EXHIBIT 10.13
AMENDED AND RESTATED
STOCK REDEMPTION AGREEMENT
THIS AMENDED AND RESTATED STOCK REDEMPTION AGREEMENT (the "Amended and
Restated Agreement") made this 27th day of February, 2002, by and among Xxxxxx
X. Xxxx ("Xxxx"), Xxxxxx X. Xxxxxx ("Xxxxxx"), Interfoods Acquisition Corp., a
Nevada corporation ("Interfoods Acquisition"), and Interfoods of America, Inc.,
a Nevada corporation (the "Corporation"). After the completion of the Merger
(as defined below), Xxxx and Xxxxxx are referred to herein individually as a
"Stockholder" and collectively as the "Stockholders."
W I T N E S S E T H:
WHEREAS, Xxxx, Xxxxxx and the Corporation entered into a Stock Redemption
Agreement dated June 30, 2001 (the "Original Agreement");
WHEREAS, on the date of the original agreement Xxxx was the record owner of
1,476,719 shares of the Corporation's common stock and Xxxxxx was the record
owner of 932,352 shares of the Corporation's common stock;
WHEREAS, on December 21, 2001, Xxxx and Xxxxxx formed Interfoods
Acquisition and the Corporation entered into an Agreement and Plan of Merger
(the "Merger Agreement") providing for the merger (the "Merger") of Interfoods
Acquisition with and into the Corporation with the Corporation as the entity
surviving the merger;
WHEREAS, on February 6, 2002 Xxxx contributed to the Interfoods Acquisition
1,476,719 shares of the Corporation's common stock for an equivalent number of
shares of Interfoods Acquisition's common stock
WHEREAS, on February 6, 2002 Xxxxxx contributed to Interfoods Acquisition
932,352 shares of the Corporation's common stock for an equivalent number of
shares of Interfoods Acquisition's common stock; and
WHEREAS, the parties to the Original Agreement desire to amend and restate
that agreement as set forth hereinbelow.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
contained herein and for other valuable considerations paid by the Parties
hereto each to the other, the receipt and sufficiency of which is hereby
acknowledged, it is mutually agreed and covenanted by and among the Parties to
this Agreement as follows:
Article 1. This Article 1 shall govern the rights of the Stockholders
after the completion of the Merger. No Stockholder shall during his lifetime
transfer, encumber or dispose of his stock interest in the Corporation except as
provided below.
For purposes hereof, an offer in writing from an independent third party
non-related to a Stockholder to purchase shares of a Stockholder accompanied by
a deposit of at least ten (10%) percent of the proposed purchase price is
defined as a bona fide third party offer (a "Third Party Offer").
If a Stockholder should desire to dispose of his stock in the Corporation
during his lifetime, absent a Third Party Offer, he shall first offer in writing
to sell all of his stock to the
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Corporation at a price equal to the fair market value of such shares of stock as
determined by the selling Stockholder and the Corporation. If the selling
Stockholder and the Corporation are unable to agree upon the fair market value
of such shares within 30 days of the commencement of discussion, then the fair
market value of such shares shall be determined by the arbitration process
described in Article 3. If the Corporation does not purchase all of the shares
of stock so offered within 30 days after the determination of the fair market
value of the shares, said shares of stock shall be offered in writing at the
same price to the other Stockholder. If the stock is not purchased by the other
Stockholder within 30 days of the receipt of the written offer to him, the
Stockholder desiring to sell his stock may sell it to any third party upon
receipt of any Third Party Offer.
Upon a Stockholder receiving any Third Party Offer which he is desirous of
accepting, such Stockholder shall first give the Corporation and the other
Stockholder written notice thereof and the right to purchase the stock which is
the subject matter of the Third Party Offer. Such written notice shall be
accompanied by a true copy of the Third Party Offer and the Corporation and
other Stockholder shall have 30 days from receipt of such notice within which to
elect to purchase the stock offered for sale on the same terms and conditions
and for the same purchase price as that contained in the Third Party Offer. If
the Corporation or the other Stockholder do not elect to purchase the shares
offered for sale under the Third Party Offer within the 30 day period, and sign
a like Third Party Offer in favor of the Stockholder desiring to sell, then the
Stockholder desiring to sell may complete the transaction under the Third Party
Offer but shall not sell said stock to the third party at any lesser price or on
any more favorable terms without giving the Corporation and the other
Stockholder the right to once again purchase the stock at the reduced price on
the more favorable terms.
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Any stock not disposed of shall remain and/or again become subject to the
terms of this Agreement.
Article 2. Upon the death of either Xxxx or Xxxxxx prior to the Merger,
the Corporation shall purchase, and Interfoods Acquisition shall sell, such
number of shares of common stock of the Corporation owned by Interfoods
Acquisition that is equivalent to the number of shares of common stock of
Interfoods Acquisition owned by the decedent. Upon the death of any Stockholder
after the Merger, the Corporation shall purchase, and the estate of the decedent
shall sell, all of the decedent's shares in the Corporation now owned or
hereafter acquired. The purchase price of such stock in either instance shall
be computed in accordance with the provisions of Article 3.
Article 3. Interfoods Acquisition and the Corporation before the Merger,
and the estate of Xxxx or Xxxxxx, as applicable, and the Corporation after the
Merger, shall determine the fair market value of the shares of common stock of
the Corporation to be purchased by the Corporation hereunder as of the date of
death of Xxxx or Xxxxxx, as applicable. If the parties required to determine
the fair market value of such shares of common stock are unable to agree upon
the fair market value of such shares within 60 days of the death of Xxxx or
Xxxxxx, as applicable, then arbitration shall be used to determine such fair
market value with each party naming one arbitrator. If the two arbitrators
cannot agree upon a value within 30 days, they shall appoint a third arbitrator,
and the decision of the majority of arbitrators as to the fair market value of
the shares of common stock to be purchased by the Corporation shall be binding
upon all parties.
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Article 4. The Corporation is the applicant, owner and beneficiary of the
following life insurance policies issued by the National Life of Vermont.
Policy #2335350 insuring the life of Xxxxxx X. Xxxx in the amount of
$6,000,000.00.
Policy #2335352 insuring the life of Xxxxx Xxxxxx in the amount of
$4,000,000.00.
The Corporation agrees to pay premiums on the insurance policies taken out
pursuant to this Agreement and shall give proof of payment of premiums to the
Stockholders whenever any one of them shall request such proof. If a premium is
not paid within 30 days after its due date, the insured shall have the right to
pay such premium and be reimbursed therefor by the Corporation. The Corporation
shall have the right to purchase additional insurance on any or all of its
Stockholders, such additional policies shall be listed in Schedule A, attached
hereto and made a part of this Agreement along with any substitution or
withdrawal of insurance policies subject to this Agreement. In the event that
the Corporation decides to purchase additional insurance on any Stockholder each
Stockholder hereby agrees to cooperate fully by performing all the requirements
of the insurer which are necessary conditions precedent to the issuance of
insurance policies. The Corporation shall be the sole owner of the policies
issued to it, and it may apply any dividends toward the payment of premiums.
Article 5. (a) In the event of a purchase and sale during a Stockholder's
lifetime pursuant to Article 1, other than a sale under a Third Party Offer, the
purchase price shall be paid in ten (10) equal consecutive annual installments.
The first installment shall be due on the date of closing and the remaining nine
(9) installments shall be paid on said date in each subsequent year. The unpaid
balance of such purchase price shall be evidenced by a series of negotiable
promissory notes executed by the purchaser to the order of the seller with
interest at floating
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prime rate, based upon the prime rate promulgated from time to time by Bank of
America but not greater than ten (10%) percent per annum and not less than seven
(7%) percent per annum.
(b) In the event of a purchase and sale at the death of Xxxx
or Xxxxxx, the purchase price shall be paid in one lump sum as soon as is
practical after receipt by the Corporation of the life insurance proceeds
payable by reason of Xxxx or Xxxxxx'x death, as applicable, and in any event
within six months of the Stockholder's death. The proceeds of any life insurance
shall be used by Corporation for the purpose of completing purchase of the
shares of stock from Interfoods Acquisition before the Merger and the estate of
the deceased Stockholder after the Merger. If the purchase price is less than
the proceeds of the life insurance, the Corporation shall retain the excess as
general working capital. If the purchase price exceeds the proceeds of such life
insurance, the balance of the purchase price in excess of the life insurance
proceeds shall be pain in equal consecutive annual installments over a period of
five (5) years beginning one (1) year after the Stockholder's death. The unpaid
balance of such purchase price shall be evidenced by a series of negotiable
promissory notes executed by the Corporation to the order of the decedent
Stockholder's estate with interest at the floating prime rate, based upon the
prime rate promulgated from time to time by Bank of America but not greater than
ten (10%) percent per annum and not less than seven (7%) percent per annum.
(c) The notes referred to in Sections (a) and (b) above shall
provide for the acceleration of the due date of all unpaid notes in the series
upon default in the payment of any note or interest thereon and shall provide
that upon the default of any payment of interest or principal, all notes shall
become due and payable immediately, such notes shall give the purchaser the
option of prepayment in whole or in part.
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(d) To the extent that any unpaid balance remains outstanding
with respect to a purchase and sale hereunder, all of the shares of stock
purchased in the transaction shall be pledged to the seller to secure the full
payment of the purchase price. So long as the purchaser is not in default, said
purchaser shall have all voting and dividend rights in said stock.
Article 6. This Agreement is intended to apply to all shares of stock
owned from time to time by Interfoods Acquisition and the Stockholders.
Article 7. If Interfoods Acquisition or any Stockholder disposes of all of
their stock in the Corporation during the lifetime of Xxxx or Xxxxxx or if this
Agreement terminates before the death of a Stockholder, then Xxxx or Xxxxxx, as
applicable, shall have the right to purchase the policy or policies on him owned
by the Corporation by paying an amount equal to the cash surrender value, if
any, as of the date of transfer, less any existing indebtedness charged against
the policy or policies. This right shall lapse if not exercised within 30 days
after such disposal or termination.
Article 8. The stock certificates evidencing shares of the Corporation's
common stock covered by this Amended and Restated Agreement shall bear the
following legend:
"This certificate is held subject to the Amended and Restated Stock
Redemption Agreement dated February 27, 2002."
Article 9. This Agreement may be modified, amended, or terminated by a
writing signed by all of the Stockholders and the Corporation.
Article 10. This Agreement shall terminate upon the occurrence of any of
the following events:
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(1) The written agreement of all of the Stockholders of the Corporation,
or
(2) The bankruptcy, receivership or dissolution of the Corporation, or
(3) The death of Xxxx and Xxxxxx within a period of 30 days, subject to
compliance by the Corporation with the sale and purchase provisions hereof.
Article 11. The executor, administrator or personal representative of a
deceased Stockholder shall execute and deliver any and all documents or legal
instruments necessary or desirable to carry out the provisions of this
Agreement. This Agreement shall be binding upon the parties hereto and their
respective heirs, legal representatives, successors and assigns. This Agreement
shall be governed by the laws of the State of Nevada notwithstanding the fact
that one or more of the parties to this Agreement is now or may become a
resident or citizen of a different state.
Article 12. Notwithstanding the provisions of this Agreement, any
insurance company which has issued a policy of insurance subject to provisions
of this Agreement is hereby authorized to act in accordance with the terms of
such policies as if the Agreement did not exist, and the payment or other
performance of its contractual obligations by any such insurance company in
accordance with the terms of any such policy shall completely discharge such
company from all claims, suits and demands of all persons whatsoever.
Article 13. If the Corporation is unable to make any purchase required of
its hereunder because of the provisions of the applicable statutes or of its
charter or bylaws, the Corporation agrees to take such action as may be
necessary to permit it to make such purchases, and the Stockholders who are
parties to this Agreement agree that they will also take such action as may be
necessary for the Corporation to make such purchases.
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IN WITNESS WHEREOF, the Parties hereunto have executed this Agreement at
Miami, in the County of Miami-Dade, State of Florida.
WITNESSED BY:
INTERFOODS OF AMERICA, INC.
/s/ Xxxx Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
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Its President
INTERFOODS ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxx
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Its President
/s/ Xxxxxx X. Xxxx
---------------------------------
Xxxxxx X. Xxxx
/s/ Xxxx Xxxxxxxxx
-------------------------
/s/ Xxxxxx X. Xxxxxx
---------------------------------
As to all Parties Xxxxxx X. Xxxxxx
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SCHEDULE "A"
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ADDITIONAL INSURANCE POLICIES (IF ANY)
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Policy No. __________________ issued by _________________________________ to
Corporation on life of Xxxxxx X. Xxxx.
Policy No. __________________ issued by _________________________________ to
Corporation on life of Xxxxxx Xxxxxx.
