Exhibit 2.2
SHARE PURCHASE AGREEMENT
In Madrid, Spain, on January 6, 1999
GATHERED
ON THE ONE PART, Hussmann International Inc., a company duly incorporated and
existing under the laws of the State of Delaware, United States of America, with
domicile at 00000 Xx. Xxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxx 00000 XXX, duly
represented by Xx. Xxxx Xxxxxx, a U.S. citizen, with U.S. Passport number
000000000, in his capacity as Senior Vice President, Europe, Africa and Middle
East, by virtue of a Power of Attorney issued in his favor on December 30, 1998.
AND ON THE OTHER PART,
Xx. Xxxxxxx Xxxxxxx Xxxxx, of legal age, married, of Spanish nationality, with
domicile at x/ Xxxxxxx, xxxxxx 0, 00000, Xxx Xxxxxxxxx, Guipuzcoa and Tax
Identification Number (NIF) 1.959.426-X, duly represented by Xx. Xxxxx Xxxxxxx
Encio by virtue of power of attorney granted in his favor on November 24, 1998.
Xx. Xxxxx Xxxxxxx Encio, of legal age, single, of Spanish nationality, with
domicile at x/ Xxxxxxx, xxxxxx 0, 00000, Xxx Xxxxxxxxx, Xxxxxxxxx, Xxxxx and
Tax Identification Number (NIF) 15.991.239-Y, acting on his own name and behalf.
Xx. Xxxxx Xxxxxxx Encio, of legal age, married, of Spanish nationality, with
domicile at x/ Xxxxxxx, xxxxxx 0, 0, Xxx Xxxxxxxxx and Tax Identification Number
(NIF) 15.924.213-W, duly represented by Xx. Xxxxx Xxxxxxx Encio by virtue of
power of attorney granted in his favor on November 24, 1998.
Xx. Xxxx Xxxxxxx Xxxxx, of legal age, married, of Spanish nationality, with
domicile at c/ Media Xxxx, number 5, Pamplona and Tax Identification Number
(NIF) 15.303.864, duly represented by Xx. Xxxx Xxxxx Iriondo Altuna by virtue of
power of attorney issued in his favor on December 23, 1997.
Xx. Xxxx Xxxxx Xxxxxxx Xxxxxx, of legal age, single, of Spanish nationality,
with domicile at x/ Xxxxx Xxxx, xxxxxx 0, Xxxxxxxx, Xxxxx and Tax
Identification Number (NIF) 16.235.108-Y, acting on his own name and behalf.
Xx. Xxxxx Xxxxx Xxxxxxx Xxxxxx, of legal age, single, of Spanish nationality,
with domicile at x/ Xxxxx Xxxx, xxxxxx 0, Xxxxxxxx, Xxxxx and Tax
Identification Number (NIF) 16.231.354-16.231.354-Y, duly represented by Xx.
Xxxx Xxxxx Xxxxxxx Xxxxxx by virtue of power of attorney issued in her favor on
September 24, 1987.
Xx. Xxxxx Xxxxxx Xxxxxxx Altuna, of legal age, married, of Spanish nationality,
with domicile at x/ Xxxxx Xxxx, xxxxxx 0, Xxxxxxxx, Xxxxx and Tax
Identification Number (NIF) 15.360.132, duly represented by Xx. Xxxx Xxxxx
Xxxxxxx Altuna by virtue of power of attorney issued in her favor on September
24, 1987.
Xx. Xxxxxxx Xxxxxxx Xxxxxx, of legal age, single, of Spanish nationality, with
domicile at x/ Xxxxx Xxxx, xxxxxx 0, Xxxxxxxx, Xxxxx and Tax Identification
Number (NIF) 15.366.887, duly represented by Xx. Xxxx Xxxxx Xxxxxxx Xxxxxx by
virtue of power of attorney issued in her favor on September 24, 1987.
Messrs. Xxxxxxx Xxxxxxx Xxxxx, Xxxxx Xxxxxxx Xxxxx, Xxxxx Xxxxxxx Encio, Xxxx
Xxxxxxx Xxxxx, Xxxx Xxxxx Xxxxxxx Xxxxxx, Xxxxx Xxxxx Xxxxxxx Xxxxxx, Xxxxx
Xxxxxx Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxxx Xxxxxx shall hereinafter be referred to
as the "Sellers".
WHEREAS
X. Xxxxxxxx International Inc. is a company dedicated to the manufacturing and
commercialization of commercial refrigerator display and storage cases,
refrigeration equipment and refrigeration systems.
II. The Sellers are owners of 950,145 shares representing 77.25% of the issued
and outstanding shares of the Spanish company KOXKA CE, S.A. (the
"Company"), with domicile at Xxxxxxxx xx Xxxxxxxx, xxxxx X, x/x, Xxxxxxxx,
Xxxxx and NIF number A-31-016363, a public company listed on the Madrid
Stock Exchange. The shares owned by each Seller are listed in Exhibit II
hereto. Anagre, S.A. is the owner of 37,062 shares representing 3.01% of
the share capital of the Company.
III. Hussmann International Inc. is interested in purchasing a number of the
issued and outstanding shares of the Company which represents at least
80.26% of the Company's share capital, by means of a public tender offer,
in accordance with applicable Spanish securities market regulations.
IV. The Sellers are interested in selling their shares of the Company to
Hussmann International Inc. or to the subsidiary or affiliate company of
Hussmann International Inc. which launches the public tender offer (the
entity launching the public tender offer shall hereinafter be referred to
as the "Purchaser"), provided that a minimum purchase price is offered.
In accordance with the above considerations, the parties have agreed to enter
into this Share Purchase Agreement, subject to the following :
CLAUSES
1. PURCHASE OF SHARES
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1.1 Each of the Sellers irrevocably undertakes to sell to the Purchaser all the
shares he owns in the capital of the Company if the Purchaser launches a
public tender offer for 100% of the issued and outstanding shares of the
Company at a purchase price of 16,195 pesetas/share, net of clearing,
settlement and other stock exchange expenses.
1.2 Xx. Xxxx Xxxxx Xxxxxxx Xxxxxx irrevocably promises that, in the event the
Purchaser launches the Public Tender Offer described in Clause 1.1 above,
Anagre, S.A. shall sell to the Purchaser all the shares that Anagre, S.A.
holds of the Company.
Consequently, and for the purposes of this Agreement, Anagre, S.A. shall
be considered as an additional Seller, and Xxxx Xxxxx Xxxxxxx Altuna shall
assume personally in his own name all the rights, obligations and
liabilities that would correspond to Anagre, S.A. if Anagre, S.A. had
signed this Agreement.
1.3 Completion of the public tender offer will be conditional upon the
Purchaser acquiring at least 80% of the issued and outstanding shares of
the Company, less the shares owned by any Seller who may die or be affected
by incapacity or third party attachment on his assets (but in any case,
upon acquiring at least 51%). This condition will be expressly reflected in
the prospectus and all other documents pertaining to the public tender
offer. Should the Spanish Comision Nacional del Xxxxxxx de Valores not
accept that the threshold for completion of the public tender offer be
conditional upon the aforementioned events, the public tender offer will be
formally conditional upon the Purchaser acquiring at least 62% of the
issued and outstanding shares of the Company, even though the Purchaser
undertakes to complete the public tender offer even if the 62% threshold is
not reached due to death, incapacity or third party attachment affecting
any of the Sellers, provided always that at least 51% of the shares of the
Company are acquired by the Purchaser.
The public tender offer shall provide that the acceptance period will
expire on the earliest possible day of March of 1999.
1.4 The Purchaser undertakes to purchase all, but not part of, the shares of
the Company owned by the Sellers pursuant to the conditions described in
the preceding paragraph and the remaining Clauses of this Agreement.
1.5 The Sellers' obligations under this Agreement shall be several
("mancomunadas"), that is, each Seller shall be responsible only for
his/her own obligations hereunder except for the liability of the breaching
Sellers pursuant to Clause 5 hereof, which will be joint and several among
those breaching Sellers only.
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1.6 In the event the Purchaser is an entity different than Hussmann
International, Inc., Hussmann International, Inc. and the Purchaser shall
be jointly and severally liable for the responsibilities of the Purchaser
hereunder.
1.7 Within a term of 30 days of signature of this Agreement, the Purchaser
shall file an Application to the Spanish Stock Exchange Commission
(Comision Nacional del Xxxxxxx de Valores) for authorisation to launch the
above described Public Tender Offer.
2. CONSIDERATION
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2.1 The price per share to be paid by the Purchaser to each of the Sellers in
consideration for the sale of their shares of the Company shall be the same
price that is offered to all the remaining shareholders of the Company. The
Sellers shall receive no further consideration other than the purchase
price per share paid to all the shareholders who accept the public tender
offer.
2.2 The purchase price shall be paid in cash by the Purchaser to each of the
Sellers at the time of settlement of the purchase price upon closure of the
public tender offer, through the stock broker ("agente de pagos") appointed
by the Purchaser to settle and liquidate the public tender offer.
3. ADDITIONAL COMMITMENTS OF THE SELLERS
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3.1 Each of the Sellers irrevocably undertakes not to sell, charge, encumber of
in any way dispose of any of the shares of the Company which he may own now
or in the future in favor of any party other than the Purchaser (including
any other Seller), whether in the process of a public tender offer launched
by any third party prior to, simultaneously or after the public tender
offer launched by the Purchaser, or through any other valid means of
acquisition, except for the case that any Seller decide the transfer of the
shares owned by such Seller to an individual (which must be another Seller)
or a Company directly or indirectly owned by the relevant or another
Seller, as long as the acquirer of such shares subrogates in all
obligations of the transferring Seller to the Purchaser and/or Hussmann
International Inc. with respect to the transaction contemplated herein.
3.2 Each of the Sellers irrevocably undertakes, as soon as the public tender
offer is authorized by the Spanish Comision Nacional del Xxxxxxx de
Valores, to inform the Comision Nacional del Xxxxxxx de Valores of his
commitment to accept the offer.
3.3 Each of the Sellers irrevocably undertakes to formally accept the public
tender offer launched by the Purchaser within the first three business days
of the acceptance period.
3.4 Each of the Sellers irrevocably undertakes to refrain from any action which
may prejudice the success of the public tender offer.
3.5 The Sellers acknowledge that the minimum price referred to in Clause 1.1
above is a fair and reasonable consideration for the sale of the shares of
the Company. The Sellers
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undertake to use their best efforts to cause the Board of Directors of the
Company to produce a report recommending the sale of the shares of the
Company to the Purchaser, at a price at least equal to that referred to in
Clause 1.1 above, in the course of the public tender offer.
4. OBLIGATIONS OF THE PURCHASER / CONDITIONS
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4.1 The parties expressly agree that the Purchaser shall have no obligation to
launch a public tender offer or otherwise acquire any shares of the Company
if the authorization for the public tender offer by the Spanish Comision
Nacional del Xxxxxxx de Valores is duly and timely filed for but is not
issued or if the foreign investment verification is duly and timely applied
for but is not granted. The Purchaser shall file and process the relevant
Applications in good faith, shall post a bank guarantee for the full amount
of the public tender offer and comply with all relevant Spanish regulatory
requirements to the best of its ability.
4.2 If the Purchaser launches a public tender offer for the shares of the
Company, the Purchaser shall be entitled to withdraw from such public
tender offer without acquiring any shares of the Company if:
(a) The shares tendered for sale to the Purchaser by the shareholders of
the Company who accept the offer do not reach the threshold established for
completing the public tender offer pursuant to Clause 1.3 above; or
(b) The Spanish government issues a resolution before the end of the
acceptance period which prohibits the transaction.
4.3 In the cases described in Clauses 4.1 and 4.2 above, the Purchaser shall
not be obliged to indemnify the Sellers nor to reimburse the Sellers for
any damages or expenses incurred in connection with this Agreement, nor to
pay the penalties established in Clause 5 below.
5. INDEMNITY
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If any of the Sellers fails to comply with any of their obligations or
commitments hereunder, the Purchaser may decide either to enforce the breaching
Sellers' obligations or to be released from any and all of its obligations
hereunder vis-a-vis such breaching Seller(s) (Xx. Xxxx Xxxxx Xxxxxxx Altuna
shall be considered as a breaching Seller if Anagre, S.A. fails to sell all of
its shares in the Company as promised by Xx. Xxxxxxx Xxxxxx in Clause 1.2 above)
and the breaching Seller(s) shall be jointly and severally liable to:
(a) reimburse the Purchaser for all expenses incurred in the preparation
and/or launching of the public tender offer, including attorneys',
auditors' and advisors' fees; and
(b) pay to the Purchaser a penalty in the amount of 705,000,000 pesetas,
which damages shall be the exclusive damages available to the
Purchaser.
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In a similar fashion, if the Purchaser fails to comply with any of its
obligations or commitments hereunder, the Sellers may decide either to enforce
Purchaser's obligations or to be released from any and all of their obligations
hereunder and the Purchaser shall be liable to:
(a) reimburse the Sellers for all expenses incurred in the preparation of
this Agreement including attorneys', auditors' and advisors' fees, and
(b) pay to the Sellers a penalty in the total amount of 705,000,000
pesetas which damages shall be the exclusive damages available to the
Sellers.
6. GOVERNING LAW / ARBITRATION
---------------------------
6.1 This Agreement shall be governed by and interpreted in accordance with the
laws of the Kingdom of Spain.
6.2 The Parties shall try to resolve any dispute, conflict, controversy or
difference which might arise between them under this Agreement by way of
good faith negotiations. In the event the Parties are unable to achieve a
satisfactory resolution of such dispute, conflict, controversy or
difference within a period of 30 days, the parties, expressly waiving any
other forum which may correspond to them, irrevocably submit to the
jurisdiction of the Courts of the city of Madrid, Spain.
7. LANGUAGE
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English and Spanish versions of this Agreement are being executed by the parties
and both versions shall constitute valid and binding documents. In the event any
difference(s) should be discovered between the English and Spanish versions of
this Agreement, then the Spanish version will prevail with respect to such
difference(s).
AND IN WITNESS WHEREOF, the parties execute this share purchase agreement, in
five original counterparts, in the place and on the date first above written.
/s/ Xxxx Xxxxxx /s/ Xxxxx Xxxxxxx Encio
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Hussmann International Inc. Xx. Xxxxx Xxxxxxx Encio representing Xx.
Xxxxxxx Xxxxxxx Xxxxx
/s/ Xxxxx Xxxxxxx Encio
----------------------------------------
Xx. Xxxxx Xxxxxxx Encio
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/s/ Xxxxx Xxxxxxx Encio
----------------------------------------
Xx. Xxxxx Xxxxxxx Encio, representing
Xx. Xxxxx Xxxxxxx Encio
/s/ Xxxx Xxxxx Xxxxxxx Altuna
----------------------------------------
Xx. Xxxx Xxxxx Xxxxxxx Xxxxxx,
representing Xx. Xxxx Xxxxxxx Xxxxx
/s/ Xxxx Xxxxx Xxxxxxx Xxxxxx
----------------------------------------
Xx. Xxxx Xxxxx Xxxxxxx Altuna
/s/ Xxxx Xxxxx Xxxxxxx Xxxxxx
----------------------------------------
Xx. Xxxx Xxxxx Xxxxxxx Altuna,
representing Xx. Xxxxx Xxxxx Xxxxxxx
Altuna
/s/ Xxxx Xxxxx Xxxxxxx Xxxxxx
----------------------------------------
Xx. Xxxx Xxxxx Xxxxxxx Altuna,
representing Xx. Xxxxx Xxxxxx Xxxxxxx
Altuna
/s/ Xxxx Xxxxx Xxxxxxx Xxxxxx
----------------------------------------
Xx. Xxxx Xxxxx Xxxxxxx Altuna,
representing Xx. Xxxxxxx Xxxxxxx Xxxxxx
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EXHIBIT II
SELLING SHAREHOLDERS
NUMBER OF PERCENTAGE OF KOXKA'S
SHAREHOLDER SHARES HELD SHARE CAPITAL
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Xxxxx Xxxxxxx Encio 162,562 13.22%
Xxxxx Xxxxxxx Encio/(a)/ 162,562 13.22%
Xxxxxxx Xxxxxxx Xxxxx/(a)/ 167,485 13.62%
Xxxx Xxxxx Xxxxxxx Xxxxxx 68,213 5.55%
Xxxxx Xxxxx Xxxxxxx Altuna/(b)/ 54,643 4.44%
Xxxxx Xxxxxx Xxxxxxx Xxxxxx/(b)/ 54,640 4.44%
Xxxxxxx Xxxxxxx Altuna/(b)/ 54,640 4.44%
Xxxx Xxxxxxx Xxxxx/(b)/ 225,400 18.33%
TOTAL 950,145 77.25%
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For the purposes of Clauses 1.2 and 5, Anagre, S.A., which currently holds
37,062 shares of Koxka, C.E. S.A. representing 3.91% of the share capital, shall
be considered as an additional Seller.
TOTAL INCLUDING SHARES OWNED BY ANAGRE 987,207 80.26%
(a) Represented by Xxxxx Xxxxxxx Encio.
(b) Represented by Xxxx Xxxxx Xxxxxxx Altuna.
