decree applicable to or binding upon
Buyer, (iii) require any consent or other action by any person under, constitute
a default under (with due notice or lapse of time or both), or give rise to any
right of termination, cancellation or acceleration of any right or obligation of
Buyer or to a loss of any benefit to which Buyer is entitled under any provision
of any agreement or other instrument binding upon Buyer or any of its assets or
properties or (iv) result in the creation or imposition of any material Lien on
any property or asset of Buyer.
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(e) The Shares purchased by Buyer pursuant to this Agreement are being
acquired for investment only and not with a view to any public distribution
thereof, and Buyer shall not offer to sell or otherwise dispose of the Shares so
acquired by it in violation of any registration requirements of the Securities
Act of 1933, as amended, and the rules and regulations promulgated thereunder.
ARTICLE IV
Covenants of Lisco and Buyer
Section 4.1 Further Assurances. Lisco and Buyer agree that, from time
to time, whether on or after the Closing Date, each of them will execute and
deliver such further instruments of conveyance and transfer and take such other
actions as may be necessary to carry out the purposes and intents of this
Agreement.
Section 4.2 No Inconsistent Action. Subject to Sections 6.1 and 6.2,
Lisco and Buyer shall not take any action inconsistent with their obligations
under this Agreement or which could materially hinder or delay the consummation
of the transactions contemplated by this Agreement.
Section 4.3 Stockholders' Agreement. At the Closing, Lisco and Buyer
shall each execute and deliver the Stockholders' Agreement.
ARTICLE V
Conditions Precedent to Obligations of Parties
Section 5.1 Conditions to Obligations of Parties. The respective
obligations of Buyer and Lisco hereunder are subject to the satisfaction at or
prior to the Closing Date, of each of the following conditions: (i) the parties
hereto shall have obtained from every government or governmental authority every
approval necessary to consummate the transactions contemplated by this Agreement
and (ii) there shall be no action, proceeding, injunction, order or decree of
any nature of any court or governmental agency or body of competent jurisdiction
that challenges, restrains or prohibits the consummation of such stock purchase.
Section 5.2 Conditions of Buyer's Obligation to Close. The obligation
of Buyer to consummate the transactions contemplated by this Agreement is
subject to the satisfaction, at or prior to the Closing Date, of the following
conditions: (i) the representations and warranties of Lisco contained in this
Agreement shall be true and correct, in all material respects, on and as of the
Closing Date, (ii) Lisco shall have performed in all material respects all
obligations and agreements, and complied in all material respects with all
covenants and conditions, contained in this Agreement to be performed or
complied with by it prior to the Closing Date and (iii) the Company, Lisco and
the KKR Fund shall have executed and delivered the Stockholders' Agreement.
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Section 5.3 Conditions of Lisco's Obligations to Close. The obligation
of Lisco to consummate the transactions contemplated by this Agreement with
respect to Buyer is subject to the satisfaction, at or prior to the Closing
Date, of the following conditions: (i) the representations and warranties of
Buyer contained in this Agreement shall be true and correct, in all material
respects, on and as of the Closing Date, (ii) Buyer shall have performed in all
material respects all obligations and agreements, and complied in all material
respects with all covenants and conditions, contained in this Agreement to be
performed or complied with by he/she prior to or at the Closing Date and (iii)
the Company, Buyer and the KKR Fund shall have executed and delivered the
Stockholder's Agreement and (iv) the KKR Fund shall have consummated the
purchase of 51% or more of the outstanding shares of Common Stock of the
Company.
ARTICLE VI
Termination
Section 6.1 Termination. This Agreement may be terminated at any time
prior to the Closing:
(a) by mutual written agreement of Lisco and Buyer;
(b) by either Lisco, on the one hand, or Buyer, on the other hand, if
the Closing shall not have been consummated as of the close of business on
September 30, 1998; or
(c) by either Lisco, on the one hand, or Buyer, on the other hand, if
consummation of the transactions contemplated hereby would violate any
non-appealable final order, decree or judgment of any court or governmental
body having competent jurisdiction.
The party desiring to terminate this Agreement pursuant to clauses 6.1(b) or (c)
shall promptly give notice of such termination to the other party.
Section 6.2 Procedure and Effect of Termination. In the event of the
termination of this Agreement the transactions contemplated hereby shall be
abandoned without further action by the parties hereto, and there shall be no
liability on the part of Lisco or Buyer, except for liabilities arising from the
breach of this Agreement. If this Agreement is terminated as provided herein all
filings, applications and other submissions made in connection herewith shall,
to the extent practicable, be withdrawn from the agency or other persons to
which they were made.
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ARTICLE VII
Miscellaneous
Section 7.1 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, and all of
which together shall be deemed to be one and the same instrument.
Section 7.2 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of New York.
Section 7.3 Notices. All notices and other communications provided for
herein shall be in writing and shall be deemed to have been duly given if
delivered by hand (whether by overnight courier or otherwise) or sent by
registered or certified mail, return receipt requested, postage prepaid, or by
overnight delivery or telecopy, to the party to whom it is directed:
(a) If to Seller, to it at the following address:
Lisco, Inc.
c/o Spalding & Evenflo Companies, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: General Counsel
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxx X. Xxxxxxxx, Esq.
(b) If to Buyer, to it at the following address:
Great Star Corporation
x/x Xxxxx Xxxxxxx & Xxxxxxx Xxxxx Xx.
Xxxx Xxxxx Building, Xxxxxxx'x Xxx
Road Town, Tortola
British Virgin Islands
Fax (000) 000-0000
with a copy to:
Finser Corporation
000 Xxxxxxxx Xxx, Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxx 00000
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Attn: Xxxxxxxxx Xxxxxx B.
Fax (000) 000-0000
with a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxx X. X' Xxxx, Xx.
Fax (000) 000-0000
Section 7.4 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, provided, however, that no party hereto shall be
entitled to assign its rights or delegate its obligations under this Agreement
without the express prior written consent of the other parties hereto.
Section 7.5 Headings; Definition. The section and article headings
contained in this Agreement are inserted for convenience of reference only and
will not affect the meaning or interpretation of this Agreement. All references
to Sections or Articles contained herein mean Sections or Articles of this
Agreement unless otherwise stated. All capitalized terms defined herein are
equally applicable to both the singular and plural forms of such terms.
Section 7.6 Amendments and Waivers. This Agreement may not be modified
or amended except by an instrument or instruments in writing signed by the party
against whom enforcement of any such modification or amendment is sought. Any
party hereto may, only by an instrument in writing, waive compliance by the
other party hereto with any term, condition or provision of this Agreement on
the part of such party hereto to be performed or complied with. The waiver by
any party hereto of a breach of any term or provision of this Agreement shall
not be construed as a waiver of any subsequent breach.
Section 7.7 Jurisdiction. The parties hereto agree that any suit,
action or proceeding seeking to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement or the transactions
contemplated hereby may only be brought in the United States District Court for
the Southern District of New York or any New York State court sitting in New
York City, and each of the parties hereby consents to the jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 7.3 shall be deemed
effective service of process on such party.
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Section 7.8 Waiver Of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
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IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of
each of the parties as of the day first above written.
LISCO, INC.
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Name:
Title:
GREAT STAR CORPORATION
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Name:
Title:
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