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EXHIBIT 2.5
AN ASTERISK [*] DENOTES CONFIDENTIAL INFORMATION
ACQUISITION AGREEMENT (this "AGREEMENT"), dated as of December 23,
1998, among
[*******************************and********************************************
********************************and********************************************]
"Sellers").
WHEREAS, [******] own approximately [**]% and approximately [**]%,
[*******], of all of the outstanding shares of capital stock (the "TARGET
Shares") of Banana Marketing Belgium N.V., a company incorporated under the laws
of Belgium with its principal offices at [****************] (the "TARGET
Company");
WHEREAS, [*****] and [*******] have agreed to sell and Purchaser has
agreed to buy all of the TARGET Shares; and
WHEREAS, the respective Boards of Directors of Sellers have reviewed
and approved this Agreement and deem it advisable and in the best interests of
Sellers that Sellers sell the TARGET Shares to Purchaser pursuant to the terms
and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants, agreements and undertakings contained or referred to in
this Agreement, and subject to the satisfaction or waiver of the conditions of
this Agreement, Sellers and Purchaser hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. The following terms when used in this Agreement have
the meanings set forth below:
"AFFILIATE" means, as to any Person, any Person which, directly or
indirectly, controls, is controlled by, or is under common control with, such
Person. For the purposes of this definition, "control" (including, with
correlative meaning, the terms "controlling" and "controlled") means the
possession of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.
"ANNUAL FINANCIAL STATEMENTS" has the meaning set forth in Section 3.3.
"BANANA BOX" means a 40 lb. box of bananas or its metric equivalent of
18.14 kilograms.
"BANANA PURCHASE AGREEMENT" means the Banana Purchase Agreement in the
form attached hereto as Exhibit A.
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"BELGIAN GAAP" means the Belgian Accounting Rules and Regulations, the
accounting principles adopted by the TARGET Company and generally accepted
accounting principles in Belgium as in effect from time to time, which are
applicable to the circumstances as of the date of determination.
"BUSINESS DAY" means any day other than a day on which banks are
permitted or required by law to be closed in the City of New York or the Cayman
Islands.
"CLAIM NOTICE" has the meaning set forth in Section 7.3(a).
"CLOSING" has the meaning set forth in Section 2.3.
"CLOSING DATE" has the meaning set forth in Section 2.3.
"COLLECTIVE RULES" has the meaning set forth in Section 3.13.
"CONTEST" has the meaning set forth in Section 8.6.
"CONTRACT" means any contract, agreement, indenture, note, bond, loan,
instrument, lease, conditional sale contract, mortgage, license, franchise,
insurance policy, commitment or other agreement, whether written or oral.
"DAMAGES" has the meaning set forth in Section 7.1.
"DIRECT CLAIM" has the meaning set forth in Section 7.3(a).
"EMPLOYMENT AGREEMENTS" has the meaning set forth in Section 3.13.
"ENVIRONMENT" means the ambient air, surface water, drinking water,
groundwater, land surface, subsurface strata, river sediment, plant or animal
life, and other natural resources.
"ENVIRONMENTAL CLAIM" means any written notice of violation, Legal
Proceeding, Lien, demand or Order by any Governmental Body or any Person for
personal injury, property damage or damage to natural resources or the
Environment, or for fines, penalties, or restrictions resulting from or based
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upon: (i) the existence, or the continuation of the existence, of a Release of
or exposure to, any Hazardous Material, (ii) the environmental aspects of the
management, storage, treatment or disposal of Hazardous Materials, or (iii) the
violation, or alleged violation, of any Environmental Law or Environmental
Permit.
"ENVIRONMENTAL LAW" means any Law, as in effect prior to and as of the
Closing, relating to: (i) pollution of or damage to the Environment, (ii)
protection, cleanup, preservation, and reclamation of the Environment, (ill)
Release of Hazardous Materials, (iv) management, storage, treatment and disposal
of or exposure to Hazardous Materials and (v) the health and safety of workers
and other persons.
"ENVIRONMENTAL PERMIT" means any Permit, approval, authorization,
license variance, registration, or permission required under any applicable
Environmental Law.
"EU BANANA IMPORT LICENSE" means any import license issued pursuant to
Title II of Commission Regulation No. 2362/98 of 28 October, 1998.
"EXECUTIVE OFFICERS" means the Board of Directors of Sellers and the
TARGET Company and Sellers' and the TARGET Company's most senior executive,
operations, financial, and legal officers.
"FACILITIES" means the buildings, plants, improvements, structures and
fixtures, including heating, ventilation and air conditioning systems, roof;
foundation and floors, located at any Real Property; PROVIDED, HOWEVER, as to
the Leased Properties, Facilities shall include only such of the foregoing for
which the TARGET Company has maintenance or replacement responsibility under the
subject leasehold agreement.
"FINANCIAL STATEMENTS" means the Annual Financial Statements and the
Interim Financial Statement (as defined in Section 3.3(a)).
"GOVERNMENTAL BODY" means any government or governmental or regulatory
body thereof, or political subdivision thereof; whether supranational, federal,
state, local or foreign, or any agency or instrumentality thereof, or any court
or arbitrator (public or private).
"HAZARDOUS MATERIAL" means any substance, material or waste, or any
constituent thereof, which is regulated by or forms the basis of liability under
any Environmental Law in any jurisdiction in which the TARGET Company conducts
business, or any material or substance which is defined as a "hazardous waste,"
"hazardous material," "hazardous substance," "extremely hazardous waste" or
"restricted hazardous waste," "subject waste," "contaminants," "toxic waste" or
"toxic substance" or any analogous terms under any such Environmental Law,
including petroleum products, asbestos and polychlorinated biphenyls.
"INDEMNIFIED PARTY" has the meaning set forth in Section 7.3.
"INDEMNIFYING PARTY" has the meaning set forth in Section 7.3.
"INTELLECTUAL PROPERTY" means all trade or service marks or names,
including all trade or service xxxx registrations (and any applications
therefor), copyrights, copyright registrations, copyright applications,
maskworks and any applications therefor, designs and any applications therefor,
technology knowhow, computer software programs or applications (in both code and
source forms), Internet domains, customer lists, trade secrets and tangible or
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intangible proprietary information or material, and patent rights, including
issued patents, applications, divisions, continuations and
continuations-in-part, reissues and patents of additions.
"INTERIM FINANCIAL STATEMENT" has the meaning set forth in Section 3.3.
"JUDGMENT" means any and all judgments, orders, directives, rulings,
decisions, writs, injunctions (temporary, preliminary or permanent) decrees or
awards of any Governmental Body and any arbitration award.
"KNOWLEDGE OF" or "KNOWN TO" means, with respect to matters relating to
either Sellers or the TARGET Company, the knowledge of or known to the Executive
Officers of Sellers and/or the TARGET Company exercising reasonable care in the
exercise of their duties.
"LAW" means any applicable federal, state, local or foreign law
(including common law), statute, code, ordinance, rule or regulation.
"LEGAL PROCEEDING" means any judicial, administrative or arbitral
action, suit, proceeding, claim or governmental proceeding.
"LICENSE REGULATION" means Commission Regulation (EC) No. 2362/98 dated
October 28, 1998.
"LIEN" means any lien, pledge, mortgage, deed of trust, security
interest, claim. charge, easement or other real estate declaration, covenant,
condition, restriction, servitude or encumbrance whatsoever.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the
business, prospects (for the calendar year 1999), assets, results of operations,
or financial condition of the TARGET Company.
"MATERIAL CONTRACT" means, with respect to the TARGET Company, except
as otherwise provided:
(i) any Contract which, in any case, involves future payments
(including reasonably anticipated potential payments) thereunder of [******]or
more in the aggregate (or its equivalent in any currency); and
(ii) any Contract which:
(A) is with any labor union or association representing employees;
(B) limits or affects the freedom of the TARGET Company to engage in
any line of business in any geographic area;
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(C) relates to the borrowing of money exceeding [*******]or the
guaranteeing of any such borrowing;
(D) is a material partnership, joint venture, shareholders' or other
similar contract with any Person;
(E) other than this Agreement (A) limits or contains restrictions on
the ability of the TARGET Company to: (1) declare or pay dividends on, to make
any other distribution in respect of or to issue or purchase, redeem or
otherwise acquire the capital stock of the TARGET Company, (2) incur
indebtedness, (3) incur or suffer to exist any lien, (4) purchase or sell any
assets and properties, to change the lines of business in which it participates
or engages, or (5) engage in any merger or other business combination or (B)
requires the TARGET Company to maintain specified financial ratios or levels of
net worth or other indicia of financial condition;
(F) is with any of the stockholders of Sellers or any Subsidiary or
Affiliate thereof;
(G) is to acquire or dispose of all or part of the equity securities of
any business and any buy/sell or other Contract relating to the purchase or sale
of capital stock of the TARGET Company or its Subsidiaries;
(H) is a material license (whether as licensor or licensee) or similar
agreement permitting the use of any Intellectual Property rights;
(I) is for the importation, transportation, customs clearance,
warehouse and distribution of fresh fruit or vegetables; or
(J) is a broker or finder's agreement.
"ORGANIZATIONAL DOCUMENTS" means all documents relating to the
formation, establishment and capital stock of a Person.
"PARENT" means, with respect to any Person, such Person's corporate
stockholder and any corporation that directly or indirectly controls such
corporate stockholder.
"PERMIT" means an approval, authorization, consent, franchise, license,
registration, waiver, variance, permit or certificate by or from any
Governmental Body.
"PERMITTED EXCEPTIONS" means (i) any Lien for current taxes not yet due
or payable or the validity of which is being contested in good faith by
appropriate proceedings and for which adequate reserves have been established in
the Financial Statements if required by Belgian GAAP, (ii) any statutory
mechanics', carriers', workmen's, repairmen's, materialmen's, warehousemen's,
and any other similar Liens imposed by Law arising or incurred in the ordinary
course of business, (iii) such other Liens and defects in title which, together
with all other Permitted Exceptions, would not in the aggregate have a Material
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Adverse Effect on the TARGET Company, (iv) easements, rights of way and any
other encumbrances on any material real property that do not materially and
adversely affect the use of such property for its present purposes, (v) pledges
or deposits to secure public or statutory obligations or other similar
obligations not incurred in connection with the borrowing of money, the
obtaining of advances, or the deferred purchase price of property, (vi)
attachment, judgment and other similar Liens arising in connection with court
proceedings, provided that the execution or other enforcement of such Liens is
effectively stayed and the claims secured thereby are currently being contested
in good faith by appropriate proceedings and for which adequate reserves have
been established in the Financial Statements if required by Belgian GAAP, (vii)
Liens expressly disclosed or expressly reflected in the Financial Statements,
(viii) the interests of lessors in any property leased by the TARGET Company and
(ix) Liens reflected on SCHEDULE 1.1.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or other
legal entity or any government or any agency or political subdivision thereof.
"PURCHASE PRICE" has the meaning set forth in Section 2.2(a).
"REAL PROPERTY" has the meaning set forth in Section 3.6(b).
"REFERENCE QUANTITY" and "PROVISIONAL REFERENCE QUANTITY" have the
meanings set forth in the License Regulation.
"RELEASE" means any release, spill, emission, leaking, pumping,
injection, deposit, application, disposal, discharge, dispersal, leaching, or
migration into the Environment, including the movement of any Hazardous Material
through or in the Environment.
"SUBSIDIARY" or "SUBSIDIARIES" of a specified Person means a
corporation, partnership, joint venture or other legal entity controlled by such
Person directly or indirectly through one or more intermediaries. The term
"controlled by" means the possession, direct or indirect, of the power to direct
or cause the direction of the management and policies of a Person, whether
through the ownership of voting shares, by contract, or otherwise.
"TANGIBLE PERSONAL PROPERTY" means all machinery, equipment, vehicles,
vessels, furniture, supplies, tools or other tangible personal property.
"TARGET COMPANY" has the meaning set forth in the recitals.
"TARGET SHARES" has the meaning set forth in the recitals. They are
described in Schedule 3.1(d).
"TAX" or "TAXES" means all federal, state, local or foreign income,
gross receipts, windfall profits, severance, property, production, sales, use,
license, excise, franchise, employment, withholding, transfer, payroll, social
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security, goods and services, value-added or minimum tax, or any other tax,
custom. duty, governmental fee, or other like assessment or charge of any kind
whatsoever, together with any interest or any penalty, addition to tax or
additional amount imposed by any Governmental Body.
"TAX CLAIM" has the meaning set forth in Section 8.4.
"TAX INDEMNITEE" has the meaning set forth in Section 8.1.
"TAX RETURN" means any return, report or similar statement required to
be filed with respect to any Taxes (including any attached schedules), including
any information return, claim or refund, amended return and declaration of
estimated Tax.
ARTICLE II
PURCHASE AND SALE OF THE TARGET SHARES
2.1 PURCHASE AND SALE OF THE TARGET SHARES. Upon the terms and subject
to the conditions set forth in this Agreement, at the Closing Sellers shall sell
to Purchaser, and Purchaser shall purchase from Sellers, the TARGET Shares, free
and clear of all Liens.
2.2 CONSIDERATION FOR THE TARGET SHARES.
(a) The aggregate consideration to be paid for the TARGET Shares shall
be US$58,703,920
[**************************************************************] (such
consideration, as modified pursuant to the terms of this Section 2.2, the
"Purchase Price").
(b) The Purchase Price shall be paid in the manner and at the times set
forth in Section 2.3 below; provided, however, that to the extent any
indebtedness of the TARGET Company (including, without limitation, accounts
payable to
[**********************************************************************]or any
indebtedness secured by the assets or the capital stock of the TARGET Company is
outstanding on the Closing Date (as defined in 2.3), Purchaser, in its sole
discretion, may elect to pay directly to any party to whom such indebtedness is
owed (a "Lender") such portion of the Purchase Price as is required to satisfy
such indebtedness and may take, or cause the TARGET Company to take, any actions
necessary to obtain delivery of any pledged TARGET Shares and a general release
by the Lender (in a form acceptable to Purchaser) in favor of the TARGET
Company. Such indebtedness shall include, but not be limited to:
(i) [*********] (or whatever amount is necessary to obtain the
general release referred to above and the release of the corresponding pledged
TARGET Company Shares) [*******************] pursuant to that Certain Loan and
Share Pledge
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Agreement,*********************************************************************;
(ii) [*********] (or whatever amount is necessary to obtain
the general release referred to above and the release of the corresponding
pledged TARGET Company Shares) owed to [*****************] pursuant to that
Certain Loan Agreement,
[**************************************] TARGET Company, as Borrower, and
Banacol and related
[******************************************************************************]
(iii) [***********](or whatever amount is necessary to obtain
the general release referred to above) owed to [******************] pursuant to
that certain
[******************************************************************************]
and the TARGET Company; and
(iv) [**********] payable to [***********] pursuant to that
certain Settlement Agreement,
[*****************************************************************************]
and the TARGET Company.
In the event that Sellers arrange to satisfy any of the indebtedness described
in clauses (i)-(iv) above for an amount (the "Settlement Amount") less than that
specified in such clauses and Purchaser elects to pay a portion of the Purchase
Price directly to the party to which such indebtedness is owed, Purchaser shall
pay the Settlement Amount to such party and the savings obtained through such
arrangements shall be for the account and benefit of Sellers.
(c) Sellers agree that the following amounts shall be deducted from the
Purchase Price and held by Purchaser until such time as Sellers satisfy the
conditions described below in this paragraph:
(i) [**************************]. The amount of [************] to
be held by Purchaser until such time as Sellers deliver to Purchaser an executed
general release, in a form acceptable to Purchaser, from
[***********************] in favor of the TARGET Company, its Parents,
Subsidiaries, and Affiliates and each of their respective officers, directors,
employees, agents and representatives, which shall include a release of any and
all claims that [******************] is entitled to utilize, claim, or receive
an assignment of any
[******************************************************************] to the
TARGET Company for the 1999 calendar year.
[****************************************************************************].
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(ii) [**************************]. The amount of [*********]
to be held by Purchaser until such time (whichever occurs first) as (I) Sellers
deliver to Purchaser an executed general release, in a form acceptable to
Purchaser, from [******] in favor of the TARGET Company, its Parents,
Subsidiaries, and Affiliates, and each of their respective officers, directors,
employees, agents and representatives of any any and all claims arising out of
or related to any claims for reimbursement or indemnification, duties, taxes, or
[**************************************************************************]
[******************************************************************************
********].
(iii) ACCOUNTS PAYABLE. [************************], to be held
by Purchaser until such time as Sellers deliver to Purchaser executed general
releases, in a form acceptable to Purchaser, from
[***************************************************] [****]TARGET Company, its
Parents, Subsidiaries, and Affiliates and a written acknowledgment of payment in
full from [**********************]. At Sellers' request, Purchaser shall pay the
applicable amounts directly to the above-named parties against receipt of such
general releases.
(d) All amounts (or the appropriate portions thereof) as to which
Purchaser makes the election provided for in Section 2.2(b) above or which are
held back by Purchaser pursuant to Section 2.2(c)
above,[*************************************************************] pursuant
to Section 2.2(c)(ii) above, shall be paid by Purchaser to the relevant Lender
or other party at or as promptly as practicable after Closing or Sellers'
request, as applicable, and any excess shall be promptly remitted to Sellers.
Any shortfall in the amounts held back pursuant to Section 2.2(c) may be offset
against any amounts due to Sellers or one of the Parents, Subsidiaries, or
Affiliates under the
[***********************************************************] (as defined in
Section 7.3(e) below).
2.3 CLOSING. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place on such date and at such place as
Purchaser and Sellers agree as promptly as practicable following satisfaction or
waiver of the conditions set forth in Article VI, and in any event not later
than January 8, 1999. The date on which the Closing occurs is hereinafter
referred to as the "CLOSING DATE." At the Closing: (a) Sellers shall deliver to
Purchaser: (i) stock transfer powers in a form acceptable to Purchaser duly
executed on behalf of Sellers enabling Purchaser to register the transfer of the
TARGET Shares in the register of the TARGET Company and sufficient to convey to
Purchaser good title to the TARGET Shares and shall take or cause to be taken,
at its expense, any and all other actions necessary to effect the transfer of
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the TARGET Shares, and (ii) a duly executed [************************] in the
form attached hereto, and (b) Purchaser shall deliver to Sellers the Purchase
Price as reduced in accordance with Section 2.2 above by wire transfer of
immediately available funds. Regardless of when the Closing
occurs,[*********************************************************************].
2.4 POST CLOSING PURCHASE PRICE ADJUSTMENTS.
(a) In the event the TARGET Company is
[******************************************************************************]
consideration otherwise payable pursuant to Section 2.2 above shall be
[******************************************************************************]
In the event the TARGET Company obtains a 1999 Award that enables it to request
[******************************************************************************]
therewith, the consideration otherwise payable pursuant to Section 2.2
[******************************************************************************]
Purchase Price may be offset against, and deducted from, any amount due to
Sellers or one of their Parents, Subsidiaries, or Affiliates under the Banana
Purchase Agreement in accordance with the Offset Rules (as defined in Section
7.3(e) below).
(b) As soon as practicable but in no event more than 30 days after the
Closing, Seller will cause to be prepared a balance sheet and statement of
income for the TARGET Company as of December 31, 1998 and for the period
beginning January 1, 1998 and ending on December 31, 1998 (the "Preliminary
Closing Date Financial Statements") and deliver such Financial Statements to
Purchaser. The Preliminary Closing Date Financial Statements shall be prepared
in accordance with [***********] applied on a basis consistent with those used
in the preparation of the Annual Financial Statements.
(c) Purchaser shall, at its expense, cause [***********] ("Purchaser's
Accountants") to review the Preliminary Closing Date Financial Statements and to
deliver to Purchaser and Sellers, as soon as practicable, but in no event more
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than 30 days following Purchaser's receipt of the Preliminary Closing Date
Financial Statements, Purchaser's Accountants' draft review report thereon
(together with the Preliminary Closing Date Financial Statements).
(d) As soon as practicable but in no event more than 30 days after
receipt of the Preliminary Closing Date Financial Statements and the draft
report of Purchaser's Accountants, Sellers shall notify Purchaser whether they
accept or dispute the accuracy of the Preliminary Closing Date Financial
Statements and/or the terms of Purchaser's Accountants' draft report. If Sellers
have not given any such notice to Purchaser within the time period set forth in
the preceding sentence, Sellers shall be deemed to have accepted the accuracy of
the Preliminary Closing Date Financial Statements and the terms of Purchaser's
Accountants' draft report. If Sellers accept the Preliminary Closing Date
Financial Statements and the terms of such draft report, Purchaser's Accountants
shall be requested to issue their final review letter thereon and the
Preliminary Closing Date Financial Statements shall be deemed to be the final
financial statements of the TARGET Company as of and for the period ended on the
Closing Date for purposes of this Article 2 (the "Closing Date Financial
Statements"). If Sellers dispute the accuracy of any of such items, they shall
in the notice of such dispute set forth in reasonable detail those items that
they believe are not fairly presented or calculated and the reasons for their
opinion. The parties shall then meet and in good faith use their best efforts to
try to resolve their disagreements over the disputed items. If the parties
resolve their disagreements in accordance with the foregoing sentence, the
Preliminary Closing Date Financial Statements with those modifications, if any,
to which the parties shall have agreed shall be deemed to be the Closing Date
Financial Statements and Purchaser's Accountants shall be requested to issue
their final report thereon in accordance with the parties' agreement. If the
parties have not resolved their disagreements over the disputed items within 30
days after Seller's notice of dispute, the parties shall forthwith jointly
submit those disputed items to an accountant (the "Accounting Referee") mutually
acceptable to the parties who is a partner of the Brussels office of one of the
"big five" international accounting firms which does not regularly do business
with any of the parties (and in the event the parties cannot agree on the
identity of such partner, the Accounting Referee
[******************************************************************************]
shall make a binding determination of those disputed items in accordance with
this Agreement. The Preliminary Closing Date Financial Statements, with those
modifications determined by the Accounting Referee to be appropriate, shall be
deemed to be the Closing Date Financial Statements. The determination of the
Accounting Referee shall not, in the absence of manifest error, be subject to
contest. The fees and expenses of Purchaser's Accountants shall be paid by
Purchaser, the fees and expenses of Sellers' Accountants shall be paid by the
Sellers, and the fees and expenses of the Accounting Referee shall be equally
shared by Sellers on the one hand and the Purchaser on the other hand.
(e) Within 3 days after the final determination of the Closing Date
Financial Statements in accordance with Section 2.4(d), if as of the Closing
Date the Closing Date Financial Statements indicate any recorded or unrecorded
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liabilities, Sellers shall pay to Purchaser by wire transfer in immediately
available U.S. dollar funds an amount equal to the total amount of such
liability, or, at Purchaser's option, Purchaser may offset such amount against,
and deduct it from, any amount due to Sellers or one of their
[******************************************************************************]
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Sellers, jointly and severally, represent and warrant to Purchaser
that:
3.1 ORGANIZATION, AUTHORITY, AND ENFORCEABILITY.
(a) Each of Sellers and the TARGET Company is a company duly
incorporated and validly existing and, where applicable, in good standing under
the laws of its jurisdiction of incorporation. Each of Sellers have the
corporate power and authority to enter into this Agreement and to carry out
their respective obligations hereunder. The execution and delivery of this
Agreement and the completion of the transactions contemplated by this Agreement
have been duly authorized by the Board of Directors of each of Sellers, and no
other corporate approval on the part of any of the Sellers or the TARGET Company
is necessary to authorize the execution or delivery of this Agreement or the
transactions contemplated by this Agreement. This Agreement has been duly
executed and delivered by each of Sellers and, assuming due authorization,
execution and delivery by Purchaser, constitutes a legal, valid and binding
obligation of each of Sellers, enforceable against each of Sellers in accordance
with its terms.
(b) The TARGET Company has full corporate power and authority to own or
lease and operate its properties and to conduct its business as currently
conducted and is duly licensed or qualified and in good standing in all
jurisdictions in which the character of the properties owned or leased by it or
the nature of its business requires it to be so licensed or qualified.
(c) True and complete copies of the Organizational Documents of each of
Sellers and the TARGET Company have been made available to Purchaser or its
representatives. The minute books of each of Sellers and the TARGET Company have
been made available to Purchaser or its representatives and such minute books
contain complete and accurate records of all material meetings and accurately
reflect all material corporate actions of the shareholders and the Board of
Directors (including committees thereof) of the TARGET Company.
(d) SCHEDULE 3.1(d) lists all the authorized, issued and outstanding
shares of the capital stock of the TARGET Company (I.E., the TARGET Shares) and
the names of the holders of record of such shares. All of such outstanding
shares have been duly authorized and validly issued and are fully paid and
non-assessable.
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3.2 TITLE TO SHARES.
(a) The TARGET Shares delivered to Purchaser will constitute
one-hundred percent (100%) of the issued and outstanding share capital of the
TARGET Company on the Closing Date. Except as set forth in SCHEDULE 3.2(A), all
such TARGET Shares are owned of record by Sellers and are free and clear of any
Lien. Sellers will transfer and deliver, or caused to be delivered to Purchaser
at the Closing valid title to the TARGET Shares free and clear of any Lien
(including any restriction on the right to vote, sell or otherwise dispose of
such capital stock); provided, however, that Purchaser shall provide its
reasonable cooperation to Sellers in establishing and implementing a workable
payment vs. delivery mechanism to secure the release of any pledged TARGET
Shares on or before the Closing Date.
(b) There are not authorized or outstanding any subscriptions, options,
conversion rights, warrants or other agreements, securities or commitments of
any nature whatsoever (whether oral or written and whether firm or conditional)
obligating Sellers or the TARGET Company to issue, deliver, sell or acquire or
cause to be issued, delivered, sold or acquired, any shares of the capital stock
of the TARGET Company, or any securities convertible into or exchangeable for
shares of capital stock of the TARGET Company, or obligating Sellers or the
TARGET Company to grant, extend or enter into any such agreement or commitment.
3.3 FINANCIAL STATEMENTS.
(a) Attached as EXHIBIT 3.3(a)(i) are audited Annual Financial
Statements (and the appendix thereto) for the TARGET Company as of and for the
years ended December 31, 1996 and 1997 (such financial statements and the notes
thereto, the "ANNUAL FINANCIAL STATEMENTS"). Attached as EXHIBIT 3.3(a)(ii) is
the unaudited Interim Financial Statement (and the appendix thereto) for the
TARGET Company as of and for the ten-month period ended October 31, 1998, which
have been reviewed by [***********] (such financials statements and the appendix
thereto, the "INTERIM FINANCIAL STATEMENT"). The Annual Financial Statements and
the Interim Financial Statement (i) have been prepared in accordance with
[**********], consistently applied from period to period (except as disclosed
therein), (ii) fairly present, in all material respects, the financial position
of the TARGET Company as of the date indicated therein and the results of
operations for the periods then ended and (iii) are consistent in all material
respects with the books and records of the TARGET Company. The Interim Financial
Statement has been prepared on the same basis as the Annual Financial Statements
and contains all adjustments, consisting only of normal and recurring
adjustments, necessary for a fair presentation of the results for such period
and financial condition as of such date.
(b) Except as set forth on SCHEDULE 3.3(b), since October 31, 1998,
TARGET Company has not:
(i) suffered any event or condition or incurred any liability
which had or may have a Material Adverse Effect on the TARGET Company;
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(ii) declared, set aside or paid any dividend or other
distribution with respect to any shares of capital stock of the TARGET Company,
or repurchased, redeemed or otherwise acquired any outstanding shares of capital
stock or other securities of the TARGET Company;
(iii) incurred (whether by borrowing, guaranteeing or
contracting to borrow or guarantee) any indebtedness or varied the material
terms of any existing debt instruments;
(iv) sold or otherwise disposed of any material assets or
properties;
(v) mortgaged, pledged or created any Lien on any material
assets;
(vi) entered into any capital or operating lease;
(vii) entered into any interest rate, currency or other swap,
hedging or derivative transaction; or
(viii) agreed or committed to do the foregoing.
3.4 NO CONSENT, BREACH OR DEFAULT. Except (a) as set forth on SCHEDULE
3.4, or (b) as required under any applicable antitrust laws or merger
regulations, the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement do not and will
not (i) conflict with or violate any provision of the Organizational Documents
of Sellers or the TARGET Company, (ii) require a consent or other action by any
Person or violate, conflict with or result in the breach or termination of; or
otherwise give any other Person the right to accelerate, cancel, terminate or
receive any payment, or constitute a default, event of default or an event which
with notice, lapse of time, or both, would constitute a default or event of
default, under the terms of any Permit or Contract (including, without
limitation, any employment agreement or employee benefit plan) to which Sellers
or the TARGET Company is a party or by which their respective assets are bound,
(iii) result in the creation of any Liens, other than Permitted Exceptions, upon
any of their respective assets or (iv) constitute a violation by the Sellers or
the TARGET Company of any Law or Judgment.
3.5 NO LIABILITIES. Except as set forth in the Annual Financial
Statements for the period ended December 31, 1997 or in the Interim Financial
Statement or as described in Section 2.2(c) above, (a) there are no liabilities
of the TARGET Company of a kind or type that pursuant to Belgian GAAP would be
required to be disclosed in the Annual Financial Statements for the period ended
December 31, 1997 or the notes thereto and (b) there are no other liabilities of
the TARGET Company with a risk of loss, individually or in the aggregate,
[*******************] whether accrued or contingent and there is no existing
condition, situation or set of circumstances which could reasonably be expected
to result in such a liability. At Closing, any liabilities that remain or have
been reserved for but not paid shall be eliminated by Sellers or provided for by
an adjustment to the Purchase Price.
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3.6 REAL AND PERSONAL PROPERTY.
(a) The TARGET Company does not own any real property,
(b) SCHEDULE 3.6(b) lists all real property and Facilities thereon
leased by the TARGET Company involving annual lease payments in excess of
[********] (the "REAL PROPERTY") together with a brief description of such real
property and any Facilities located thereon. Except as noted on SCHEDULE 3.6(b),
(i) the TARGET Company is in possession and has the quiet enjoyment of the space
and/or estate under each lease pursuant to which it is a tenant on each Real
Property and there is no material default by any such entity under any such
lease; and (ii) (A) neither Sellers nor the TARGET Company have received any
notice that such Real Property is subject to any pending condemnation or similar
"taking" proceeding by any Governmental Body with respect to such Real Property
and (B) neither Sellers nor the TARGET Company have received any notice, with
respect to any Facilities located thereon, of any violation of any applicable
zoning law or regulation (without being a legal nonconforming use or pursuant to
zoning variances).
(c) SCHEDULE 3.6(c) lists all items of Tangible Personal Property (i)
with a gross book value in excess of [********] that are owned by the TARGET
Company and (ii) each item of leased Tangible Personal Property involving annual
lease payments in excess of [********] that is leased by the TARGET Company.
With respect to such Tangible Personal Property, the TARGET Company owns and has
good and valid title to, or has a valid leasehold interest in, such Tangible
Personal Property (except for personal property disposed of in the ordinary
course of business).
3.7 INTELLECTUAL PROPERTY.
(a) No Intellectual Property owned in whole or in part or used by the
TARGET Company is being acquired by Purchaser and to the extent that there are
any Intellectual Property rights that are owned by and/or in the name of the
TARGET Company, Sellers agree to cause such Intellectual Property rights to be
transferred by the TARGET Company prior to the Closing Date. Any and all costs,
expenses, taxes, and attorneys fees incurred by Sellers or the TARGET Company in
connection with such transfer shall be the sole responsibility of Sellers.
3.8 MATERIAL CONTRACTS. SCHEDULE 3.8 lists all the Material Contracts
of the TARGET Company. Except as noted on SCHEDULE 3.8, each such Material
Contract is valid and binding on the TARGET Company, and to Sellers and the
TARGET Company's Knowledge, no party to any such Material Contract is in default
in any material respect thereunder or has given written notice of its intention
to terminate any such Material Contract.
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3.9 LEGAL COMPLIANCE.
(a) Except as noted on SCHEDULE 3.9(a), (i) the TARGET Company is in
compliance, in all material respects, with all Laws and Judgments promulgated or
rendered by any Governmental Body (in each case other than as they relate to
Environmental Laws, the subject of which is addressed in Section 3.12)
applicable to it or to the operation of its business or the ownership or use of
its properties and (ii) neither Sellers nor the TARGET Company have received
from (or have Knowledge of the issuance by) any Governmental Body of any notice
of material violation or alleged violation of any such Law or Judgment.
(b) Except as noted on SCHEDULE 3.9(b), (i) the TARGET Company owns or
possesses all Permits (other than Environmental Permits, the subject of which is
addressed in Section 3.12) required by the nature of the operations of the
TARGET Company to permit the operation thereof in the manner in which they are
currently conducted, except where the failure to obtain such Permit will not
have a Material Adverse Effect, (ii) each such Permit has been validly issued in
compliance with all applicable Laws, rules or regulations, and the TARGET
Company has complied with all material conditions required for the issuance of
each Permit applicable to it, (iii) no default or violation, or event that, with
the lapse of time or giving of notice or both, would become a default or
violation, has occurred in the due observance of the terms of any such Permit,
except where the default or violation will not result in a Material Adverse
Effect, (iv) each such Permit is in full force and effect and (V) neither
Sellers nor the TARGET Company have received any notice from any Government Body
to the effect that there is lacking any such Permit required in connection with
the current operation of its business.
3.10 LITIGATION.
(a) Except as described in Section 2.2(c) above, there is no (whether
or not covered by insurance) (i) Judgment which has not been discharged, (ii)
Legal Proceeding pending or, to Sellers or the TARGET Company's Knowledge,
threatened, or (iii) written claim against the TARGET Company.
(b) No Legal Proceeding is pending or, to Sellers' and the TARGET
Company's Knowledge, threatened against Sellers or the TARGET Company before any
Governmental Body to restrain or prohibit, or to obtain damages, a discovery
order or other relief in connection with the transactions contemplated by this
Agreement.
(c) In connection with the [***************] matter described in
Section 2.2(c)(i), [******] has no valid legal claim against the TARGET Company.
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3.11 TAXES AND TAX RETURNS.
(a) The TARGET Company has timely filed (taking into account all
available extensions) all Tax Returns concerning Taxes (or such Tax Returns have
been filed on behalf of the TARGET Company) required to be filed by applicable
Law and has paid all amounts due in respect of Taxes (whether or not actually
shown on such Tax Returns); and all such Tax Returns are true, correct and
complete in all material respects and accurately set forth all items to the
extent required to be reflected or included in such Tax Returns by applicable
federal, state, local or foreign tax Laws.
(b) As of the date hereof, neither Sellers nor the TARGET Company have
executed any outstanding waivers or comparable consents regarding the
application of the statute of limitations with respect to any material Taxes or
Tax Returns and the period during which any assessment against the TARGET
Company may be made by any Governmental Body has expired without waiver or
extension of any such period.
(c) No written notice has ever been given by any Governmental Body in a
jurisdiction where the TARGET Company does not file Tax Returns that it is or
may be subject to taxation by that jurisdiction.
(d) As of the date hereof, there are no Liens with respect to any Taxes
upon any of the assets or properties of the TARGET Company.
(e) The TARGET Company has paid in full all Taxes for the periods
covered by such Tax Returns, as well as all other Taxes, penalties, interest,
fines, deficiencies, assessments and governmental charges that have become due
or payable (including, without limitation, all Taxes that the TARGET Company is
obligated to withhold from amounts paid or payable to or benefits conferred upon
employees, creditors and third parties); and as of the date hereof; there has
been no written notice of any proposed liability for any material Tax to be
imposed upon the TARGET Company for the year ended December 31, 1998 or for any
prior year.
(f) No agreements relating to the allocation or sharing of Taxes exist
to which the TARGET Company is a party.
(g) There have been no Tax Returns filed by the TARGET Company pursuant
to the Laws of any Governmental Body that have been investigated or audited by
the appropriate Governmental Body during the preceding three years, there have
been no adjustments resulting from each such examination or audit and no such
investigation, examination or audit is in progress. In addition, there are no
deficiencies proposed as a result of such examinations or audits have been paid
or finally settled and no issue has been raised in any such examination or audit
that, by application of similar principles, reasonably can be expected to result
in the assertion of a deficiency for any other year not so examined or audited.
Except for Taxes payable with Tax Returns not yet due and filed, there are no
grounds for any further tax liability with respect to the years that have not
been examined or audited.
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(h) On or after January 1, 1993, the TARGET Company has not executed
any formal settlement agreement with a Governmental Body regarding its liability
in respect of Taxes.
(i) The TARGET Company has not agreed to nor is it required to make any
adjustments on any Tax Returns pursuant to a provision of Law by reason of a
change in accounting method initiated by it or any other relevant party; and
neither Sellers nor the TARGET Company have any knowledge that any Governmental
Body has proposed any such adjustment or change in accounting method. Further,
neither Sellers nor the TARGET Company have any application pending with any
Governmental Body requesting permission for any changes in accounting methods
that relate to the business or assets of the TARGET Company.
3.12 ENVIRONMENTAL MATTERS.
(a) The TARGET Company has operated in compliance with all applicable
Environmental Laws, the violation of which would have a Material Adverse Effect
on the TARGET Company.
(b) The TARGET Company has obtained and currently maintains all
Environmental Permits necessary for the operation of its business, and (i) each
such Environmental Permit has been validly issued in compliance with all
applicable Environmental Laws, and the TARGET Company has complied with all
material conditions required for the issuance of each Environmental Permit
applicable to it, (ii) no default or violation, or event that, with the lapse of
time or giving of notice or both, would become a default or violation, has
occurred in the due observance of the terms of any such Environmental Permit,
(iii) each such Environmental Permit is in full force and effect, and (iv)
neither Sellers nor the TARGET Company have received any notice from any
Government Body or Person to the effect that there is lacking any such
Environmental Permit required in connection with the current operation of the
TARGET Company's business.
(c) The TARGET Company has not been subject to any Environmental
Claims, and, to the knowledge of Sellers and the TARGET Company, no
Environmental Claim has been threatened.
(d) No Release that has required or is reasonably anticipated to
require reporting to a Governmental Body, investigation, study, assessment,
testing, monitoring, containment, removal, remediation, response, cleanup, or
abatement pursuant to applicable Environmental Law has occurred at any time at,
in, on, under, affecting or migrating to or from the Real Property.
(e) No Hazardous Material has been disposed of by the TARGET Company on
or under any Real Property.
(f) None of the Real Properties is on any list of sites subject to
investigation or cleanup issued by a Governmental Body pursuant to applicable
Environmental Law.
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(g) To the TARGET Company's Knowledge, no asbestos-containing material,
polychlorinated biphenyls, or underground storage tanks are present on or under
any Real Property.
(h) Sellers and the TARGET Company have provided to Purchaser all
investigations, studies, audits, tests, sampling and monitoring data, asbestos
and other building surveys, analyses and reviews in their possession relating to
the Environment associated with the Real Property, including without limitation,
indoor and outdoor air quality, groundwater conditions, surface water liability
incurred under, or for a violation or failure to satisfy the requirements of;
any such Law, agreement or instrument.
3.13 EMPLOYMENT MATTERS.
(a) SCHEDULE 3.13 sets forth, with respect to the TARGET Company, all
of the collective rules applicable to its employees (the "COLLECTIVE RULES"),
including without limitation: (i) the applicable collective bargaining
agreements and company agreements, other than those applicable to a sector of
the industry generally; (ii) any exceptional agreements concluded with employee
representatives; (iii) the remuneration system, including premiums, bonuses,
commissions, advantages in kind; (iv) profit-sharing, incentive and company
savings schemes; (v) any retirement or health insurance plan pursuant to which
employees are entitled to receive advantages in addition to those provided for
by law or the applicable collective bargaining agreements; and (vi) any
regional, local or individual company or establishment practices which provide
for advantages which exceed those provided for by law or the applicable
collective bargaining agreements.
(b) SCHEDULE 3.13 sets forth all consulting, employment, severance,
termination or compensation Contracts of the TARGET Company (the "EMPLOYMENT
AGREEMENTS") and indicates, with respect to each such Person, its status, age,
seniority and compensation. None of the Employment Agreements provides for
payments in connection with any change in control of the TARGET Company and no
amount will become due to any employee, consultant or director of the TARGET
Company under the Collective Rules or any Employment Agreement solely as a
result of the transactions contemplated by this Agreement.
(c) The TARGET Company is now and has in the past been in compliance
with all provisions of applicable labor and social security laws, the Collective
Rules and the Employment Agreements and all payments due thereunder have been
made when due and all amounts properly accrued as liabilities which have not
been paid have been properly recorded on the books of the TARGET Company.
(d) Since January 1, 1993, there have not occurred any strikes, slow
downs, work stoppages or other similar labor actions by any group of employees
of the TARGET Company. No Proceeding arising out of any labor grievance under
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any Law, the Collective Rules or any Employment Contract is pending or, to the
best knowledge of the Seller, threatened.
(e) The TARGET Company has not made any commitment to any public
agency, labor organization, employees' representatives or any other party,
relating to the number of its employees or to future collective dismissals.
3.14 AFFILIATE TRANSACTIONS.
(a) Except as shown on SCHEDULE 3.14(a), (i) there are no existing
agreements, arrangements, understanding or indebtedness between the TARGET
Company, on the one hand, and Sellers or any officer, director, stockholder,
Subsidiary or Affiliate of Sellers, on the other hand, (ii) no such officer,
director, stockholder, Subsidiary, or Affiliate of Sellers provides or causes to
be provided any assets, services or facilities to the TARGET Company which are
individually or in the aggregate material to the business or condition of the
TARGET Company, (iii) neither Sellers nor the TARGET Company provide or cause to
be provided any assets, services or facilities to any officer, director,
stockholder, Subsidiary or Affiliate of Sellers which are individually or in the
aggregate material to the business or condition of the TARGET Company and (iv)
the TARGET Company does not own any capital stock, indebtedness or other
securities issued by any such officer, director, stockholder, Subsidiary or
Affiliate of Sellers.
(b) At the Closing, there will not be any agreements, arrangements,
understanding or indebtedness between the TARGET Company, on the one hand, and
Sellers or any officer, director, stockholder, Subsidiary or Affiliate of
Sellers on the other hand.
3.15 BROKERS. Neither Sellers nor the TARGET Company nor anyone acting
on their behalf has employed or retained any investment bank, broker or finder
or incurred any liability for any brokerage fees, commissions or finders fees or
other similar compensation in connection with the transactions contemplated by
this Agreement.
3.16 BANK ACCOUNTS. Schedule 3.16 lists truly and completely in all
material respects all the bank accounts the TARGET Company maintains and the
authorized signatories for each such account.
3.17 FOREIGN CORRUPT PRACTICES. None of the TARGET Company, or any
director, officer, agent, employee, Affiliate or other Persons associated with
or acting on behalf of the TARGET Company, has at any time (a) made any unlawful
contribution to a candidate for foreign office, or failed to disclose fully any
contribution in violation of law, (b) made any direct or indirect payment to any
foreign or domestic, federal or state governmental officer or official, or other
Person charged with similar public or quasi-public duties, other than payments
required or permitted by the laws of the United States or any jurisdiction
therein (c) used any corporate funds of the TARGET Company for any unlawful
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contribution, gift, entertainment or other unlawful payment on behalf of the
TARGET Company to any foreign or domestic government official or employee or (d)
directed or participated in any act in violation of, or any act that would be in
violation of, any provision of the United States Foreign Corrupt Practices Act
of 1977, as amended.
3.18 TITLE TO EU BANANA IMPORT LICENSES. Sellers have provided to
Purchaser a copy of all documents submitted to the competent authority to
register as "traditional operator" within the meaning of the License Regulation.
All information contained in such documents is true and correct.
[******************************************************************************
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*******************************************************************************]
In addition, neither Sellers nor the TARGET Company are aware or have received
notice of any action by Sellers, TARGET Company, or any other party, that would
render the Reference Quantity or any or all of the licenses to be issued
pursuant thereto invalid or in violation of Council Regulation (EEC) No. 404/93,
the License Regulation, or any other applicable Regulations, Rules, or Orders
issued by the European Community or any of its Commissions, Committees, Councils
or other governmental bodies, including but not limited to the failure of Seller
or TARGET Company to pay any applicable tariffs.
3.19 ACCOUNTS RECEIVABLE. All accounts receivable of the TARGET Company
and other rights of payment, including without limitation, unbilled amounts and
credits extended to third parties, shown on the Interim Financial Statement or
recorded on its books by the TARGET Company before the Closing Date, shall be
retained and collected by the Sellers.
3.20 SUBSIDIES. There are no governmental, quasi-governmental, and
other public and private grants that provide any reimbursement, refund,
abatement, Tax reduction public or other benefit to the TARGET Company and for
which there are obligations that remain outstanding, whether in terms of use of
funds, continued operation, employment or otherwise.
3.21 DISCLOSURE. The representations and warranties of Sellers
contained in this Agreement, the Schedules hereto and in any certificate or
document delivered at Closing to Purchaser do not contain any untrue statement
of a material fact and do not omit or state a material fact necessary in order
to make the statements herein or therein, in light of the circumstances under
which they made, not misleading. Purchaser acknowledges that neither of Sellers
nor any other person has made any representation or warranty, expressed or
implied, as to the accuracy or completeness of any information regarding the
TARGET Company except as expressly set forth in this Agreement or the schedules
hereto, and except as otherwise expressly provided herein neither of Sellers nor
any other person will have or be subject to any liability or indemnification
obligation to Purchaser or any other person resulting from the transactions
contemplated by this Agreement.
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3.22 BANKRUPTCY. None of the TARGET Company Shares or the TARGET
Company's assets or liabilities are the subject of any bankruptcy or any similar
proceeding in Colombia or any other country, nor are they subject to that
certain ACUERDO CONCORDATORIO, dated July 31, 1995, among C.I. Banacol S.A. and
certain creditors (the "Acuerdo Concordatorio") or any similar agreement between
either of Sellers or any of their respective Parents, Subsidiaries, or
Affiliates. Neither the execution and delivery of this agreement by Sellers nor
the performance of the transactions contemplated by this Agreement will violate
any applicable Colombian bankruptcy law, any order of any Colombian bankruptcy
court, or the terms of the Acuerdo Concordatorio or any similar agreement with
the creditors of either of Sellers or any of their respective Parents,
Subsidiaries, or Affiliates.
ARTICLE LV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Sellers that:
4.1 ORGANIZATION AND EXISTENCE. Purchaser is a company duly
incorporated, and validly existing under the laws of the Netherlands Antilles,
and has full corporate power and authority to conduct its business as it is now
being conducted and to own or lease the properties and assets it now owns or
holds under lease.
4.2 CAPACITY. Purchaser has full corporate power and authority to
execute and deliver this Agreement and to perform its obligations hereunder.
This Agreement constitutes the legal, valid and binding agreement of Purchaser
and is enforceable against Purchaser in accordance with its terms and all
requisite corporate proceedings for the execution and delivery of this Agreement
and consummation of the transactions contemplated thereby have occurred.
4.3 NO CONFLICTS; CONSENTS. To the best of Purchaser's Knowledge, the
execution, delivery and performance of this Agreement and the documents,
instruments and the transactions contemplated by this Agreement do not and will
not contravene, constitute a default under, or require the approval or consent
of its shareholders or any other party under (i) the Articles of Association of
Purchaser, (ii) the terms of any judgment, order, decree or injunction
applicable to Purchaser or its properties or assets or (iii) any agreement to
which Purchaser is a party or by which Purchaser is bound. Execution, delivery
and performance by Purchaser of this Agreement will not require any action by or
in respect of; or consent or approval of; or filing with, any governmental body,
agency or official, except as required under applicable antitrust laws or merger
regulations.
4.4 FINANCING. Purchaser has sufficient cash, available lines of credit
or other sources of immediately available funds to enable it to pay the Purchase
Price in full at the Closing.
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4.5 LITIGATION. There is no action, suit, investigation or proceeding
pending against Purchaser before any court, arbitrator or any governmental body,
agency or official which in any manner challenges or seeks to prevent, enjoin,
alter or delay this Agreement or the transactions contemplated by this
Agreement.
4.6 BROKERS. Purchaser has dealt with no investment bank, broker,
finder or similar person in connection with this Agreement or the transactions
contemplated by this Agreement.
ARTICLE V
COVENANTS OF SELLER AND PURCHASER
5.1 ORDINARY COURSE OF BUSINESS. During the period from the date of
this Agreement to the Closing Date, except as specifically contemplated by this
Agreement or as otherwise consented to in writing by Purchaser, Sellers will
cause the TARGET Company to:
(a) carry on its business in, and only in, the ordinary course in
substantially the same manner as heretofore conducted and, to the extent
consistent with such business, use all reasonable efforts to preserve intact its
present business organization, keep available the services of its present
officers and employees and preserve its relationships with clients, suppliers,
customers, distributors and others having business dealings with it, maintain
all assets other than those disposed of in the ordinary course of business in
good repair and condition, maintain its books of account and records in the
usual, regular and ordinary manner, and preserve its good will and ongoing
business;
(b) promptly advise Purchaser in writing of any change in its condition
(financial or otherwise), properties, liabilities, operations or prospects which
is or may reasonably be expected to be materially adverse to it;
(c) not amend its charter or other organizational documents;
(d) not acquire, by merger, consolidation, purchase of shares, stock or
assets or otherwise, any corporation, partnership, association or other business
organization or division thereof;
(e) not alter its outstanding share capital or purchase or redeem any
shares of its capital stock,
(f) not issue or sell (or agree to issue or sell) any of its share
capital or any options, warrants or other rights to purchase any such shares or
any securities convertible into or exchangeable for such shares;
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(g) not incur any indebtedness for borrowed money (including through
the issuance of debt securities) or vary the terms of any existing indebtedness
without Purchaser's prior written consent;
(h) not mortgage, pledge or subject to any Lien except for Permitted
Exceptions, any of its properties;
(i) not discharge or satisfy any material Lien or pay or satisfy any
material obligation or Liability (fixed or contingent) or compromise, settle or
otherwise adjust any material claim or litigation;
(j) not acquire or dispose of any assets other than cash in connection
with repayment of debt without the prior written consent of Purchaser;
(k) not make any change in its accounting procedures or practices;
(l) not grant to any officer, director, consultant or employee any
increase or modification of compensation or benefits (except as required by
law), or any severance or termination pay, or make any loan to or enter into any
employment agreement or arrangement with any such person,
(m) not adopt, enter into, amend in any material respect, announce any
intention to adopt or terminate, any Plan or other employee benefit plan,
program or arrangement;
(n) not make an investment, any capital expenditure or otherwise
acquire any asset (directly or indirectly) except for bananas and plantains
without Purchaser's prior written consent; and
(o) not agree to take any of the actions set forth in the foregoing
subparagraphs (c) through (n).
5.2 INSPECTIONS. During the period from the date of this Agreement to
the Closing Date, Sellers and the TARGET Company shall permit Purchaser and its
representatives full access to the books, records, facilities, properties,
assets and operations of the TARGET Company as Purchaser shall reasonably deem
necessary to verify matters set forth herein, as long as such access is
conducted in a manner that minimizes disruption of the TARGET Company's
business. Sellers shall arrange for Purchaser and its representatives to discuss
with appropriate officers, employees and representatives of Sellers and the
TARGET Company such matters related to the transactions provided for herein as
Purchaser may reasonably request.
5.3 REASONABLE EFFORTS. Purchaser and Sellers shall: (i) promptly make
all applicable filings and thereafter make any other submissions required under
all applicable laws with respect to the transactions contemplated by this
Agreement and (ii) use their respective reasonable efforts to promptly take, or
cause to be taken, all other actions and do, or cause to be done, all other
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things necessary, proper or appropriate to consummate and make effective the
transactions contemplated by this Agreement. Without limiting the generality of
the preceding sentence, Purchaser shall, or shall cause the TARGET Company to,
promptly remit to Sellers any amounts received by the TARGET Company following
the Closing in respect of accounts receivable arising from operations of the
TARGET Company prior to the Closing Date.
5.4 PUBLICITY. Except as may be required by applicable law or any
listing agreement with a national securities exchange (or similar agreement) in
which case no consultaion or approval will be required, Purchaser, Sellers and
the TARGET Company agree that they will consult with each other concerning any
proposed press release or public announcement pertaining to the transactions
contemplated by this Agreement and will not issue any such press release or make
any such public statement without prior approval of the other parties hereto.
5.5 REPRESENTATIONS AND WARRANTIES. Neither Sellers nor Purchaser will,
or will allow any of their respective officers, directors, employees, agents or
Subsidiaries to take any action that would cause any of the representations and
warranties set forth herein not to be true and correct in all material respects
at and as of the Closing Date.
5.6 CONSENTS. Sellers and Purchaser shall cooperate in obtaining the
consents identified on SCHEDULE 3.4.
5.7 CERTAIN NOTIFICATIONS. At all times prior to the Closing Date, each
party shall promptly notify the other in writing of the occurrence of any event
which will or may result in the failure of any of the conditions contained in
Article VI to be satisfied.
5.8 TAX INFORMATION AFTER THE CLOSING. After the Closing, Purchaser on
one hand and Sellers on the other hand, will make available to the other, as
reasonably requested, all information, records or documents relating to the
liability for Taxes or potential liability of the TARGET Company for Taxes for
all periods prior to or including the Closing Date and will preserve such
information, records or documents until the later of (i) the expiration of any
applicable statute of limitations or extensions thereof or (ii) seven years from
the Closing Date.
5.9 CONFIDENTIALITY. Purchaser and its representatives shall maintain
confidential all information they receive during their due diligence (regardless
whether conducted prior to or after the execution of the Agreement and except as
may be required by applicable law or pursuant to an order of a Court of
competent jurisdiction), and will not use such information for any purpose other
than evaluating this transaction The obligation will remain in effect until the
later of the Closing or three years from the date of termination of this
Agreement. If this Agreement is terminated by Sellers or Purchaser, Purchaser
and its representatives will return any and all documents, notes, papers, or any
other document (or copies thereof) obtained by Purchaser or its representatives
from Sellers or its representatives with respect to this Agreement no later than
thirty (30) days after the termination of this Agreement.
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5.10 TERMINATION OF EMPLOYEES. In cooperation with Purchaser, at or
prior to Closing, Sellers shall cause the TARGET Company to terminate all of its
employees and Sellers shall be solely responsible for the payment of any salary
or other benefits (including but not limited to severance) that may be due to
such employees by contract or pursuant to applicable Belgian law and shall
obtain a release of any claims that each employee may have against the TARGET
Company in a form acceptable to Purchaser.
ARTICLE VI
CONDITIONS PRECEDENT TO CLOSING
6.1 CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER. The obligations
of Purchaser to purchase the TARGET Shares at the Closing are subject to the
satisfaction at or prior to the Closing Date of each of the following conditions
(unless satisfaction of any such condition is expressly waived in a writing
delivered to Sellers):
(a) No Proceeding by any Person shall be threatened or pending which
seeks to prohibit or declare illegal, or to obtain a material amount of damages
arising from the transactions contemplated by this Agreement.
(b) All governmental filings required to be made prior to the Closing
Date with, and all governmental consents required to be obtained prior to the
Closing Date from any Governmental Body in connection with the transactions
contemplated by this Agreement shall have been made or obtained, and any
required waiting period in connection therewith shall have elapsed.
(c) Purchaser and Sellers shall have received all requisite Consents,
approvals, waivers and agreements of third parties necessary to ensure that the
transactions contemplated in this Agreement shall not violate any provision of
any Contract or Judgment to which Sellers, the TARGET Company, or Purchaser is a
party or by which any of them or their property may be bound, or which gives
rise to any right to accelerate any material indebtedness of Sellers or
Purchaser.
(d) Purchaser shall have received the written opinions addressed to
Purchaser and dated as of the Closing Date from counsel to Sellers in the form
attached hereto as Schedule 6.1(d).
(e) Purchaser shall have received from Sellers certificates, signed by
an appropriate officer of Sellers, in the form attached hereto as Schedule
6.1(e).
(f) The representations and warranties of Sellers contained in Sections
3.1(a), 3.1(d), 3.2, and 3.18 above shall be accurate in all material respects
as of the Closing Date as though restated as of such date, and Sellers shall
have complied in all material respects with the covenants contained in Sections
5.1 and 5.10 above.
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(g) Sellers shall have delivered to Purchaser (or its designee(s)) (i)
duly completed and executed stock transfer powers for the transfer of the
ownership of all of the TARGET Shares to Purchaser (or its designee(s)),
together with the share register for the TARGET Company (ii) unconditional
resignation letters, effective on the Closing Date, from all of the directors,
officers, and the statutory auditor of the TARGET Company, (iii) a duly executed
Banana Purchase Agreement, in a form substantially similar to the form attached
hereto as Exhibit "A."
(h) As of the Closing Date, except as set forth on SCHEDULE 6.1(h),
there shall be no debt obligations outstanding between the Sellers and their
respective Parents, Affiliates, or Subsidiaries, on the one hand, and the TARGET
Company, on the other hand.
(i) Notwithstanding anything else to the contrary herein, Sellers shall
have delivered to Purchaser an executed general release,
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6.2 CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLERS. The obligations of
Sellers to sell the TARGET Shares at the Closing are subject to the satisfaction
at or prior to the Closing Date of each of the following conditions (unless
satisfaction of any such condition is expressly waived in a writing delivered to
Purchaser):
(a) No Proceeding by any Person shall be pending which seeks to
prohibit or declare illegal the transactions contemplated by this Agreement and
no Law or Judgment shall be in effect having any such result.
(b) All governmental filings required to be made prior to the Closing
Date with, and all governmental consents required to be obtained prior to the
Closing Date from, governmental and regulatory authorities in connection with
the transactions contemplated by this Agreement shall have been made or
obtained, and any required waiting period in connection therewith shall have
elapsed.
(c) Sellers shall have received from Purchaser a certificate, signed by
an appropriate officer of Purchaser, in the form attached hereto as 6.2(c).
(d) Purchaser shall have delivered to Sellers the Purchase Price as
provided in Section 2.2.
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ARTICLE VII
INDEMNIFICATION
7.1 INDEMNIFICATION BY SELLERS.
(a) From and after the Closing Date and subject to the provisions of
this Article VII and Article VIII, Sellers agrees to pay and to indemnify fully,
hold harmless and defend Purchaser, its Subsidiaries, and Affiliates (including
the TARGET Company), and each of their respective agents, directors, officers,
employees, shareholders, consultants, representatives, successors and assigns,
from and against any and all claims and/or Liabilities, damages, penalties,
Judgments, assessments, losses, costs and expenses (including, but not limited
to, reasonable attorneys' fees) (collectively, "DAMAGES") arising out of
relating to or based upon allegations of:
(i) any inaccuracy or breach of any representation or warranty
of Sellers contained in Article III; or
(ii) any breach of any covenant or agreement of Sellers or the
TARGET Company contained in this Agreement.
(b) At Purchaser's option, Purchaser may, in accordance with the Offset
Rules, offset any Damages due from Sellers to Purchaser against, and deduct them
from, any amount due to Sellers or one of its Parents, Subsidiaries or
Affiliates [***********************************]
7.2 LIMITATION ON INDEMNIFICATION.
(a) The indemnification obligation arising pursuant to Section 7.1(a)
shall not be effective (i) except for any claim pursuant to said Section where
the amount of Damages with respect to such claim is greater than or equal to
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(b) The indemnification obligations under Section 7.1(a) (other than
those resulting from the inaccuracy or a breach of the representations and
warranties contained in Sections 3.1, 3.2, 3.12 and 3.18, which shall survive
the Closing until the expiration of the statutes of limitation applicable to the
matters addressed therein) shall terminate on the later of
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7.3
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(c)
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(d)
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(e)
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ARTICLE VIII
TAX MATTERS
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8.2 CALCULATION OF INDEMNITY PAYMENTS. Sellers agree that, with respect
to any payment or indemnity to or for the benefit of a Tax Indemnitee under this
Article VIII, Sellers' indemnity obligations shall include the payment of such
amount, if any, as shall be necessary to hold any Tax Indemnitee harmless
[*******************] from all Taxes required to be paid by such Tax Indemnitee
with respect to such payment or indemnity (including any payments made pursuant
to this Section 8.2) under any Law.
8.3 TAX RETURNS.
(a) (i) Sellers shall be responsible for the timely filing (taking into
account any extensions received from the relevant Governmental Body) of all Tax
Returns required by Law to be filed by the TARGET Company on or prior to the
Closing Date, and (ii) such Tax Returns shall be true, correct and complete in
all material respects and accurately set forth all items to the extent required
to be reflected or included in such Tax Returns by applicable Laws. Such Tax
Returns shall be prepared on a basis consistent with those prepared for prior
taxable periods unless a different treatment of any item is required by an
intervening change in Law.
(b) Purchaser shall be responsible for the timely filing (taking into
account any extensions received from the relevant Governmental Body) of all Tax
Returns required by Law to be filed by the TARGET Company after the Closing
Date.
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8.4 SURVIVAL. All obligations under this Article VIII shall survive the
Closing hereunder and continue [***********] following the expiration of the
statute of limitations on assessment of the relevant Tax. Notwithstanding the
foregoing, any claim for indemnification shall survive such termination date if
any party, prior to such termination date, shall have advised the other party in
writing of facts that constitute or may give rise to an alleged claim for
indemnification under this Article VIII (such claim, a "TAX CLAIM"), specifying
in reasonable detail the basis under this Agreement for such claim.
8.5 EXCLUSIVE REMEDY. Notwithstanding anything to the contrary in this
Agreement, Tax Claims will be governed exclusively by this Article VIII.
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ARTICLE IX
TERMINATION
9.1 GROUNDS FOR TERMINATION. This Agreement may be terminated at any
time prior to the Closing Date by the written agreement of Purchaser and Sellers
and, [*******************], by any party hereto in the event the Closing has not
occurred prior to such date.
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9.2 EFFECT OF TERMINATION. If this Agreement is terminated as permitted
under Section 9.1, such termination shall be without liability to any party to
this Agreement or any Affiliate, director, officer or representative of such
party, except for liability arising from a willful breach of this Agreement.
ARTICLE X
MISCELLANEOUS
10.1 ENTIRE AGREEMENT. This Agreement, together with the schedules,
attachments and exhibits hereto, constitutes the entire understanding among the
parties hereto with respect to the subject matter contained herein and therein
and supersede any other understandings and agreements among them respecting such
subject matter.
10.2 HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not affect its interpretation.
10.3 NUMBER. Words of number may be read as singular or plural, as
required by context.
10.4 SCHEDULES. Each Schedule referred to herein is incorporated into
this Agreement by such reference and is deemed a part of this Agreement.
10.5 NOTICES. All notices, waivers and other communications under this
Agreement shall be in writing and shall be effective upon actual delivery or
refusal of delivery, to the following address:
If to Purchaser to:
[****************************
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If to Sellers to:
[****************************
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****************]
Notices may be given by electronic facsimile device or receipted
courier service; provided that for notice by electronic facsimile device to be
effective, its receipt must be acknowledged with an electronic confirmation of
receipt. Notice of any change in any such address shall also be given in the
manner set forth above.
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10.6 WAIVER. The failure of any party to insist upon strict performance
of any of the terms or conditions of this Agreement will not constitute a waiver
of any of its rights hereunder.
10.7 FURTHER ACTIONS AND ASSURANCES. The parties shall execute and
deliver such additional documents and shall cause such additional actions to be
taken before, on, and after the Closing Date, as may be required or reasonably
desirable further to effect or evidence the provisions of this Agreement and the
transactions contemplated by this Agreement.
10.8 SEVERABILITY. If any provision of this Agreement is held illegal,
invalid, or unenforceable, such illegality, invalidity or unenforceability will
not affect any other provision hereof. Such provision and the remainder of this
Agreement shall, in such circumstances, be deemed modified to the extent
necessary to render enforceable such provision and the remaining provisions
hereof
10.9 COUNTERPARTS. This Agreement may be executed in counterparts, all
of which taken together will constitute one instrument.
10.10 ASSIGNMENT. Neither this Agreement nor any of the rights,
obligations or duties hereunder may be assigned by any party without the prior
written consent of the other parties, except that Purchaser may make such an
assignment to any of its wholly owned subsidiaries without such consent,
PROVIDED, HOWEVER, that, notwithstanding any such assignment, Purchaser shall
remain obligated to perform its obligations under this Agreement and such
assignment shall not result in any additional cost or obligation to Sellers.
10.11 SUCCESSORS AND ASSIGNS. This Agreement binds, inures to the
benefit of, and is enforceable by and against the successors and permitted
assigns of the parties hereto.
10.12 FEES AND COSTS. Purchaser and Sellers shall each bear their own
costs and expenses, including, without limitation, legal and consulting fees,
for conducting due diligence and drafting and negotiating this Agreement.
10.13 GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the United States of America and the State of
Florida, without giving effect to principles of conflicts of law thereof.
10.14 NO PARTY DEEMED DRAFTER. In the event of a legal controversy
concerning this Agreement and its interpretation, Purchaser and Sellers have had
the opportunity for full representation by legal counsel and no party shall be
deemed to be the drafter of this Agreement.
10.15 REMEDIES CUMULATIVE. Any of the remedies available to a party in
respect of a default by any other party hereunder shall be cumulative and not
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exclusive, and the non-defaulting party may pursue one or more of such remedies
at such time or times as such non-defaulting party may elect.
10.16 AMENDMENTS. This Agreement may be amended or supplemented only by
a written instrument duly executed by all of the parties hereto.
10.17 NO THIRD-PARTY RIGHTS. Nothing in this Agreement is intended or
shall be construed to confer upon any Person other than Purchaser and Sellers
any right, remedy or claim under, or by reason of, this Agreement.
10.18 CONSENT TO JURISDICTION AND SERVICE OF PROCESS. Sellers and the
TARGET Company hereby irrevocably appoint CT Corporation System with an office
on the date hereof at 0000 Xxxxx Xxxx Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx 00000 and
its successors as agent upon which process may be served in any action arising
out of or based upon this Agreement which may be instituted in any state or
Federal court in Miami-Dade County, Florida. Sellers Purchaser and the TARGET
Company agree that all judicial actions or proceedings with respect to this
Agreement may be brought in any state or federal court of competent jurisdiction
in Miami-Dade County, Florida, United States of America and, by execution and
delivery of this Agreement, accept and submit to, for themselves and in
connection with their properties, generally and unconditionally, the
nonexclusive jurisdiction of the aforesaid courts in any such action or
proceeding and irrevocably agree to be bound by any final judgment rendered
thereby in connection with this Agreement from which no appeal has been taken or
is available. Sellers Purchaser and the TARGET Company each irrevocably agree
that all process in any such proceedings in any such court may be effected by
serving such process, in accordance with Florida law, on CT Corporation, at the
address specified above, or to the TARGET Company and Sellers at their addresses
set forth in Section 10.5 or to the TARGET Company and the Sellers at such other
address of which Purchaser shall have been notified pursuant thereto, such
service being hereby acknowledged by Sellers and the TARGET Company to be
effective and binding service in every respect. Each of Sellers and the TARGET
Company irrevocably waives, to the fullest extent it may effectively do so, any
objection, including, without limitation, any objection to the laying of venue
or based on the grounds of forum non conveniens or any right of jurisdiction on
account of the place of residence or domicile which it may now or hereafter have
to the bringing of any such action or proceeding in any such jurisdiction.
Nohing herein shall affect the right to serve process in any other manner
permitted by law. To the extent that Sellers Purchaser or the TARGET Company
have 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, Sellers Purchaser and the TARGET Company to the
extent permitted by law hereby irrevocably waive such immunity with respect of
their respective obligations under this Agreement and, without limiting the
generality of the foregoing, agrees that the waivers set forth in this section
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shall have the fullest scope permitted under the United States Foreign Sovereign
Immunities Act of 1976, as amended, and are intended to be irrevocable for
purposes of such Act. A final judgment in any action or proceeding arising out
of or relating to this Agreement shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law.
10.19 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.
10.20 NO PUNITIVE DAMAGES. Notwithstanding anything to the contrary
elsewhere in this Agreement, no party (or its Affiliates) shall, in any event,
be liable to any other party (or its Affiliates for any punitive damages.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered as
of the date first written above.
[**************************]
By: ____________________________
Name: [**************]
Title: [***************************]
By: [******************************]
By: _____________________________
Name:
Title:
[*********************]
By: _____________________________
Name: [************]
Title: [********]
[*************]
By: _____________________________
Name: [**************]
Title: [**********]
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SCHEDULE 1.1
The Target Company has the following credit facility with the Rabobank
International, Antwerp branch (the "Bank"):
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39
SCHEDULE 3.1.d. LIST OF ALL THE AUTHORIZED, ISSUED AND OUTSTANDING
SHARES OF THE CAPITAL STOCK OF THE TARGET COMPANY.
[******************************]
40
SCHEDULE 3.2.a. LIST OF PLEDGED SHARES
The following number of shares are pledged:
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SCHEDULE 3.3(b)
42
SCHEDULE 3.4
The sale of [***] may in certain cases constitute a termination without
Cause under the Commission Brokers Agreement. However, the parties intend to
terminate the Commission Brokers Agreement at Closing.
43
SCHEDULE 3.6
(b) None
(c) None
44
SCHEDULE 3.8
MATERIAL CONTRACTS
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SCHEDULE 3.9
LACK OF LEGAL COMPLIANCE
(a) None
(b) None
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SCHEDULE 3.13
Employment contract with Banana Marketing Belgium NV [****]
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SCHEDULE 3.14(a)
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SCHEDULE 3.16
1. Banana Marketing Belgium N.V. has the following bank accounts with the
following banks:
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2. Banana Marketing Belgium N.V. has the following facilities:
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SCHEDULE 6.1(d)
Legal Opinions
50
SCHEDULE 6.1(e)
Sellers' certificates
51
SCHEDULE 6.1(h)
Obligations to [*************************************] under the [*******]
Agreement referred to in Schedule 3.14(a), relating to [******] shipments.
52
SCHEDULE 6.2(c)
Purchaser's Certificate
