EXHIBIT 2.2
SECURITIES EXCHANGE AGREEMENT
This Securities Exchange Agreement (this "Agreement") is made and
entered into as of this 21st day of December, 2001 by and between Xxxx Holding
Company, a Delaware corporation ("DHC"), and Morningstar Foods, Inc., a Delaware
corporation ("Morningstar").
W I T N E S S E T H:
WHEREAS, DHC holds all right, title and interest (legal, beneficial and
equitable) in and to the membership interests set forth on Schedule A hereto
(the "Schedule A Ownership Interests");
WHEREAS, Morningstar holds all right, title and interest (legal,
beneficial and equitable) in and to the membership interests set forth on
Schedule B hereto (the "Schedule B Ownership Interests");
WHEREAS, DHC wishes to dispose of the Schedule A Ownership Interests to
Morningstar, and Morningstar wishes to acquire the Schedule A Ownership
Interests from DHC;
WHEREAS, Morningstar wishes to dispose of the Schedule B Ownership
Interests to DHC, and DHC wishes to acquire the Schedule B Ownership Interests
from Morningstar;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Assignment of Schedule A Ownership Interests. DHC hereby conveys,
transfers and assigns to Morningstar all of its right, title, and interest
(legal, beneficial and equitable) in and to the Schedule A Ownership Interests
and agrees to deliver, duly endorsed in blank or otherwise in good form for
transfer, certificate(s) representing the Schedule A Ownership Interests.
Morningstar hereby accepts the assignment of the Schedule A Ownership Interests
and agrees to be bound by all of the terms and provisions of the governing
documents and agreements applicable to the Schedule A Ownership Interests as
fully as if Morningstar were a party to such documents and agreements. It is the
intention of the parties hereto that Morningstar shall (i) succeed to all of
DHC's right, title, benefit and interest (legal, beneficial and equitable) in
and to the Schedule A Ownership Interests and (ii) be substituted as the owner
of the Schedule A Ownership Interests in the place and stead of DHC.
2. Warranty of Title. DHC covenants and agrees with Morningstar and its
successors and assigns to warrant and defend the transfer of the Schedule A
Ownership Interests to Morningstar against any and all claims made by any person
whatsoever. DHC represents and warrants to Morningstar that it is the true and
lawful owner of the Schedule A Ownership Interests at the time of assignment to
Morningstar and has full capacity, right and authority to transfer the Schedule
A Ownership Interests as contemplated herein.
3. Confirmatory Instruments and Documents. DHC hereby irrevocably
constitutes and appoints Morningstar as its true and lawful attorney, with full
power of substitution, in its name but on behalf of and for the benefit of
Morningstar, to execute acknowledge, deliver, swear to, file and record in the
appropriate public offices, any and all such confirmatory instruments and
documents as may be necessary or appropriate to perfect or evidence the title or
interest of Morningstar or its designee in and to any of the Schedule A
Ownership Interests hereby assigned.
4. Further Assurances. From time to time after the date of this
Agreement, as and when requested by Morningstar, DHC shall, without further
consideration, execute and deliver, or cause to be executed and delivered, such
assignments, certificates, and other instruments of transfer, conveyance,
assignment, and confirmation, furnish such further information, and take, or
cause to be taken, such further or other actions as Morningstar may deem
necessary or desirable to more fully transfer, assign and convey the Schedule A
Ownership Interests to it and otherwise to carry out the intent and purposes of
this Agreement and to consummate and give effect to other transactions,
covenants and agreements contemplated hereby.
5. Assignment of Schedule B Ownership Interests. Morningstar hereby
conveys, transfers and assigns to DHC all of its right, title, and interest
(legal, beneficial and equitable) in and to the Schedule B Ownership Interests
and agrees to deliver, duly endorsed in blank or otherwise in good form for
transfer, certificate(s) representing the Schedule B Ownership Interests. DHC
hereby accepts the assignment of the Schedule B Ownership Interests and agrees
to be bound by all of the terms and provisions of the governing documents and
agreements applicable to the Schedule B Ownership Interests as fully as if DHC
were a party to such documents and agreements. It is the intention of the
parties hereto that DHC shall (i) succeed to all of Morningstar's right, title,
benefit and interest (legal, beneficial and equitable) in and to the Schedule B
Ownership Interests and (ii) be substituted as the owner of the Schedule B
Ownership Interests in the place and stead of Morningstar.
6. Warranty of Title. Morningstar covenants and agrees with DHC and its
successors and assigns to warrant and defend the transfer of the Schedule B
Ownership Interests to DHC against any and all claims made by any person
whatsoever. Morningstar represents and warrants to DHC that it is the true and
lawful owner of the Schedule B Ownership Interests at the time of assignment to
DHC and has full capacity, right and authority to transfer the Schedule B
Ownership Interests as contemplated herein.
7. Confirmatory Instruments and Documents. Morningstar hereby
irrevocably constitutes and appoints DHC as its true and lawful attorney, with
full power of substitution, in its name but on behalf of and for the benefit of
DHC, to execute acknowledge, deliver, swear to, file and record in the
appropriate public offices, any and all such confirmatory instruments and
documents as may be necessary or appropriate to perfect or evidence the title or
interest of DHC or its designee in and to any of the Schedule B Ownership
Interests hereby assigned.
8. Further Assurances. From time to time after the date of this
Agreement, as and when requested by DHC, Morningstar shall, without further
consideration, execute and deliver, or cause to be executed and delivered, such
assignments, certificates, and other instruments of
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transfer, conveyance, assignment, and confirmation, furnish such further
information, and take, or cause to be taken, such further or other actions as
DHC may deem necessary or desirable to more fully transfer, assign and convey
the Schedule B Ownership Interests to it and otherwise to carry out the intent
and purposes of this Agreement and to consummate and give effect to other
transactions, covenants and agreements contemplated hereby.
9. Filings and Consents. Each party hereto will use its best efforts to
make all filings and registrations, give all notices and obtain all permits,
licenses, consents and approvals from all courts, governmental authorities and
other persons and entities as may be required under any applicable law,
regulation, agreement or instrument binding upon it or which relates to the
transfer or acceptance of the Schedule A Ownership Interests or the Schedule B
Ownership Interests by it, as applicable, as contemplated in this Agreement or
which otherwise is required to consummate or make effective the transactions
contemplated in this Agreement.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware, without reference to
conflicts of laws principles.
11. Counterparts. This Agreement may be executed in one or more
original or facsimile counterparts, each of which shall be deemed to be an
original, but all of which shall constitute one and the same Agreement.
12. Amendments. This Agreement may be amended only by an instrument in
writing duly executed and delivered by or on behalf of each party hereto.
13. Invalidity. In the event that any provision of this Agreement is
declared to be void or unenforceable, the remainder of this Agreement shall not
be affected thereby and shall remain in full force and effect to the extent
feasible in the absence of the void and unenforceable provision. The parties
furthermore agree to execute and deliver such amendatory contractual provisions
to accomplish lawfully as nearly as possible the goals and purposes of the
provision so held to be void or unenforceable.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers, as of the day and year first above
written.
XXXX HOLDING COMPANY
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------
Xxxxxxxx X. Xxxxxxx
Executive Vice President,
Chief Administrative Officer,
General Counsel and
Secretary
MORNINGSTAR FOODS, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
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Xxxxxxxx X. Xxxxxxx
Vice President, General Counsel
and Secretary
Schedule A
Ownership Interests
Company Type of Interest (stock, Percentage of Certificate
Name member, other) Ownership Interest Number of Units No.
------- ------------------------ ------------------ --------------- ------------
Xxxx Dip and Dressing Company, LLC Membership Units 100% 100 1
Xxxx Foods Company, LLC Membership Units 100% 100 1
Schedule B
Ownership Interests
Company Type of Interest (stock, Percentage of Certificate
Name member, other) Ownership Interest Number of Units No.
------- ------------------------ ------------------ --------------- ------------
Xxxx SoCal, LLC Common Stock 100% 100 4
