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EXHIBIT 2.1
Stock Purchase Agreement
entered into among
Aligar, Inc.
and
▇▇▇▇▇▇, Inc.
and
Swift Armour Holdings Co.
on April 28, 1999
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Table of Contents
Page
INTERPRETATION AND CERTAIN DEFINITIONS....................................................................2
SECTION 1
PURCHASE AND SALE OF THE TRANSFER SHARES..................................................................4
1.1 Purchase and Sale of the Transfer Shares......................................................4
1.1.1 Purchase and Sale of the Transfer Shares...............................................4
1.1.2 Purchase Price. Payment of the Purchase Price..........................................4
1.2 Currency and Method of Payment................................................................5
1.3 Termination...................................................................................5
1.4 Procedure upon Termination. Consequences......................................................5
1.5 Waiver........................................................................................5
SECTION 2
CONDITIONS PRECEDENT TO CLOSING...........................................................................5
2.1 Conditions Precedent to Obligations of Buyer..................................................5
2.1.1 Funds Available........................................................................5
2.1.2 No Prohibition.........................................................................5
2.1.3 No Proceedings.........................................................................6
2.1.4 Performance of Covenants...............................................................6
2.1.5 Representations and Warranties.........................................................6
2.1.6 Agreement with Vlasic..................................................................6
2.1.7 Agreement with ▇▇▇▇▇▇▇▇ Soup Company...................................................6
2.1.8 Compliance with certain Conditions Precedent to Obligations of Sellers.................7
2.1.9 Buyer's Board Approval.................................................................7
2.2 Conditions Precedent to Obligations of Sellers................................................7
2.2.1 No Prohibition.........................................................................7
2.2.2 No Proceedings.........................................................................7
2.2.3 Performance of Covenants...............................................................7
2.2.4 Representations and Warranties.........................................................7
2.2.5 Commitment Letter......................................................................8
2.2.6 Required Banks' Consent................................................................8
2.2.7 Vlasic's Board Approval................................................................8
2.2.8 Favorable Tax Opinion. Campbell's Consent.............................................8
2.2.9 Sellers' Boards Approval...............................................................8
SECTION 3
CLOSING...................................................................................................8
3.1 Deliveries of Sellers and/or the Company......................................................9
3.2 Deliveries of Buyer..........................................................................10
3.3 Aborted Closing Date.........................................................................10
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SECTION 4
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLERS.....................................................10
4.1 Organization, Qualification..................................................................10
4.2 Good Title to Transfer Shares................................................................10
4.3 Capitalization of the Company................................................................11
4.4 Authority and Validity.......................................................................11
4.5 No Conflict or Violation.....................................................................11
4.6 Disclosure...................................................................................11
4.7 Solvency.....................................................................................11
4.8 No other agreements to sell the Transfer Shares or Assets....................................12
4.9 Conduct of Business..........................................................................12
4.10 Notice of Changes............................................................................12
4.11 No Other Representation or Warranty..........................................................12
SECTION 5
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER.......................................................13
5.1 Organization. Power and Authority............................................................13
5.2 Authorization................................................................................13
5.3 No Conflict or Violation.....................................................................13
5.4 Notice of Changes............................................................................13
5.5 No Other Representation or Warranty..........................................................13
SECTION 6
DEFAULTS AND REMEDIES....................................................................................14
6.1 Default......................................................................................14
6.2 Election of Remedies.........................................................................14
6.3 Termination of Provisions....................................................................14
SECTION 7
MISCELLANEOUS............................................................................................14
7.1 Survival.....................................................................................14
7.2 Entire Agreement.............................................................................14
7.3 Waiver of Compliance; Consents...............................................................14
7.4 Expenses.....................................................................................15
7.5 Brokers' Fees................................................................................15
7.6 Headings.....................................................................................15
7.7 Notices......................................................................................15
7.8 Severability.................................................................................16
7.9 Exhibits and Schedules; Initialization.......................................................16
7.10 Responsibility for Taxes.....................................................................17
7.11 Governing Law. Consent to Jurisdiction.......................................................17
7.12 Governing Language...........................................................................18
7.13 Counterparts.................................................................................18
[For purposes of this Form 8-K, the Exhibits and Schedules to this Stock
Purchase Agreement have been omitted but will be supplied to the Securities and
Exchange Commission upon request.}
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (hereinafter referred to as this "Agreement") is
entered into as of April 28, 1 999, by and among:
1) Aligar, Inc., a company organized under the laws of the State of
Delaware, United States of America, domiciled at Vlasic Plaza, Six
Executive Campus, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of
America, hereby represented by its President, ▇▇. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
as evidenced by a Certificate of Incumbency attached hereto as Exhibit A
(hereinafter referred to as "Aligar") and ▇▇▇▇▇▇, Inc., a company
organized under the laws of the State of Delaware, United States of
America, domiciled at Vlasic Plaza, Six Executive Campus, ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America, hereby represented by
its President, ▇▇. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, as evidenced by a Certificate
of Incumbency attached hereto as Exhibit B (hereinafter referred to as
"▇▇▇▇▇▇" and Aligar and ▇▇▇▇▇▇ hereinafter, collectively, referred to as
"Sellers"); and
2) Swift Armour Holdings Co., an exempted company organized under the laws
of the Cayman Islands, domiciled at Caledonian House, ▇▇▇▇▇▇▇ Street,
▇▇▇▇▇▇ Town, Grand Cayman, Cayman Islands, hereby represented by its
President, ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, as evidenced by a Certificate of
Incumbency attached hereto as Exhibit C (hereinafter referred to as
"Buyer", and Buyer and Sellers hereinafter, collectively, referred to as
the "Parties" and, individually, a "Party", it being understood that, in
the case of Sellers, whenever the term "Party" or "Parties" is used, it
shall mean, collectively, Aligar and ▇▇▇▇▇▇).
WITNESSETH
WHEREAS, Buyer is controlled by ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, directly or
through his Affiliates (as hereinafter defined).
WHEREAS, Sellers are wholly owned subsidiaries of Vlasic Foods
International Inc. (hereinafter referred to as "Vlasic")
WHEREAS, Sellers own 100% (one hundred percent) of the issued and
outstanding shares of the capital stock and votes of Swift-Armour Sociedad
Anonima Argentina, a corporation organized under the laws of the Republic of
Argentina, domiciled at L.N. ▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
(hereinafter referred to as the "Company"), as described in Exhibit D.
WHEREAS, Sellers desire to sell and assign to Buyer, and Buyer desires to
acquire from Sellers the Transfer Shares (as hereinafter defined), subject to
the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained herein and in the Schedules and
Exhibits of this Agreement, the Parties agree as follows:
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INTERPRETATION AND CERTAIN DEFINITIONS
As used in this Agreement, and in the Exhibits and Schedules hereto (such
documents being referred to herein and therein, collectively, as this
"Agreement"), the following terms, when capitalized, shall have the meanings set
forth below. Whenever the context so requires, each of the neuter, masculine or
feminine forms of any pronoun shall include all such forms, the singular shall
include the plural and the plural shall include the singular. Unless otherwise
provided, all references to Sections, Exhibits, and Schedules shall be deemed to
be references to Sections of, and Exhibits and Schedules to, this Agreement.
Unless the context otherwise requires, "hereunder," "herein," "hereto,"
"hereof," and similar terms, when used in this Agreement, refer to this
Agreement and not to a particular section hereof or exhibit or schedule hereto.
"Including" means "including, but not limited to," and "include" or "includes"
means "include, without limitation" or "includes, without limitation." Unless
otherwise indicated, each reference to a particular Legal Requirement is a
reference to such Legal Requirement as it may be amended, modified, extended,
restated or supplemented from time to time, as well as to any successor Legal
Requirement thereto. Unless otherwise indicated, references to any agreement or
document shall be deemed to include all subsequent amendments and other
modifications thereto, but only to the extent such amendments and other
modifications are not prohibited by this Agreement.
"Affiliate" means any legal entity or individual who directly or indirectly
controls, or is controlled by, or is under common control with, any of the
Parties. As used in this definition, control" (including, with its correlative
meanings, "controlled by" and "under common control with") shall mean
possession, directly or indirectly, of the power to direct or cause the
direction of management or policies (whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise).
"Assets" means all properties, privileges, rights, interests and claims, real
and personal, tangible and intangible, of every type and description, that are
owned, leased, held, used or useful in the Company's Business in which the
Company has any right, title or interest or in which the Company has acquired
any right, title or interest on or before the Closing Date.
"Business Day" means any day that is not a Saturday, a Sunday or other day on
which banks are required or authorized by law to be closed in the City of New
York, United States or Buenos Aires, Argentina.
"Buyer's Authorized Agent" has the meaning set forth in Section 7.11 (ii).
"Closing" means the completion of all the activities and transactions provided
for in Section 3, all in accordance with the terms and conditions hereof.
"Closing Date" means the date on which the Closing occurs, all in accordance
with the terms and conditions hereof.
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"Company's Business" means the purchase and resale of beef, raw or processed,
the manufacture and sale of frozen and cooked beef, broth products and other
beef related products, the manufacture or purchase and sale of other food
products and any business supplemental or complementary thereto.
"Conditions Precedent" means the conditions precedent to the Closing provided in
Section 2.
"Contracts" means all contracts and agreements pertaining to the ownership,
operation and maintenance of the Assets or the Company's Business.
"Encumbrances" means any mortgage, lien, security interest, security agreement,
right of first refusal, conditional sale or other title retention agreement,
limitation, pledge, option, charge, assessment, restrictive agreement,
restriction, encumbrance, adverse interest, exception to or defect in title or
other ownership interest (including reservations, rights of way, possibilities
of revert, encroachments, easements, rights of entry, restrictive covenants,
leases and licenses, reversion, or other restriction of any kind, including any
restriction on use, voting, transfer, receipt of income, or exercise of any
attribute of ownership).
"Former Committee Members" has the meaning set forth in Section 3.1 (ii).
"Former Directors" has the meaning set forth in Section 3.1 (ii).
"Former Members" has the meaning set forth in Section 3.1 (ii).
"Governmental Authorities" means all applicable national, provincial, and local
governments of the Republic of Argentina and all agencies, authorities,
departments, instrumentalities, courts, corporations or other subdivisions
thereof, or of any other jurisdiction having or claiming a regulatory interest
in or jurisdiction over any of the Parties.
"Legal Requirements" means any applicable statute, law, rule, regulation, code,
ordinance, judgment, decree, writ, order or the like, of any Governmental
Authority, including judicial decisions.
"Material Adverse Effect" (including all derivations thereof, whether or not
capitalized) means an event or circumstance that either individually or in the
aggregate materially and adversely affects (a) the business, assets, operations,
properties, condition (financial or otherwise) or results of operations or the
financial condition of the Company, or (b) the ability of Buyer or Sellers or
any Seller to consummate the transactions contemplated hereunder, or (c) the
ability of the Company to operate or conduct the Company's Business
substantially in the manner it is currently operated or conducted on the date
hereof, except in each case for any such events or circumstances that affects
(i) the beef industry in general, both in Argentina and elsewhere (including an
event or circumstance that affects the local and international financial
markets), and (ii) an event or circumstance that affects the general economic,
regulatory or political conditions in Argentina and elsewhere.
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"New York Court" has the meaning set forth in Section 7.11 (ii).
"Person" means any natural person, legal person, corporation, sociedad anonima,
partnership, trust, unincorporated organization, association, limited liability
company, sociedad de responsabilidad limitada, limited duration company,
Governmental Authority or other entity.
"Peso" or "A $" means the legal currency of the Republic of Argentina.
"Purchase Price" has the meaning set forth in Section 1.1.2.
"Sellers' Authorized Agent" has the meaning set forth in Section 7.11 (ii).
"Supervisory Committee" means the principal and deputy statutory syndics in
charge of the fiscalization of the Company.
"Transfer Shares" means 100% (one hundred percent) of the issued and outstanding
shares of the capital stock and voting rights of the Company, as described in
Section 4.3.
"United States Dollars" or "US$" means freely available Dollars of the United
States of America.
SECTION 1
PURCHASE AND SALE OF THE TRANSFER SHARES
1.1 Purchase and Sale of the Transfer Shares.
1.1.1 Purchase and Sale of the Transfer Shares. Upon the terms and subject to
the conditions set forth in this Agreement, Sellers agree to sell to Buyer, and
Buyer agrees to purchase from Sellers, the Transfer Shares. The Transfer Shares
shall be transferred from Sellers to Buyer on the Closing Date free of any
Encumbrances with all the rights and benefits thereto, including any rights to
retained earnings and all dividends or other distribution of any kind, whether
in cash or otherwise, corresponding to the Transfer Shares as of the date
hereof. Sellers hereby expressly represent that there are no capital
contributions made in respect of future subscription of shares of the Company
and that, should there be any, the same shall be transferred to Buyer together
with the Transfer Shares.
1.1.2 Purchase Price. Payment of the Purchase Price. The aggregate Purchase
Price for the Transfer Shares shall be US$85,000,000 (United States Dollars
eighty five million) (hereinafter referred to as the "Purchase Price") payable
by Buyer to Sellers on the Closing Date concurrently with the sale, assignment
and delivery of the Transfer Shares, to the bank account notified in writing by
Sellers to Buyer at least 2 (two) Business Days prior to the Closing Date.
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1.2 Currency and Method of Payment. The Purchase Price shall be paid in
United States Dollars, as provided in Section 1.1.2, without any deductions on
account of taxes, costs or expenses of any kind, including banking fees.
1.3 Termination. This Agreement may be terminated:
(i) at any time, by mutual consent of Sellers and Buyer; or
(ii) by either of the Parties, if the Closing shall not have occurred
on or before 60 (sixty) calendar days after the date hereof, or such
later date as the Parties may agree upon; provided, however, that the
right to terminate under this Section 1.3 (ii) shall not be available to
a Party if such Party has failed to fulfill any obligation under this
Agreement, which failure shall have been the cause of, or shall have
resulted in, the failure of the Closing to occur on or prior to such
date.
1.4 Procedure on Termination. Consequences. Buyer or Sellers, as the case
may be, may terminate this Agreement when permitted pursuant to Section 1.3 by
delivering written notice of such termination to the other Party, and such
termination shall be effective upon receipt of such notice in accordance with
Section 7.7. If this Agreement is terminated when permitted pursuant to Section
1.3, no Party shall have any liability or further obligation to any other Party;
provided, however, that nothing shall relieve either Party from liability for
any breach hereof.
1.5 Waiver. At any time prior to Closing, either Party hereto may (i) extend
the time for the performance of any of the obligations or other acts of the
other Party hereto, (ii) waive any inaccuracies in the representations and
warranties contained herein or in any document delivered pursuant hereto or
(iii) waive compliance with any of the agreements or conditions contained
herein. Any such extension or waiver shall be valid only if set forth in an
instrument in writing signed by the Party to be bound thereby.
SECTION 2
CONDITIONS PRECEDENT TO CLOSING
2.1 Conditions Precedent to Obligations of Buyer. The obligation of Buyer to
consummate the transactions contemplated by this Agreement shall be subject to
the satisfaction of, or waiver by, Buyer, on or prior to the Closing Date, of
the following Conditions Precedent:
2.1.1 Funds Available. Buyer obtaining lines of credit or other financing, on
terms and conditions reasonably acceptable to Buyer, to enable Buyer to pay at
Closing the Purchase Price.
2.1.2 No Prohibition. The consummation of the transactions contemplated in this
Agreement shall not be prohibited by any Legal Requirement, and there shall not
have been any action
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taken by, nor any failure to act on the part of, any Governmental Authority,
which prohibits the consummation of the transactions contemplated by this
Agreement.
2.1.3 No Proceedings. No action, suit or proceeding before any Governmental
Authority shall be pending or threatened against Sellers or the Company
challenging the validity or legality of the transactions contemplated by this
Agreement, which action, suit or proceeding could reasonably be expected to have
a Material Adverse Effect on the Company or Buyer or on Sellers' ability to
carry out the transactions contemplated hereunder.
2.1.4 Performance of Covenants. Sellers shall have performed and complied in
all material respects with each and every covenant, undertaking, agreement and
condition required by this Agreement to be performed or complied with by Sellers
prior to or on the Closing Date and Buyer shall have received at the Closing a
certificate, dated as of the Closing Date, executed by an executive officer of
each of the Sellers to such effect.
2.1.5 Representations and Warranties. The representations and warranties of
Sellers contained herein shall be true and correct in all material respects as
of the date hereof and as of the Closing Date (in the latter case as though such
representations and warranties were made at and as of the Closing Date and in
each case except where such representation or warranty is expressly made only as
of another specific date); and Buyer shall have received at the Closing a
certificate, dated as of the Closing Date, executed by an executive officer of
each of the Sellers to such effect.
2.1.6 Agreement with Vlasic. Buyer shall have received documentation evidencing
the execution of a supply agreement between the Company and Vlasic,
substantially in the terms of the supply agreement attached hereto as Exhibit E
(hereinafter referred to as the "Supply Agreement with Vlasic"). Sellers hereby
acknowledge that a substantial portion of the Purchase Price will be financed by
Buyer with certain banks and financial institutions and, in such regard, Buyer
will be required to cause the Company to assign its rights under the Supply
Agreement with Vlasic, including any accounts receivables arising thereunder, as
a security interest, to guarantee repayment of such financing. By these means,
and as part of the satisfaction of the Condition Precedent described in this
Section 2.1.6, Sellers agree to cause Vlasic to consent to such assignment,
including the making of any changes to the terms of the Supply Agreement with
Vlasic reasonably requested by such banks or financial institutions in
connection with the granting of such financing and security interest, all
pursuant to terms and conditions customary for such type of financing
transactions.
2.1.7 Agreement with ▇▇▇▇▇▇▇▇ Soup Company. Buyer shall have received
documentation evidencing the execution of a supply agreement between the Company
and ▇▇▇▇▇▇▇▇ Soup Company (hereinafter referred to as "▇▇▇▇▇▇▇▇"), under the
terms and conditions acceptable to ▇▇▇▇▇▇▇▇, the Company and Buyer, based upon
the letter of intent dated April 27, 1999, attached hereto as Exhibit F
(hereinafter referred to as the "Supply Agreement with ▇▇▇▇▇▇▇▇"). Sellers
hereby acknowledge that a substantial portion of the Purchase Price will be
financed by Buyer with certain banks and financial institutions and, in such
regard, Buyer will be required to cause the Company to assign its rights under
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the Supply Agreement with ▇▇▇▇▇▇▇▇, including any accounts receivables arising
thereunder, as a security interest, to guarantee repayment of such financing. By
these means, Sellers acknowledge that, as part of the satisfaction of the
Condition Precedent described in this Section 2.1.7, ▇▇▇▇▇▇▇▇ shall consent to
such assignment, including the making of any changes to the terms of the Supply
Agreement with ▇▇▇▇▇▇▇▇ reasonably requested by such banks or financial
institutions in connection with the granting of such financing and security
interest, all pursuant to terms and conditions customary for such type of
financing transactions.
2.1.8 Compliance with certain Conditions Precedent to Obligations of Sellers.
Within 8 (eight) Business Days from the date hereof, Buyer shall have received
written confirmation from Sellers concerning the satisfaction of the Conditions
Precedent described in Sections 2.2.6, 2.2.7, 2.2.8 and 2.2.9.
2.1.9 Buyer's Board Approval. The Board of Directors of Buyer shall have
ratified the execution and delivery of this Agreement by Buyer's representative.
2.2 Conditions Precedent to Obligations of Sellers. The obligations of
Sellers to consummate the transactions contemplated by this Agreement shall be
subject to the satisfaction of, or waiver by Sellers, on or prior to the Closing
Date, of each of the following Conditions Precedent:
2.2.1 No Prohibition. The consummation of the transactions contemplated in this
Agreement shall not be prohibited by any Legal Requirement, and there shall not
have been any action taken by, nor any failure to act on the part of, any
Governmental Authority, which prohibits the consummation of the transactions
contemplated by this Agreement.
2.2.2 No Proceedings. No action, suit or proceeding before any Governmental
Authority shall be pending or threatened against Buyer challenging the validity
or legality of the transactions contemplated by this Agreement, which action,
suit or proceeding could reasonably be expected to have a Material Adverse
Effect on Sellers or on Buyer's ability to carry out the transactions
contemplated hereunder.
2.2.3 Performance of Covenants. Buyer shall have performed and complied in all
material respects with each and every covenant, undertaking, agreement and
condition required by this Agreement to be performed or complied with by Buyer
prior to or on the Closing Date and Sellers shall have received at the Closing a
certificate, dated as of the Closing Date, executed on behalf of Buyer by an
executive officer of Buyer to such effect.
2.2.4 Representations and Warranties. The representations and warranties of
Buyer contained herein shall be true and correct in all material respects as of
the date hereof and as of the Closing Date (in the latter case as though such
representations and warranties were made at and as of the Closing Date and in
each case except where such representation or warranty is expressly made only as
of another specific date); and Sellers shall have received at the Closing a
certificate, dated as of the Closing Date, executed on behalf of Buyer by an
executive officer of Buyer to such effect.
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2.2.5 Commitment Letter. Compliance with certain Condition Precedent to
Obligations of Buyer. Within 7 (seven) Business Days from the date hereof,
Sellers shall have received from Buyer one or more commitment letters from
Buyer's sources of financing with respect to the Purchase Price in form
reasonably acceptable to Sellers and written confirmation from Buyer concerning
the satisfaction of the Condition Precedent described in Section 2.1.9.
2.2.6 Required Banks' Consent. Certain Required Banks under a certain Amended
and Restated Credit Agreement, dated as of September 30, 1998, among Vlasic, the
Banks party thereto, The Chase Manhattan Bank, as Syndication Agent, and ▇▇▇▇▇▇
Guaranty Trust Company of New York, as Administrative Agent and Collateral
Agent, shall have consented to the sale by Sellers of the Transfer Shares. In
addition, the Administrative and the Collateral Agent shall have granted their
consent, effective as of the Closing Date, to the total release of the
outstanding pledge granted on 66% of the Transfer Shares pursuant to a certain
Security Agreement dated as of September 30, 1998, among Vlasic, the Subsidiary
Guarantors party thereto and ▇▇▇▇▇▇ Guaranty Trust Company of New York as
Collateral Agent (the "Outstanding Pledge").
2.2.7 Vlasic's Board Approval. The Board of Directors of Vlasic shall have
authorized the sale by Sellers of the Transfer Shares.
2.2.8 Favorable Tax Opinion. Campbell's Consent. Pursuant to the terms of a
certain Tax Sharing and Indemnification Agreement made by and among ▇▇▇▇▇▇▇▇,
Vlasic and Vlasic's subsidiaries, dated as of March 30, 1998 (hereinafter
referred to as the "Tax Agreement"), Sellers shall have received (i) a
satisfactory legal opinion under the terms of Section 6.2 (c) of the Tax
Agreement (hereinafter referred to as the "Tax Opinion"), and (ii) an
acknowledgment from ▇▇▇▇▇▇▇▇ that it has received the Tax Opinion and that it is
in form and substance satisfactory to ▇▇▇▇▇▇▇▇ under the terms of Section 6.2
(c) of the Tax Agreement.
2.2.9 Sellers' Boards Approval. The Board of Directors of each of the Sellers
shall have ratified the execution and delivery of this Agreement by each
Seller's representative.
SECTION 3
CLOSING
The Closing of the transactions contemplated by this Agreement shall occur on
the earlier to occur of (i) 60 (sixty) calendar days after the date hereof, (ii)
5 (five) 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, at the offices of ▇▇▇▇▇▇▇▇▇, Laprida & Asociados,
located at ▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇. All
of the following deliveries and transactions shall be concurrently completed on
the Closing Date:
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3.1 Deliveries of Sellers and/or the Company. On or prior to the Closing
Date, Sellers and/or the Company shall furnish to Buyer the following items,
documents and writings, all of which shall be in form and substance satisfactory
to Buyer, provided, however, that any documents which are in the form of the
Schedules corresponding thereto shall be deemed to be satisfactory to Buyer:
(i) In the form attached hereto as Schedule 3.1 (i), signed receipt
dated as of the Closing Date, duly issued by Sellers, acknowledging the
payment by Buyer of the Purchase Price, as provided for in Section 1.1.2;
(ii) In the form attached hereto as Schedule 3.1 (ii), signed evidence
of (a) the resignation of all of the principal and deputy members of the
Board of Directors and Supervisory Committee of the Company holding
office prior to the Closing Date (hereinafter referred to as,
respectively, the "Former Directors" and the "Former Committee Members"
and, the Former Directors and the Former Committee Members, hereinafter
referred to as the "Former Members") and (b) the release or waiver by the
Former Members of all claims of any nature against any of Sellers, the
Company, or Buyer;
(iii) In the form attached hereto as Schedule 3.1 (iii), signed evidence
of the adoption of appropriate resolutions by the Shareholders' Meeting
of the Company to the following effect: (a) approval of the performance
in office of every Former Member and (b) appointment, effective as of the
Closing Date, of all of the individuals designated by Buyer as principal
and deputy members of the Board of Directors and Supervisory Committee of
the Company. To such effect, Buyer shall notify Sellers in writing at
least 2 (two) Business Days prior to the Closing Date the name of all
such individuals;
(iv) In the form attached hereto as Schedule 3.1 (iv), the original
share certificates issued by the Company evidencing Sellers' ownership of
the Transfer Shares, along with the original transfer and assignment
letters of the Transfer Shares issued and signed on behalf of Sellers,
with such signatures duly notarized as to the identity and authority of
the individual signing on each Seller's behalf, and addressed to the
corresponding authority of the Company;
(v) Written evidence that the entry or entries in the Stock Registry
Book of the Company regarding the transfer of the Transfer Shares from
Sellers to Buyer have been made;
(vi) All original stock books, minute books, and other corporate
records of the Company, as listed in Schedule 3.1 (vi);
(vii) The certificates referred to in Sections 2.1.4 and 2.1.5;
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(viii) Written evidence of the execution of the supply agreements
referred to in Sections 2.1.6 and 2.1.7; and
(ix) Written evidence of the total release of the Outstanding Pledge
referred to in Section 2.2.6.
3.2 Deliveries of Buyer. On or prior to the Closing Date, Buyer shall take
the following actions and furnish Sellers the following items, documents and
writings, all of which shall be in form and substance satisfactory to Sellers,
provided, however, that any documents which are in the form of the Schedules
corresponding thereto shall be deemed to be satisfactory to Sellers:
(i) The Purchase Price as provided in Section 1.1.2; and
(ii) The certificates referred to in Sections 2.2.3 and 2.2.4.
3.3 Aborted Closing Date. In the event that any of the acts or documents
referred to in Sections 3.1 and 3.2 hereof are not consummated or delivered, as
the case may be, on the Closing Date, then except otherwise decided by the Party
having rights to the benefit of the consummation of said acts or the delivery of
said documents, the sale and transfer of the Transfer Shares shall not be deemed
perfected and, consequently, all the acts carried out and all the documents
delivered on the aborted Closing Date shall be null and void for both Parties,
which shall revert to the situation in which they were immediately before the
execution of this Agreement.
SECTION 4
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLERS
The Sellers jointly and severally represent, warrant and covenant to Buyer, as
of the date hereof and as of the Closing Date (or such other date as may be
expressly provided) as follows:
4.1 Organization, Qualification. The Sellers are duly organized, validly
existing and in good standing under the laws of the State of Delaware, United
States of America. The Sellers are duly qualified or licensed to do business and
are in good standing under the laws of each jurisdiction in which the character
of the Sellers' business makes such qualification necessary.
4.2 Good Title to Transfer Shares. Sellers have: (i) good, valid, marketable
and exclusive title to the Transfer Shares, free and clear of any Encumbrances;
and (ii) full right and lawful authority to transfer and assign to Buyer the
Transfer Shares. All of the Transfer Shares are duly authorized and validly
issued, fully paid, nonassessable and free and clear of any liens, preferential
rights, priorities, claims, options, charges or other Encumbrances, except for
the Outstanding Pledge which shall be totally released as of the Closing Date as
provided in Section 2.2.6. There are no outstanding securities convertible into
or exchangeable for capital stock of the Company, or options, warrants or other
rights
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to purchase or subscribe for capital stock of the Company or contracts,
commitments, agreements, understandings or arrangements of any kind to which the
Company or any of the Sellers is a party relating to the issuance of any capital
stock of the Company, any such convertible or exchangeable securities, or any
such options, warrants or rights. No Person has any preemptive rights, rights of
first refusal, "tag along" rights, rights of co-sale or any similar rights with
respect to the Transfer Shares. There are no pending increases of capital of the
Company nor any capital contributions made to the Company pending capitalization
or reimbursement to any Person.
4.3 Capitalization of the Company. The authorized capital stock of the
Company is A $32,000,000 (Pesos Thirty Two Million) represented by 32,000,000
ordinary, nominative, non-endorsable shares of A $ 1 (Pesos one) nominal value
each and 1 (one) vote per share.
4.4 Authority and Validity. Sellers have the power and authority to execute
and deliver this Agreement, to perform their obligations hereunder, and to
consummate the transactions contemplated by this Agreement in their sole
discretion, without any authorization from any Person. All actions necessary to
approve the execution, delivery and performance of this Agreement have been
taken. Upon the due execution and delivery of this Agreement by Sellers,
assuming the due authorization, execution and delivery hereof by Buyer, this
Agreement shall constitute the legal, valid and binding obligation of Sellers,
enforceable against Sellers in accordance with its terms and the laws of the
State of New York, except insofar as enforceability may be affected by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
now or hereafter in effect affecting creditor's rights generally, or by
principles governing the availability of equitable remedies.
4.5 No Conflict or Violation. The execution, delivery and performance of this
Agreement by Sellers and the completion and performance of the transactions
contemplated hereby do not: (i) violate any provision of the charter, bylaws or
any other organizational document of any of Sellers or of the Company; (ii)
constitute a material violation of any Legal Requirement; (iii) require any
consent, approval or authorization of, or any filing with or notice to, any
Person; or (iv): (a) violate, conflict with or constitute a breach of or default
under; (b) permit or result in the termination, suspension or modification of;
(c) result in the acceleration of (or give any Person the right to accelerate)
the performance of Sellers under; or (d) result in the creation or imposition of
any Encumbrance under any Contract or any other instrument affecting any of the
Transfer Shares.
4.6 Disclosure. No representation or warranty by Sellers in this Agreement,
or any statement, list, certificate, or other document furnished or to be
furnished by Sellers pursuant to this Agreement, contains any untrue statement
of material fact, or omits to state a material fact required to be stated
therein or necessary to make the statements contained therein not misleading in
light of the circumstances in which such statements were made.
4.7 Solvency. The Sellers have not: (i) made a general assignment for the
benefit of their creditors; (ii) filed any voluntary petition in
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bankruptcy or suffered the filing of any involuntary petition in bankruptcy by
their creditors; (iii) suffered the appointment of a receiver to take possession
of all or substantially all of their assets or properties; (iv) suffered the
attachment or other judicial seizure of all or substantially all of their
assets; or (v) admitted in writing their inability to pay their debts as they
come due.
4.8 No other agreements to sell the Transfer Shares or Assets. The Sellers do
not have any obligations or agreements of any kind, absolute or contingent, to
any Person other than Buyer to sell, transfer, convey or otherwise dispose of
any of the Transfer Shares, or to effect any merger, consolidation or other
reorganization of the Company, or to sell any material portion of the Assets, or
to enter into any agreement with respect thereto.
4.9 Conduct of Business. From the date hereof through the Closing Date or
until termination under Section 1.3, Sellers (i) shall cause the Company, except
as consented to by Buyer in writing, to continue to be managed by ▇▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ as General Manager and to operate the Company's Business in the
ordinary course and in accordance with past practice, and (ii) shall not take
any action inconsistent with this Agreement. Without limiting the generality of
the foregoing, unless consented to by Buyer in writing, Sellers shall cause the
Company not to:
(i) change or amend its articles of incorporation, bylaws or other
organizational documents;
(ii) declare or pay any dividends, or make any distributions in respect of any
of the shares of its capital stock or other equity interests, or repurchase or
redeem any issued and outstanding shares of its capital stock or other equity
interests;
(iii) issue any shares of the capital stock or any other equity interests;
(iv) sell, assign, transfer, convey, lease or otherwise dispose of any
interest in any material Asset; and
(v) acquire by merger or consolidation with, or merge or consolidate with, or
purchase substantially all of the assets of, or otherwise acquire any material
assets or business of any corporation, partnership, association or other
business organization or division thereof.
4.10 Notice of Changes. Sellers will promptly notify Buyer of any
circumstance, event or action by Sellers that causes any statement made by
Sellers in this Agreement to be inaccurate or incomplete in any material
respect.
4.11 No Other Representation or Warranty. Notwithstanding anything to the
contrary contained in this Agreement, it is the explicit intent of the Parties
that Sellers are making no representation or warranty whatsoever, express or
implied, except for those representations and warranties contained in this
Section 4.
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SECTION 5
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER
Buyer represents and warrants to Sellers as of the date hereof and as of the
Closing Date:
5.1 Organization. Power and Authority. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the Cayman
Islands. Buyer is duly qualified or licensed to do business and is in good
standing under the laws of each jurisdiction in which the character of Buyer's
business makes such qualification necessary.
5.2 Authorization. Buyer has the required power and authority to execute and
deliver this Agreement, to consummate the transactions contemplated hereunder
and to perform its obligations under this Agreement, at its sole discretion,
without any authorization from any Person. This Agreement is duly executed and
delivered by Buyer and, assuming the due authorization, execution and delivery
hereof by Sellers, constitutes the legal, valid and binding obligation of Buyer,
enforceable against Buyer in accordance with its terms and the laws of the State
of New York.
5.3 No Conflict or Violation. The execution, delivery and performance of this
Agreement by Buyer do not: (i) violate any provision of the Articles of
Association or bylaws of Buyer; (ii) violate, conflict with or result in the
breach or termination of, or otherwise give any third Person the right to
terminate, or constitute a default under the terms of, any mortgage, bond,
indenture or material agreement to which Buyer is a party or by which Buyer or
any of its property or assets may be bound or materially affected; (iii) require
any consent, approval or authorization of, or any filing with or notice to, any
Person; (iv) (a) violate, conflict with or constitute a breach of or default
under, (b) permit or result in the termination, suspension or modification of,
(c) result in the acceleration of (or give any Person the right to accelerate)
the performance of Buyer under, or (d) result in the creation or imposition of
any Encumbrance under, any instrument or other agreement to which Buyer is a
party or by which any of its assets is bound or affected; or (v) violate any
judgment, order, injunction, decree or award of any court, administrative agency
or governmental body against, or binding upon, Buyer or upon the property or
business of Buyer.
5.4 Notice of Changes. Buyer will promptly notify Sellers of any
circumstance, event or action by Buyer that causes any statement made by Buyer
in this Agreement to be inaccurate or incomplete in any material respect.
5.5 No Other Representation or Warranty. Notwithstanding anything to the
contrary contained in this Agreement, it is the explicit intent of the Parties
that Buyer is making no representation or warranty whatsoever, express or
implied, except for those representations and warranties contained in this
Section 5.
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SECTION 6
DEFAULTS AND REMEDIES
6.1 Default. A Party shall be in default (i) if, at any time, there has been
a material violation or breach of its representations, warranties, or covenants
contained herein, which violation or breach has not been cured within 10 (ten)
Business Days from receipt by the defaulting Party of a notice from the other
Party of such violation or breach (or, if such violation or breach cannot be
cured within 10 (ten) Business Days, within an additional 10 (ten) Business
Days, provided that the defaulting Party is making ongoing diligent efforts to
cure such violation or breach); or (ii) if all Conditions Precedent contemplated
in Section 2 have been satisfied or waived by the Party having rights to the
benefit of such Conditions Precedent and the defaulting Party shall fail or
refuse to consummate the Closing within 5 (five) Business Days of receiving
notice to that effect from the other Party.
6.2 Election of Remedies. If Sellers are in default hereunder pursuant to
Section 6.1, then Buyer, at its election and as its sole and exclusive remedy,
may either (i) waive such objections, defects or imperfections of Sellers'
performance and consummate the Closing with respect thereto; (ii) elect to seek
specific performance by Sellers of their obligations to sell the Transfer
Shares; or (iii) terminate this Agreement. If Buyer is in default hereunder
pursuant to Section 6.1, then Sellers, as their sole and exclusive remedy, may
terminate this Agreement.
6.3 Termination of Provisions. The provisions of Sections 6.1 and 6.2 shall
cease to have any application after the Closing.
SECTION 7
MISCELLANEOUS
7.1 Survival. The representations and warranties of the Parties hereto
contained herein shall survive the Closing and shall remain in full force and
effect for a period of 1 (one) year after the Closing Date.
7.2 Entire Agreement. This Agreement constitutes the sole understanding of
the Parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings of the Parties with respect to the transactions
contemplated by this Agreement. This Agreement shall not be amended, modified,
or supplemented without the prior written consent of both Buyer and Sellers.
7.3 Waiver of Compliance; Consents. Except as otherwise provided in this
Agreement, any failure of any of the Parties to comply with any obligation,
covenant, agreement or condition herein may be waived by the Party entitled to
the benefits thereof only by a written instrument signed by such Party granting
such waiver, but such waiver or failure to insist upon strict compliance with
such obligation, covenant, agreement or condition shall not operate as a waiver
of, or estoppel with respect to, any subsequent or other failure. Whenever this
Agreement requires or permits consent by or on behalf of any of the Parties,
such consent shall be given in writing in a manner consistent with the
requirements
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for a waiver of compliance as set forth in this Section 7.3.
7.4 Expenses. Each Party shall pay all costs and expenses incurred by it, or
on its behalf, in connection with this Agreement and the transactions
contemplated hereby, including, without limiting the generality of the
foregoing, fees and expenses of its own financial consultants, brokers, agents,
accountants and legal advisors.
7.5 Brokers' Fees. No brokers or intermediaries have been used by any of the
Parties in connection with the transactions contemplated in this Agreement. To
the extent that any such broker or intermediary has been used, the commissions
or other payments which such broker or intermediary may have the right to claim,
shall be borne exclusively by the Party who used said broker or intermediary.
7.6 Headings. The descriptive headings contained in this Agreement are for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
7.7 Notices. Each Party shall promptly give written notice to the other Party
upon becoming aware of the occurrence, or impending or threatened occurrence, of
any event which could cause or constitute a breach of any of its
representations, warranties or covenants contained or referenced in this
Agreement. All notices or other communications under this Agreement shall be in
writing and shall be given (and shall be deemed to have been given upon receipt)
by delivery in person, by facsimile or other standard form of telecommunication,
or by registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
To Buyer:
Swift Armour Holdings Co.
Caledonian House
▇▇▇▇▇▇▇ Street
▇▇▇▇▇▇ Town, Grand Cayman
Cayman Islands
Attention: President
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
Tel: (5411) ▇▇▇▇-▇▇▇▇
Fax: (5411) ▇▇▇▇-▇▇▇▇
▇▇
▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Asociados
▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇
(▇▇▇▇) ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
Tel: (5411) ▇▇▇▇-▇▇▇▇
Fax: (5411) ▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
To Sellers:
Aligar, Inc.
▇▇▇▇▇▇, Inc.
Vlasic Plaza
Six Executive Campus
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: President
with a copy to:
Vlasic Foods International Inc.
Six Executive Campus
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: General Counsel
or to such other addresses as any Party may have furnished to the other Party in
writing in accordance with this Section 7.7.
7.8 Severability. Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction. If any provision of this Agreement is
so broad as to be unenforceable, the provision shall be interpreted to be only
so broad as to be enforceable.
7.9 Exhibits and Schedules; Initialization. Each Exhibit and Schedule of this
Agreement shall be considered incorporated into this Agreement and made a part
hereof. ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, on behalf of Buyer, and ▇▇. ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, on behalf of Sellers, proceed to insert their initials on each of the
pages of all Exhibits and Schedules of this Agreement for identification
purposes.
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7.10 Responsibility for Taxes. Each Party shall be solely responsible for all
income, transfer, capital gains and other taxes applicable to it as a result of
the transaction contemplated under this Agreement.
7.11 Governing Law. Consent to Jurisdiction.
(i) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York applicable to contracts executed
in and to be performed entirely within that State.
(ii) All actions and proceedings arising out of or relating to this
Agreement shall be heard and determined in a New York state or federal
court of the United States of America sitting in the City of New York
(hereinafter referred to as a "New York Court"), and the Parties hereto
hereby irrevocably submit to the jurisdiction of such courts in any such
action or proceeding. Each Party hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner
provided by law. To the extent that any Party hereto has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal
process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to
itself or its property, such Party hereby irrevocably waives such
immunity in respect of its obligations under this Agreement. Sellers
hereby irrevocably appoint CT Corporation System, with an office on the
date hereof at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, as
their authorized agent (hereinafter referred to as the "Sellers'
Authorized Agent") upon whom process may be served in any such action,
suit or proceeding in any New York Court. Sellers represent and warrant
that Sellers' Authorized Agent has agreed to act as said agent for
service of process, and agrees to take any and all action, including the
filing of any and all documents and instruments, that may be necessary to
continue such appointment in full force and effect as aforesaid. Service
of process upon the Sellers' Authorized Agent in the manner prescribed by
applicable law and written notice of such service by Buyer to Sellers
pursuant to Section 7.7 shall be deemed, in every respect, effective
service of process upon Sellers. Buyer hereby irrevocably appoints CT
Corporation System, with an office on the date hereof at ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, as its authorized agent
(hereinafter referred to as the "Buyer's Authorized Agent") upon whom
process may be served in any such action, suit or proceeding in any New
York Court. Buyer represents and warrants that the Buyer's Authorized
Agent has agreed to act as said agent for service of process, and agrees
to take any and all action, including the filing of any and all documents
and instruments, that may be necessary to continue such appointment in
full force and effect as aforesaid. Service of process upon the Buyer's
Authorized Agent in the manner prescribed by applicable law and written
notice of such service by Sellers to Buyer pursuant to Section 7.7 shall
be deemed, in every respect, effective service of process upon Buyer.
Nothing in this Agreement shall
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affect any right that any Party may otherwise have to serve legal process
in any other manner permitted by applicable law.
(iii) Each Party hereto irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that
it may now or hereafter have to the laying of venue of any suit, action
or proceeding arising out of or relating to this Agreement in any New
York Court. Each Party hereto hereby irrevocably waives, to the fullest
extent permitted by applicable law, the defense of an inconvenient forum
to the maintenance of such action or proceeding in any such court.
7.12 Governing Language. This Agreement has been prepared and signed in the
English language. In the event of any conflict or inconsistency between the
English language version and any translation thereof made for any purpose, the
English language version shall govern the interpretation and construction hereof
and for any and all other purposes, except as may be required by applicable law.
7.13 Counterparts. This Agreement may be executed simultaneously in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Delivery of an executed
counterpart of the signature page of this Agreement by facsimile transmission
(together with the remaining pages of this Agreement and of all the Exhibits and
Schedules, containing on each such page the initials of the authorized
representative of each of the Parties) shall be effective as delivery of a
manually executed counterpart of this Agreement.
IN WITNESS WHEREOF, Sellers and Buyer have caused this Agreement to be executed
as of the date first written above by their respective officers hereunto duly
authorized.
ALIGAR, INC.
By:
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇, INC.
By:
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
SWIFT ARMOUR HOLDINGS CO.
By:
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Title: President
