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STOCK PURCHASE AGREEMENT
between
CCPC ACQUISITION CORP.
and
CCPC HOLDING COMPANY, INC.
Dated as of October 25, 1999
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TABLE OF CONTENTS
Page
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1. SALE AND TRANSFER OF EKCO STOCK..........................................................................1
2. PURCHASE PRICE...........................................................................................2
2.2 WOODSTREAM/ASPEN VALUE ADJUSTMENT..............................................................2
3. AGREEMENTS OF BUYER......................................................................................4
3.1 MUTUAL COOPERATION; NO INCONSISTENT ACTION.....................................................4
3.2 EMPLOYEE RELATIONS AND BENEFITS................................................................5
3.3 FUNDING OF DISBURSEMENTS.......................................................................6
4. ALTERNATIVE DISPUTE RESOLUTION...........................................................................6
5. MISCELLANEOUS AGREEMENTS OF THE PARTIES..................................................................7
5.1 NOTICES........................................................................................7
5.2 TRANSACTION TAXES..............................................................................8
5.3 FURTHER ASSURANCES.............................................................................8
5.4 EXPENSES.......................................................................................9
5.5 NON-ASSIGNABILITY..............................................................................9
5.6 AMENDMENT; WAIVER..............................................................................9
5.7 SCHEDULES AND EXHIBITS........................................................................10
5.8 THIRD PARTIES.................................................................................10
5.9 GOVERNING LAW.................................................................................10
5.10 CONSENT TO JURISDICTION.......................................................................10
5.11 CERTAIN DEFINITIONS...........................................................................11
5.12 ENTIRE AGREEMENT..............................................................................11
5.13 SECTION HEADINGS; TABLE OF CONTENTS...........................................................12
5.14 SEVERABILITY..................................................................................12
5.15 COUNTERPARTS..................................................................................12
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement, dated as of October 25,1999 (hereinafter
the "Agreement"), between CCPC Acquisition Corp., a Delaware corporation
("Acquisition"), and CCPC Holding Company, Inc., a Delaware corporation
("Buyer").
W I T N E S S E T H:
WHEREAS, Ekco Group, Inc., a Delaware corporation ("Ekco"), is a wholly
owned subsidiary of Acquisition; and
WHEREAS, Buyer desires to purchase from Acquisition and Acquisition
desires to sell to Buyer, on the terms and subject to the conditions of this
Agreement, all of the outstanding shares of common stock owned by Acquisition of
Ekco (such purchase, the "STOCK PURCHASE");
NOW, THEREFORE, in consideration of the premises and the mutual
promises contained herein, the parties hereby agree as follows:
1. SALE AND TRANSFER OF EKCO STOCK
Acquisition hereby delivers to Buyer certificates representing the
shares of common stock of Ekco owned by Acquisition (the "Ekco Stock") duly
endorsed, or accompanied by stock powers duly executed, with all necessary stock
transfer stamps attached thereto and canceled, or such other assignments, deeds,
share transfer forms, endorsements, notarial deeds of transfer or other
instruments or documents, duly stamped where necessary, as required by the
jurisdiction of organization of Ekco.
2. PURCHASE PRICE
2.1 PURCHASE PRICE
(a) The purchase price for the Ekco Stock shall be
$220,102,600 subject to adjustment as provided in Section 2.2 (the "PURCHASE
PRICE").
(b) PAYMENT OF PURCHASE PRICE. The Purchase Price shall be
payable in immediately available federal funds to such bank account as shall be
designated by Acquisition.
2.2 WOODSTREAM/ASPEN VALUE ADJUSTMENT
(a) CALCULATION OF THE WOODSTREAM/ASPEN VALUE ADJUSTMENT. In
accordance with the provisions of this Section 2.2, (x) no later than five (5)
business days after receiving from Acquisition the Woodstream/Aspen Statement
(as defined in Section 2.2(b)), Acquisition shall pay Buyer the amount, if any,
by which the Woodstream/Aspen Value (as defined in Section 2.2(b)) exceeds $103
million and (y) no later than five (5) business days after receiving from
Acquisition the Woodstream/Aspen Statement, Buyer shall pay Acquisition the
amount, if any, by which $103 million exceeds the Woodstream/Aspen Value. Such
Purchase Price adjustment shall be paid as set forth in Section 2.2(d) below.
(b) WOODSTREAM/ASPEN VALUE. No later than the first
anniversary of the date hereof (the "One-Year Anniversary"), or, in the event
that Acquisition has not sold or entered into an agreement to sell either
Woodstream, Aspen, or both by the One-
Year Anniversary, no later than five (5) business days after receiving the
Independent Appraiser Report, Acquisition shall prepare and deliver to Buyer a
statement setting forth (i) (A) in the event Acquisition has sold or entered
into an agreement to sell Woodstream, the proceeds to Acquisition from the sale
of Woodstream net of any expenses incurred in connection with such transaction
or (B) in the event Acquisition has not sold or entered into an agreement to
sell Woodstream, the fair market value of Woodstream as set forth in the
Independent Appraiser Report (in either case, the "Woodstream Value"), (ii) (A)
in the event Acquisition has sold or entered into an agreement to sell Aspen,
the proceeds to Acquisition from the sale of Aspen net of any expenses incurred
in connection with such transaction or (B) in the event Acquisition has not sold
or entered into an agreement to sell Aspen, the fair market value of Aspen as
set forth in the Independent Appraiser Report (in either case, the "Aspen
Value"), and (iii) the sum of the Woodstream Value and the Aspen Value (the
"Woodstream/Aspen Value") (such statement, the "Woodstream/Aspen Statement").
(c) INDEPENDENT APPRAISAL. In the event that Acquisition has
not sold or entered into an agreement to sell either Woodstream, Aspen or both
by the One-Year Anniversary, an investment banking, accounting, consulting or
similar firm with appropriate expertise in business valuation and that has no
ties to either Acquisition or Buyer (the "Independent Appraiser") shall be
engaged to determine the fair market value of Woodstream, Aspen or both, as the
case may be, as it or they existed on the date hereof. The Independent Appraiser
shall act as an arbitrator to determine the
value of Woodstream, Aspen or both, as the case may be, as it or they existed on
the date hereof based on the presentations by Acquisition and Buyer and on the
valuation methodologies it deems appropriate. The Independent Appraiser's
determination shall be made as soon as practicable following the date on which
the matter is submitted to it (the "Submission Date") (which Submission Date
shall be no later than five (5) business days after the One-Year Anniversary),
shall be set forth in a written statement delivered to Acquisition and Buyer
(the "Independent Appraiser Report"), and shall be final, binding, and
conclusive. The fees and expenses of the Independent Appraiser shall be shared
equally by Acquisition and Buyer. In the event a party does not comply with the
procedure and time requirements contained herein or such other procedure or time
requirements as the parties otherwise elect in writing, the Independent
Appraiser shall render a decision based solely on the evidence it has which was
timely filed by either of the parties.
(d) PAYMENT OF PURCHASE PRICE ADJUSTMENT. Payment of any
adjustment in the Purchase Price pursuant to this Section 2.2 shall be made by
wire transfer to an account designated by Acquisition or Buyer, as the case may
be, in immediately available federal funds together with interest from the date
hereof to the date of payment at the "base rate" of Citibank, N.A. or any
successor thereto in New York, New York, based on a 360-day year [Check with Xxx
Xxxxxxxx re: terms].
3. AGREEMENTS OF BUYER AND ACQUISITION
3.1 MUTUAL COOPERATION; NO INCONSISTENT ACTION
Subject to the terms and conditions hereof, Acquisition and
Buyer agree to use their reasonable best efforts to take, or cause to be taken,
all actions and to do, or cause to be done, all things necessary, proper or
advisable to consummate and make effective the transactions contemplated by this
Agreement
3.2 EMPLOYEE RELATIONS AND BENEFITS
(a) COMPARABLE BENEFITS.
(i) For a period beginning on the date hereof and ending no
earlier than September 16, 2000, Buyer shall maintain employee compensation and
benefit plans, programs, policies and fringe benefits (including any
post-employment benefits) that are no less favorable than those provided to Ekco
Employees under the Benefit Plans as in effect immediately prior to the date
hereof (the "Existing Plans"), subject to the right to amend or terminate such
Existing Plans in accordance with their terms, provided that after any such
amendment or termination such programs, policies and fringe benefits continue to
be, in the aggregate, substantially equivalent to the Existing Plans.
(ii) For a period beginning on the date hereof and ending no
earlier than September 16, 2000, Buyer shall provide to all Ekco Employees
severance pay and benefits, to the extent such pay and benefits are provided
under the applicable existing plans that provide severance benefits, as in
effect immediately prior to the date hereof (the "Existing Severance Benefits"),
which are equivalent to such Existing Severance Benefits, subject to the right
to amend or terminate such Existing Severance Benefits in accordance with their
terms, provided that after any such amendment or termination such severance pay
and benefits continue to be substantially equivalent to the Existing Severance
Benefits. Further, Buyer shall credit the prior
service of all Ekco Employees to Ekco for purposes of determining the
eligibility, vesting or qualification of such employees under Existing Plans,
Existing Severance Benefits and any successor plans and benefit programs and
shall waive all preexisting condition exclusions under any health Benefit Plans
which were waived under such Plans.
(b) EMPLOYMENT LIABILITIES. Except as otherwise specifically
provided in this Section 5.6, Buyer shall be responsible and liable for (i) all
liabilities and obligations relating to the participation of Ekco Employees
under any welfare Benefit Plans before, on or after the date hereof (including,
but not limited to, medical, dental and life insurance benefits for the benefit
of Ekco Employees who are receiving disability income payments under any Benefit
Plan), and (ii) all liabilities and obligations in connection with the
employment (or termination of employment) of the Ekco Employees before, on or
after the date hereof including the assumption of any applicable employment and
severance agreements and collective bargaining agreements with respect to the
Ekco Employees.
(c) NO RIGHTS CONFERRED ON EMPLOYEES. Nothing herein,
expressed or implied, shall confer upon any employee or former employee of Ekco
or Buyer or any of their affiliates any rights or remedies including, without
limitation, any right to employment or continued employment for any specified
period of any nature or kind whatsoever, under or by reason of this Agreement.]
3.3 FUNDING OF DISBURSEMENTS
Effective at the opening of business on the date hereof, Buyer
shall be
responsible for funding all disbursements of Ekco.
4. ALTERNATIVE DISPUTE RESOLUTION
The parties shall attempt in good faith to resolve any dispute arising
out of or relating to this Agreement promptly by negotiations between executives
who have authority to settle the controversy. Any party may give the other party
written notice of any dispute not resolved in the normal course of business.
Within twenty (20) days after delivery of said notice, executives of both
parties shall meet at a mutually acceptable time and place, and thereafter as
often as they reasonably deem necessary, to exchange relevant information and to
attempt to resolve the dispute.
5. MISCELLANEOUS AGREEMENTS OF THE PARTIES
5.1 NOTICES.
All communications provided for hereunder shall be in writing and shall
be deemed to be given when delivered in person or by private courier with
receipt, when telefaxed and received, or three (3) days after being deposited in
the United States mail, first-class, registered or certified, return receipt
requested, with postage paid and,
If to Buyer: CCPC Holding Company, Inc.
Xxx Xxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: 000-000-0000
If to Acquisition: CCPC Acquisition Corp.
One Little Falls Centre
0000 Xxxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: 000-000-0000
With a Copy to: Xxxxxxx X. Xxxxx, Esq.
Senior Vice President and
General Counsel
Xxxxxx, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Facsimile: 000-000-0000
and
Xxxxx X. Xxxxxx, Esq.
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
or to such other address as any such party shall designate by
written notice to the other parties hereto.
5.2 TRANSACTION TAXES.
Buyer shall be responsible for the payment of all
sales and transfer taxes, if any, which may be payable with respect to the
consummation of the transactions contemplated by this Agreement and to the
extent any exemptions from such taxes are available Buyer and Acquisition shall
cooperate to prepare any certificates or other documents necessary to claim such
exemptions.
5.3 FURTHER ASSURANCES
Upon request from time to time, Acquisition or Buyer shall execute or
cause its subsidiaries to execute and deliver all documents, take all rightful
oaths, and do all other acts that may be reasonably necessary or desirable, in
the reasonable opinion of counsel for Buyer or Acquisition, as the case may be,
to perfect or record the title of Buyer, or any successor of Buyer, to the
assets transferred or to be transferred under this Agreement, or to aid in the
prosecution, defense, or other litigation of any rights arising from said
transfer (provided that Buyer or Acquisition, as the case may be, shall
reimburse Acquisition or Buyer and their respective affiliates for all out of
pocket costs and expenses resulting from any such request).
5.4 EXPENSES.
Subject to Section 8.3, Acquisition and Buyer shall each pay their
respective expenses (such as legal, investment banker and accounting fees)
incurred in connection with the origination, negotiation, execution and
performance of this Agreement.
5.5 NON-ASSIGNABILITY.
This Agreement shall inure to the benefit of and be binding on the
parties hereto and their respective successors and permitted assigns. This
Agreement shall not be assigned by either party hereto without the express prior
written consent of the other party, and any attempted assignment, without such
consents, shall be null and void.
5.6 AMENDMENT; WAIVER.
This Agreement may be amended, supplemented or otherwise modified only
by a written instrument executed by the parties hereto. No waiver by either
party of any of the provisions hereof shall be effective unless explicitly set
forth in writing and executed by the party so waiving. Except as provided in the
preceding sentence, no action taken pursuant to this Agreement, including
without limitation, any investigation by or on behalf of any party, shall be
deemed to constitute a waiver by the party taking such action of compliance with
any covenants or agreements contained herein, and in any documents delivered or
to be delivered pursuant to this Agreement and in connection with the closing
hereunder. The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach.
5.7 SCHEDULES AND EXHIBITS.
All exhibits and schedules hereto are hereby incorporated by reference
and made a part of this Agreement.
5.8 THIRD PARTIES.
This Agreement does not create any rights, claims or benefits inuring
to any person that is not a party hereto nor create or establish any third party
beneficiary hereto.
5.9 GOVERNING LAW.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
5.10 CONSENT TO JURISDICTION.
Each of the parties hereto, irrevocably submits to the exclusive
jurisdiction of the United States District Court for the Southern District of
New York located in the borough of Manhattan in the City of New York, or if such
court does not have jurisdiction, the Supreme Court of the State of New York,
New York County, for the purposes of any suit, action or other proceeding
arising out of this Agreement or any transaction contemplated hereby. Each of
the parties hereto, further agrees that service of any process, summons, notice
or document by U.S. registered mail to such party's respective address set forth
in Section 8.1 shall be effective service of process for any action, suit or
proceeding in New York with respect to any matters to which it has submitted to
jurisdiction as set forth above in the immediately preceding sentence. Each of
the parties hereto, irrevocably and unconditionally waives any objection to the
laying of venue of any action, suit or proceeding arising out of this Agreement
or the transactions contemplated hereby in (a) the United States District Court
for the Southern District of New York or (b) the Supreme Court of the State of
New York, New York County, and hereby further irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such action,
suit or proceeding brought in any such court has been brought in an inconvenient
forum.
5.11 CERTAIN DEFINITIONS.
For purposes of this Agreement, the term:
(i) "AFFILIATE" of a person means a person that directly or indirectly,
through one or more intermediaries, controls, is controlled by, or is
under common
control with, the first mentioned person;
(ii) "PERSON" means an individual, corporation, partnership,
association, trust, incorporated organization, other entity or group
(as defined in Section 13(d)(3) of the Exchange Act);
(iii) "SUBSIDIARY" or "SUBSIDIARIES" of Buyer, Acquisition or any
other person means any corporation, partnership, joint venture or
other legal entity of which Buyer, Acquisition or such other person,
as the case may be (either alone or through or together with any other
subsidiary), owns, directly or indirectly, 50% or more of the stock or
other equity interests the holder of which is generally entitled to
vote for the election of the board of directors or other governing
body of such corporation or other legal entity; and
5.12 ENTIRE AGREEMENT.
This Agreement, and the Schedules and Exhibits hereto set forth the
entire understanding of the parties hereto and no modifications or amendments to
this Agreement shall be binding on the parties unless in writing and signed by
the party or parties to be bound by such modification or amendment.
5.13 SECTION HEADINGS; TABLE OF CONTENTS.
The section headings contained in this Agreement and the Table of
Contents to this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
5.14 SEVERABILITY.
If any provision of this Agreement shall be declared by any court of
competent jurisdiction to be illegal, void or unenforceable, all other
provisions of this Agreement shall not be affected and shall remain in full
force and effect.
5.15 COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which together shall be
deemed to be one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Stock Purchase
Agreement to be duly executed as of the date first above written.
CCPC ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
CCPC HOLDING COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and Chief
Financial Officer
