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EXHIBIT 10.13
EXCHANGE AGREEMENT
AND
AMENDMENT TO STOCKHOLDERS' AGREEMENT
This Exchange Agreement and Amendment to Stockholders' Agreement
(this "Exchange Agreement"), dated as of December __, 1996, among Onex Food
Services, Inc., a Delaware corporation ("OFSI"), LSG Lufthansa Service GmbH, a
Gesellschaft mit beschrankter Haftung organized under the laws of Germany
("LSG"), and LSG Lufthansa Service USA Corporation, a Delaware corporation ("LSG
USA").
WHEREAS, as of the date hereof, LSG USA, a subsidiary of LSG, owns
38,326.36 shares of OFSI's Class A Common Stock, par value $.01 per share (the
"Class A Stock");
WHEREAS, OFSI, LSG and certain other parties entered into that
certain Stockholders' Agreement, dated December 6, 1993 (the "Stockholders'
Agreement"), which sets forth certain rights and obligations of LSG and LSG USA
with respect to the Class A Stock;
WHEREAS, OFSI, LSG and LSG USA each desire that LSG and LSG USA
exchange the OFSI Class A Stock for 38,326.36 shares of OFSI's Class AA Common
Stock, par value $.01 per share (the "Class AA Stock");
The parties hereto, intending to be legally bound, hereby agree as
follows:
1. Exchange. Upon the terms and subject to the conditions of this
Exchange Agreement, (i) LSG and LSG USA hereby grant, sell, convey, assign,
transfer and deliver to OFSI all right title and interest of LSG and LSG USA in
the Class A Stock, free and clear of all encumbrances, liens, or other
restrictions on transfer, and (ii) OFSI hereby accepts the Class A Stock for
exchange; each in reliance on the representations and warranties set forth
herein. In consideration for the Class A Stock, OFSI shall deliver to LSG (or,
at LSG's election, LSG USA) the Class AA Stock.
2. Deliveries and Receipt. Simultaneously with the delivery of this
Exchange Agreement, (i) LSG and LSG USA have delivered to OFSI the certificates
representing the Class A Stock, together with stock powers or appropriate
instruments of transfer endorsed in blank, and (ii) OFSI has delivered to LSG
certificates, in the name of LSG (or LSG USA), representing the Class AA Stock.
OFSI hereby acknowledges receipt of the Class A Stock and LSG and LSG USA hereby
acknowledge receipt of the Class AA Stock.
3. Representations and Warranties of LSG. Each of LSG and LSG USA
hereby represent and warrant to OFSI as follows:
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3.1. Organization and Authority. LSG is a Gesellschaft mit
beschrankter Haftung duly organized, validly existing and in good standing under
the laws of its jurisdiction of formation. LSG USA is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation. The execution, delivery and performance of this
Exchange Agreement have been duly authorized by all necessary action of LSG and
LSG USA; this Exchange Agreement has been duly executed and delivered and
constitutes a valid and binding obligation of LSG and LSG USA in accordance with
its terms subject to applicable bankruptcy, insolvency, reorganization and other
similar laws affecting creditors' rights generally and to general principles of
equity.
3.2. No Conflict. The execution and delivery of this Exchange
Agreement and performance of LSG's and LSG USA's obligations hereunder will not
(a) violate any provision of any of the documents or instruments governing the
existence or formation of LSG or LSG USA, or (b) violate any statute or law or
any judgment, decree, order, regulation or rule of any court or other
governmental body applicable to LSG or LSG USA, or (c) constitute a breach or
default under any contract to which LSG or LSG USA is a party.
3.3. Approvals. The execution, delivery and performance by LSG or
LSG USA of this Exchange Agreement does not and will not require any
registration with, consent or waiver or approval of or notice to, or other
action to with or by any governmental body.
3.4. Title. LSG USA is the beneficial and record owner of the Class
A Stock, free and clear of all security interests, liens and other encumbrances
(other than those created under the Stockholders' Agreement). Upon the
consummation of the transactions contemplated by this Exchange Agreement, OFSI
will acquire good and valid title to the Class A Stock, free and clear of all
security interests, liens and other encumbrances.
4. Representations and Warranties of OFSI. OFSI hereby represents
and warrants to LSG and LSG USA as follows:
4.1. Organization and Authority. OFSI is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. The execution, delivery and performance of this Exchange Agreement
have been duly authorized by all necessary action of OFSI; this Exchange
Agreement has been duly executed and delivered and constitutes a valid and
binding obligation of OFSI in accordance with its terms subject to applicable
bankruptcy, insolvency, reorganization and other similar laws affecting
creditors' rights generally and to general principles of equity.
4.2. No Conflict. The execution and delivery of this Exchange
Agreement and performance of OFSI's obligations hereunder will not (a) violate
any provision of the certificate of incorporation or bylaws of OFSI, or (b)
violate any statute or law or any judgment, decree, order, regulation or rule of
any court or other governmental body applicable to OFSI, or (c) constitute a
breach or default under any contract to which OFSI is a party.
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4.3. Approvals. The execution, delivery and performance by OFSI of
this Exchange Agreement does not and will not require any registration with,
consent or waiver or approval of or notice to, or other action to with or by any
governmental body.
4.4. Class AA Shares. Upon the issuance by OFSI to LSG of the Class
AA Stock hereunder, such shares shall be duly authorized, validly issued, fully
paid and nonassessable.
5. Consent Under and Amendments to Stockholders' Agreement.
5.1. Amendments. The parties hereto hereby consent and agree that
(a) The Stockholders' Agreement is hereby amended such that the
definitions of "Common Stock" and "OFSI/LSG Shares" set forth in the
Stockholders' Agreement shall include the shares of Class AA Stock received by
LSG and/or LSG USA in connection with the transactions contemplated by this
Exchange Agreement (and any Class AA Stock received by LSG after the date
hereof) and the provisions of the Stockholders' Agreement shall apply to the
Class AA Stock in the same manner as the Stockholders' Agreement applies to the
Class A Stock.
(b) Section 1.3(a) of the Stockholders' Agreement is hereby amended
and restated to read in its entirety as follows:
"(a) For each fiscal year of OFSI, the amount of dividends
paid by OFSI on the OFSI/LSG Shares shall not be less than an
amount equal to the product of (x) 30% of OFSI's consolidated
net income for the fiscal year preceding the date on which the
dividend is paid determined in accordance with United States
generally accepted accounting principles without taking into
account the effect on OFSI and its subsidiaries of the
transactions between OFSI and certain of its affiliates, on
the one hand, and Caterair Holdings Corporation, Caterair
International Corporation and certain of their respective
affiliates, on the other hand, consummated on September 29,
1995 on the basis of an arrangement mutually agreed to by LSG
and OFSI multiplied by (y) a fraction, the numerator of which
the number of OFSI/LSG Shares outstanding on the record date
for the determination of holders entitled to the dividend and
the denominator of which is the total number of shares of
OFSI's Class A Common Stock and Class AA Common Stock
outstanding on such date (excluding shares held by OFSI as
treasury shares) unless (A) there has been a Public Offering
or (B) Onex U.S. LLC and LSG otherwise agree; provided, that
the foregoing shall be subject to the following limitations:
(i) OFSI shall not be required to declare and pay
dividends on the OFSI/LSG Shares for any fiscal year in excess
of $2,500,000 (provided,
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that, any unused portion of such amount during any fiscal year
may be carried over to any subsequent fiscal year); and
(ii) no dividend may be declared or paid on the OFSI/LSG
Shares (A) in excess of the funds of OFSI legally available
for the payment of dividends; (B) other than in accordance
with OFSI's Amended and Restated Certificate of Incorporation;
or (C) if OFSI is not permitted to declare or pay such
dividend under any agreement relating to the indebtedness of
OFSI or any of its subsidiaries or if SC International
Services, Inc. is not permitted by any agreement relating to
its indebtedness to declare or pay a dividend to OFSI to
enable OFSI to pay a dividend on the OFSI/LSG Shares."
(c) Section 1.3(b) of the Stockholders' Agreement is hereby amended
by adding the following at the end of such Section:
"(viii) the issuance by OFSI of any shares of its Class AA
Common Stock."
5.2. Consent. For purposes of the Stockholders' Agreement, the
parties hereto consent to the transactions contemplated hereby.
6. Binding Effect and Assignment. All of the terms and provisions of
this Exchange Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors and assigns.
LSG may assign its rights and obligations under this Exchange Agreement to any
subsidiary of LSG, but no such assignment shall relieve LSG of its obligations
hereunder. Except as provided in the preceding sentence, no party may assign any
of its rights or obligations under this Exchange Agreement.
7. Exclusive Agreement; Amendment. This Exchange Agreement
supersedes all prior agreements among the parties with respect to its subject
matter, is intended as a complete and exclusive statement of the terms of the
agreement among the parties with respect thereto and cannot be changed or
terminated except by a written instrument executed by the party or parties
against whom enforcement thereof is sought.
8. Governing Law. This Exchange Agreement and (unless otherwise
provided), all amendments hereof and waivers and consents hereunder shall be
governed by the internal laws of the State of Delaware without regard to the
conflicts of laws principles thereof.
9. Submission to Jurisdiction.
(a) Any legal action or proceeding with respect to this Exchange
Agreement or any of the transactions contemplated hereby may be brought against
any of the parties in the courts of the State of Delaware or the United States
of America for the District of Delaware; each
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of the parties hereby consents to and generally and unconditionally, the
jurisdiction of the aforesaid courts (and the appropriate appellate courts) in
any such legal action or proceedings.
(b) Each of the parties hereto hereby irrevocably waives, in
connection with any such action or proceeding, any objection, including, without
limitation, any objection to the laying of venue or based on the grounds of
forum non conveniens, which it may now or hereafter have to bringing any such
action or proceeding in such jurisdiction.
(c) Each of the parties hereto irrevocably consents to the service
of process of any of the aforementioned courts in any action or proceeding
anywhere in the world.
(d) Nothing herein shall affect the right of any party hereto to
serve process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against any other party hereto in any other
jurisdiction.
10. Counterparts. This Exchange Agreement may be executed in two or
more counterparts, each of which shall be considered an original, but all of
which together shall constitute the same instrument.
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IN WITNESS WHEREOF, the undersigned have executed this Exchange
Agreement as of the date first written above.
ONEX FOOD SERVICES, INC.
By: Xxxxxxx X. Xxxxxxx
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Name:
Title:
LSG LUFTHANSA SERVICE GmbH
By: /s/ Authorized Signatory
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Name:
Title:
LSG LUFTHANSA SERVICE USA
CORPORATION
By: /s/ Authorized Signatory
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Name:
Title:
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Accepted and agreed to, solely with respect
to Section 5 as of this __ day of December, 1996.
ONEX CORPORATION
By: /s/ Authorized Signatory
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Name:
Title:
ONEX U.S. LLC
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Representative
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