EXHIBIT 2.3
AGREEMENT AND PLAN OF REORGANIZATION
BY AND AMONG
FRESCHE BLOSSOMS L.L.C.,
a Delaware limited liability company
UAF, L.P.,
a Delaware Limited Partnership
AGRIMAX FLORAL PRODUCTS, INC.,
a Minnesota corporation
UNIVERSAL AMERICAN FLOWERS, INC.,
a Florida corporation
AND
Certain Other Persons Named in the Agreement
AGREEMENT AND PLAN OF REORGANIZATION
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Page
1.1 Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Agreement of Limited Partnership of
the Partnership. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.3 AgriMax Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.4 AgriMax Equipment Xxxx of Sale. . . . . . . . . . . . . . . . . . . . 2
1.5 AgriMax Facilities. . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.6 AgriMax Intellectual Property . . . . . . . . . . . . . . . . . . . . 2
1.7 AgriMax Intellectual Property Assignment. . . . . . . . . . . . . . . 2
1.8 Assignment of Company Interests . . . . . . . . . . . . . . . . . . . 2
1.9 Certificate of Limited Partnership of the Partnership . . . . . . . . 2
1.10 Closing and Closing Date. . . . . . . . . . . . . . . . . . . . . . . 2
1.11 Competing Business. . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.12 Constituent Entities. . . . . . . . . . . . . . . . . . . . . . . . . 2
1.13 Effective Time. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.14 Encumbrance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.15 Financing Document. . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.16 Financial Statements. . . . . . . . . . . . . . . . . . . . . . . . . 3
1.17 Indemnitees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.18 Main Lease. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.19 Merger. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.20 NewCorp . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.21 Non-Member Managers . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.22 Operating Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.23 Percentage Interest . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.24 Restricted Stock Purchase Agreement . . . . . . . . . . . . . . . . . 3
1.25 Shares. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.26 Sublease. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.27 Surviving Entity. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.28 UAF Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.29 UAF Xxxx of Sale, Assignment, Assumption and
General Conveyance. . . . . . . . . . . . . . . . . . . . . . . . . 3
1.30 UAF Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.31 UAF Common Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.32 UAF Value . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE II
TRANSFER OF INTERESTS OF UAF MEMBERS IN COMPANY TO UAF
Page
2.1 Transfer of Interests of UAF Members . . . . . . . . . . . . . . . . . 4
2.2 Acceptance of UAF as Substitute Member of the Company. . . . . . . . . 4
ARTICLE III
CONVEYANCE AND ASSIGNMENT OF CERTAIN ASSETS TO PARTNERSHIP
3.1 Formation of Partnership . . . . . . . . . . . . . . . . . . . . . . . 4
3.2 Conveyance and Assignment of AgriMax Equipment
and AgriMax Intellectual Property to Partnership . . . . . . . . . . 4
3.3 Conveyance and Assignment of Certain UAF
Assets to Partnership. . . . . . . . . . . . . . . . . . . . . . . . 5
3.4 Transfer Taxes and Fees. . . . . . . . . . . . . . . . . . . . . . . . 5
3.5 Activities of UAF Following Closing. . . . . . . . . . . . . . . . . . 5
3.6 Agreements Relating to Competition With Partnership . . . . . . . . . 5
ARTICLE IV
MERGER OF THE COMPANY INTO THE PARTNERSHIP
4.1 Merger and Effective Time. . . . . . . . . . . . . . . . . . . . . . . 6
4.2 Certificate of Limited Partnership of Surviving Entity . . . . . . . . 6
4.3 Agreement of Limited Partnership of Surviving Entity . . . . . . . . . 6
4.4 Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.5 Effect of the Merger . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.6 Capital Accounts of and Percentage Interest in the Partnership . . . . 7
ARTICLE V
OTHER MATTERS
5.1 Sale of UAF Common Stock to Xxxxx and Xxxxxx . . . . . . . . . . . . . 7
5.2 Appointment of AgriMax Representative to
Board of Directors of UAF. . . . . . . . . . . . . . . . . . . . . . 8
5.3 Financing Assistance . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.4 Effect on Operating Agreement. . . . . . . . . . . . . . . . . . . . . 9
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Page
6.1 Representations and Warranties of UAF . . . . . . . . . . . . . . . .10
6.2 Representations and Warranties of AgriMax . . . . . . . . . . . . . .12
6.3 Representations and Warranties of UAF Members
and Non-Member Managers. . . . . . . . . . . . . . . . . . . . . . .14
ARTICLE VII
CLOSING; EFFECTIVE DATE
7.1 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
7.2 Simultaneous Transactions . . . . . . . . . . . . . . . . . . . . . .15
7.3 Post-Closing Actions. . . . . . . . . . . . . . . . . . . . . . . . .15
ARTICLE VIII
INDEMNIFICATION BY AGRIMAX
8.1 Indemnification by AgriMax. . . . . . . . . . . . . . . . . . . . . .15
ARTICLE IX
GENERAL PROVISIONS
9.1 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
9.2 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
9.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
9.4 Interpretation. . . . . . . . . . . . . . . . . . . . . . . . . . . .18
9.5 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
9.6 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . .18
9.7 No Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
9.8 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
9.9 Other Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . .19
9.10 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . . . .19
9.11 Absence of Third-Party Beneficiary Rights . . . . . . . . . . . . . .19
9.12 Mutual Drafting . . . . . . . . . . . . . . . . . . . . . . . . . . .19
9.13 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
SIGNATURE PAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
Exhibits
Exhibit 2.1 - Assignment of Company Interests
Exhibit 3.2(a) - AgriMax Equipment Xxxx of Sale
Exhibit 3.2(b) - AgriMax Intellectual Property Assignment
Exhibit 3.3 - UAF Xxxx of Sale, Assignment, Assumption
and General Conveyance
Exhibit 5.1 - Restricted Stock Purchase Agreement
Schedules
Schedule 3.1 - List of Additional AgriMax Equipment
Schedule 3.2(a) - Encumbrances Pertaining to AgriMax Equipment
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization is entered into as of the 27th
day of October, 1995, by and among Fresche Blossoms L.L.C., a Delaware limited
liability company (the "Company"), UAF, L.P., a Delaware limited partnership
(the "Partnership"), AgriMax Floral Products, Inc., a Minnesota corporation
("AgriMax"), Universal American Flowers, Inc., a Florida corporation ("UAF"),
Xxxxxxx X. XxXxxxx ("XxXxxxx"), Xxxx X. Xxxxxx ("Xxxxxx"), Xxxxxxxx X. Xxxxx
("Xxxxx"), Xxxxxxx X. Xxxx ("Xxxx"), Xxxx X. Xxxxx, Xx. ("Xxxxx"), Xxxxxxx X.
Xxxxxx ("Xxxxxx"), Xxxx Xxxxx ("Xxxxx") and Xxxxxxx X. Xxxxxx ("Xxxxxx").
WITNESSETH:
WHEREAS, the Company was formed pursuant to an Operating and Transition
Agreement dated as of May 1, 1995 (the "Operating Agreement") for the purpose,
among other things, of operating a floral products business consisting of the
combination of assets and resources described in the Operating Agreement;
WHEREAS, the Operating Agreement provided procedures pursuant to which
the members of the Company could determine whether or not the combination of
assets and resources described in the Operating Agreement was desirable and
whether or not the operations of the Company should be combined with the
operations of UAF;
WHEREAS, the parties deem such combination desirable but further desire
to effect such combination on terms different from the terms provided for in
the Operating Agreement; and
WHEREAS, this Agreement sets forth the terms on which the parties desire
to effect such combination.
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements contained herein, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
In addition to terms defined above or in subsequent sections of this
Agreement, certain capitalized terms used herein have the respective meanings
assigned below.
1.1 "Agreement" means this Agreement and Plan of Reorganization, as it
may be amended or supplemented from time to time.
1.2 "Agreement of Limited Partnership of the Partnership" means the
agreement described in Section 3.1, as may be amended or supplemented from
time to time.
1.3 "AgriMax Equipment" means all equipment listed on Schedule 1.6 of
the Operating Agreement which was located at the AgriMax Facilities and used
by AgriMax in its packaged fresh flower and floral preservative distribution
business as of May 1, 1995 and all other equipment listed on "Schedule 1.3"
attached hereto which is located at the AgriMax Facilities as of the date
hereof.
1.4 "AgriMax Equipment Xxxx of Sale" means a xxxx of sale
substantially in the form attached hereto as "Exhibit 3.2(a)".
1.5 "AgriMax Facilities" means the buildings, offices, warehouses,
improvements and other real property leased by AgriMax at 0000 Xxxxxxxxx
Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx.
1.6 "AgriMax Intellectual Property" means the trademarks Fresche
Blossoms(R), Everguard(R), and Fresche Blossoms Express (TM), the formula for
the Everguard preservative, any AgriMax trade secrets existing on May 1, 1995
and all permits, licenses and franchises used by AgriMax in its packaged fresh
flower and floral preservative distribution business as of May 1, 1995, to the
extent transferable.
1.7 "AgriMax Intellectual Property Assignment" means an assignment in
substantially the form attached hereto as "Exhibit 3.2(b)".
1.8 "Assignment of Company Interests" means an assignment in
substantially the form attached hereto as "Exhibit 2.1".
1.9 "Certificate of Limited Partnership of the Partnership" means the
certificate described in Section 3.1.
1.10 "Closing" and "Closing Date" mean the time and date, as set forth
in Section 6.1 hereof, on which this Agreement and the related agreements and
instruments referred to herein are executed and delivered by the respective
parties hereto and thereto, and the Merger and the related transactions are
consummated.
1.11 "Competing Business" means any business that is principally
engaged in business activities that are in material competition with business
activities in which the Partnership, NewCorp or any successor entity is
engaged.
1.12 "Constituent Entities" has the meaning set forth in Section 4.1.
1.13 "Effective Time" has the meaning set forth in Section 4.1.
1.14 "Encumbrance" means any mortgage, claim, charge, lien,
encumbrance, easement, limitation, restriction, commitment, or security
interest, except statutory liens securing taxes, assessments, and payments not
yet due, and liens incurred in the ordinary course of business (including
liens in favor of mechanics or materialmen).
1.15 "Financing Documents" has the meaning set forth in Section 6.1(g).
1.16 "Financial Statements" mean the audited balance sheets of UAF at
June 30, 1994 and at June 30, 1995, and audited statements of income and cash
flows for the twelve-month period ended June 30, 1994 and the twelve-month
period ended June 30, 1995, prepared in accordance with generally accepted
accounting principles, consistently applied.
1.17 "Indemnitees" has the meaning set forth in Article XIII.
1.18 "Main Lease" has the meaning set forth in Section 6.2(h).
1.19 "Merger" means the merger of the Company into the Partnership as
set forth in Section 4.1.
1.20 "NewCorp" has the meaning set forth in the Agreement of Limited
Partnership of the Partnership.
1.21 "Non-Member Managers" means Xxxxx and Xxxxxx.
1.22 "Operating Agreement" means the Operating and Transition Agreement
dated as of May 1, 1995, among AgriMax, McClure, Butler, Owens, Finn, Xxxxx
and Xxxxxx, as it may be amended or supplemented from time to time.
1.23 "Percentage Interest" has the meaning set forth in the Agreement
of Limited Partnership of the Partnership.
1.24 "Restricted Stock Purchase Agreement" means an agreement in
substantially the form attached hereto as "Exhibit 5.1".
1.25 "Shares" has the meaning set forth in Section 6.1(f).
1.26 "Sublease" means the Sublease Agreement dated effective as of May
1, 1995 between AgriMax and the Company covering the AgriMax Facilities.
1.27 "Surviving Entity" has the meaning set forth in Section 4.1.
1.28 "UAF Assets" means all of the properties, rights and interests of
UAF to be conveyed to the Partnership as set forth in the UAF Xxxx of Sale,
Assignment, Assumption and General Conveyance.
1.29 "UAF Xxxx of Sale, Assignment, Assumption and General Conveyance"
means an agreement in substantially the form attached hereto as "Exhibit 3.3".
1.30 "UAF Members" mean McClure, Butler, Owens, Finn, Xxxxx and Xxxxxx.
1.31 "UAF Common Stock" means shares of the common stock, par value
$1.00 per share, of UAF.
1.32 "UAF Value" means a dollar amount equal to eight (8) times UAF's
income before interest, taxes, depreciation and amortization for the 12-month
period ended June 30, 1995, calculated based on the Financial Statements for
such period in accordance with generally accepted accounting principles
consistently applied.
ARTICLE II
TRANSFER OF INTERESTS OF UAF MEMBERS IN COMPANY TO UAF
2.1 Transfer of Interests of UAF Members. Immediately prior to the
Merger, each of the UAF Members shall assign and transfer such UAF Member's
interests in the Company to UAF by executing and delivering an Assignment of
Company Interests in substantially the form attached hereto as "Exhibit 2.1".
The UAF Members shall receive no direct consideration for such assignment and
transfer, and the UAF Members acknowledge that the consideration for such
assignment and transfer shall be the increased value, if any, of the UAF
Common Stock held by the UAF Members resulting from the transactions
contemplated by this Agreement.
2.2 Acceptance of UAF as Substitute Member of the Company. Upon the
assignment and transfer described in Section 2.1, UAF shall execute and
deliver a counterpart signature page to the Operating Agreement, shall enter
into an admission agreement with the Company as provided in Section 17.3 of
the Operating Agreement and shall become a member of the Company. By
executing and delivering this Agreement, AgriMax (as the only other remaining
member of the Company following such assignment and transfer) hereby consents
to the admission of UAF as a member of the Company.
ARTICLE III
FORMATION OF PARTNERSHIP;
CONVEYANCE AND ASSIGNMENT OF CERTAIN ASSETS TO PARTNERSHIP
3.1 Formation of Partnership. On or prior to the Closing Date, UAF
and AgriMax shall have entered into an Agreement of Limited Partnership in
form and content acceptable to UAF and AgriMax providing for and establishing
the Partnership pursuant to the laws of the State of Delaware. UAF shall be
the general partner of the Partnership and AgriMax shall be the initial
limited partner of the Partnership. In its capacity as general partner, UAF
shall have caused a Certificate of Limited Partnership of the Partnership in
form and content acceptable to UAF and AgriMax to be executed and filed with
the Secretary of State of the State of Delaware.
3.2 Conveyance and Assignment of AgriMax Equipment and AgriMax
Intellectual Property to Partnership. Immediately prior to the Merger,
AgriMax shall (a) convey and assign all of its rights, title and interests in
and to the AgriMax Equipment to the Partnership, free and clear of any and all
Encumbrances (other than those set forth in "Schedule 3.2(a)"), by executing
and delivering the AgriMax Equipment Xxxx of Sale in substantially the form
attached hereto as "Exhibit 3.2(a)" and (b) shall convey and assign all of its
rights, title and interests in and to the AgriMax Intellectual Property to the
Partnership free and clear of any and all Encumbrances by executing and
delivering the AgriMax Intellectual Property Assignment in substantially the
form attached hereto as "Exhibit 3.2(b)".
3.3 Conveyance and Assignment of Certain UAF Assets to Partnership.
Immediately prior to the Merger, UAF shall convey and assign all of its
rights, title and interests in and to the UAF Assets to the Partnership by
executing and delivering the UAF Xxxx of Sale, Assignment, Assumption and
General Conveyance in substantially the form attached hereto as "Exhibit 3.3"
and the Partnership shall assume the liabilities of UAF and any Encumbrances
upon the UAF Assets as provided therein.
3.4 Transfer Taxes and Fees. The Partnership shall assume and pay all
obligations for taxes and governmental fees incurred or imposed in connection
with the transfer as provided in Sections 3.2 and 3.3 of the AgriMax
Equipment, the AgriMax Intellectual Property and the UAF Assets to the
Partnership, other than any taxes on AgriMax's or UAF's respective net income.
3.5 Activities of UAF Following Closing. From and after the Closing
and for so long as UAF retains any interest in the Partnership, UAF shall not,
without the prior written consent of AgriMax, engage in any business
activities other than maintaining its corporate existence, holding its
interests in the Partnership, and acting as general partner of the Partnership
pursuant to the Agreement of Limited Partnership of the Partnership.
3.6 Agreements Relating to Competition With Partnership. The parties
acknowledge that UAF or Affiliates of UAF may from time to time in the future
desire to acquire one or more Competing Businesses. The provisions of this
Section 3.6 set forth certain agreements of the parties concerning activities
of UAF or its Affiliates regarding competition with the Partnership, NewCorp
or any successor entity. For purposes of this Section 3.6, the determination
as to whether a person or entity is an Affiliate of UAF shall be made at the
time the proposed competing activity is to be conducted and not as of the date
of this Agreement.
(a) In the event a Competing Business is proposed to be acquired
by the Partnership, NewCorp or any successor entity (and provided the
acquisition requires the consent of AgriMax or any Affiliate of AgriMax
pursuant to the Agreement of Limited Partnership of the Partnership or
any other agreement or applicable law), and if the acquisition of the
Competing Business is prevented as a result of the failure by AgriMax or
any Affiliate of AgriMax to provide any necessary consent or approval,
then UAF or its Affiliates shall be permitted to acquire the Competing
Business and to engage in activities pursuant to such Competing Business
as then being conducted that are in competition with the Partnership,
NewCorp or any successor entity.
(b) In the event a Competing Business is proposed to be acquired
by UAF or any Affiliate of UAF, then UAF or its Affiliates shall offer
or cause to be offered to AgriMax or its Affiliates the opportunity to
participate in such Competing Business by acquiring (on terms not less
favorable than the terms upon which UAF or its Affiliates propose to
acquire the Competing Business) a percentage equity ownership interest
in the Competing Business equal to the then percentage equity interest
of AgriMax or its Affiliates in the Partnership, NewCorp or any
successor entity. If AgriMax or its Affiliates decline to participate
in such Competing Business by acquiring the full amount of equity
ownership offered as provided in the preceding sentence, then UAF or its
Affiliates shall be permitted to acquire the Competing Business and to
engage in activities pursuant to such Competing Business as then being
conducted that are in competition with the Partnership, NewCorp or any
successor entity.
(c) Except as otherwise provided in this Section 3.6, neither
UAF nor its Affiliates shall acquire or engage in any Competing Business
without the prior written consent of AgriMax. The restrictions in this
Section 3.6 or the ability of UAF or its Affiliates to engage in
competitive activities shall expire at such time as (i) UAF or its
Affiliates cease to own any equity interest in the Partnership, NewCorp
or any successor entity, (ii) AgriMax or its Affiliates cease to own any
equity interest in the Partnership, NewCorp or any successor entity or
(iii) the Partnership, NewCorp or UAF are required to file reports with
the Securities and Exchange Commission pursuant to Sections 13 or 15(d)
of the Securities Exchange Act of 1934, as amended.
ARTICLE IV
MERGER OF THE COMPANY INTO THE PARTNERSHIP
4.1 Merger and Effective Time. Subject to the terms and conditions of
this Agreement and in accordance with the provisions of the laws of the State
of Delaware, the Company shall be merged with and into the Partnership, which
shall be and is herein sometimes referred to as the "Surviving Entity," and
all of which entities sometimes hereinafter being referred to as the
"Constituent Entities." A properly executed Certificate of Merger shall be
filed with the Secretary of State of the State of Delaware in accordance with
the laws of the State of Delaware on the Closing Date. The Merger shall
become effective at the time of filing of the Certificate of Merger as
provided above (hereinafter referred to as the "Effective Time.")
4.2 Certificate of Limited Partnership of Surviving Entity. At the
Effective Time, the Certificate of Limited Partnership of the Partnership
shall become the Certificate of Limited Partnership of the Surviving Entity.
4.3 Agreement of Limited Partnership of Surviving Entity. At the
Effective Time, the Agreement of Limited Partnership of the Partnership shall
become the Agreement of Limited Partnership of the Surviving Entity.
4.4 Partners. The partners of the Partnership at the Effective Time
shall be the partners of the Surviving Entity until such partners shall
withdraw or be removed or additional or substituted partners shall be admitted
as provided in the Agreement of Limited Partnership. The members of the
Company shall cease to have any power or authority in such capacity with
respect to any Constituent Entity at the Effective Time.
4.5 Effect of the Merger. At the Effective Time, the separate
existence of each of the Constituent Entities other than the Surviving Entity
shall cease, and in accordance with the terms of this Agreement, all of the
rights, privileges and powers of the Constituent Entities and all property,
real, personal and mixed, and all debts due to either of the Constituent
Entities, as well as all other things and causes of action belonging to each
of the Constituent Entities shall be vested in the Surviving Entity, and shall
thereafter be the property of the Surviving Entity as they were of each
Constituent Entity, and the title to any real property vested by deed or
otherwise in either of the Constituent Entities shall not revert or be in any
way impaired by reason of the Merger, but all rights of creditors and all
liens upon any property of either of the Constituent Entities shall be
preserved unimpaired. All debts, liabilities and duties of each Constituent
Entity shall thenceforth attach to the Surviving Entity, and may be enforced
against it to the same extent as if the debts, liabilities and duties had been
incurred or contracted by it.
4.6 Capital Accounts of and Percentage Interest in the Partnership.
At the Effective Time, UAF and AgriMax will be the only members of the Company
and the only partners of the Partnership. In connection with and as a result
of the Merger and the respective capital contributions to the Partnership
provided for in Sections 3.2 and 3.3, (i) UAF and AgriMax shall be credited on
the books of the Partnership with capital account balances in the amount of
$8,715,158 for UAF (an amount equal to 82.19% of the sum of $2,000,000 plus
the UAF Value) and $1,888,514 for AgriMax (an amount equal to 17.81% of the
sum of $2,000,000 plus the UAF Value) and (ii) the initial Percentage Interest
of UAF in the Partnership will be 82.19% and the initial Percentage Interest
of AgriMax in the Partnership will be 17.81%. The relative rights of UAF and
AgriMax pertaining to distributions from the Partnership and voting rights
based on respective capital account balances and Percentage Interests as well
as other matters pertaining to the operation and affairs of the Partnership
shall be as provided in the Agreement of Limited Partnership of the
Partnership.
ARTICLE V
OTHER MATTERS
5.1 Sale of UAF Common Stock to Xxxxx and Xxxxxx. UAF shall issue and
sell 3,959 shares of UAF Common Stock to Xxxxx and 3,959 shares of UAF Common
Stock to Xxxxxx. Each such purchase and sale shall be evidenced by and
conducted in accordance with a Restricted Stock Purchase Agreement in
substantially the form attached hereto as "Exhibit 5.1" to be executed and
delivered by UAF and Xxxxx or Xxxxxx, as the case may be. The consideration
for the UAF Common Stock and other terms of the purchase and sale shall be as
set forth in the applicable Restricted Stock Purchase Agreement.
5.2 Appointment of AgriMax Representative to Board of Directors of
UAF. For so long as (i) UAF retains any interest in the Partnership and (ii)
AgriMax, or its successors or assigns, retains any interest in the
Partnership, each of McClure, Butler, Owens, Finn, Suber, Wright, Xxxxx and
Xxxxxx agree to vote all of the UAF Common Stock or other voting securities of
UAF over which he or she has control and to take all other necessary actions
within his or her control in order:
(a) to cause the election to the Board of Directors of UAF of
one (1) person designated by AgriMax (which person shall be acceptable
to XxXxxxx in his reasonable discretion);
(b) to cause the removal from the Board of Directors of the
representative designated by AgriMax upon the express written request of
AgriMax;
(c) in the event that the representative designated by AgriMax
ceases to serve as a member of the Board of Directors during his term of
office, to cause the resulting vacancy on the Board to be filled by a
representative designated by AgriMax (which person shall be acceptable
to XxXxxxx in his reasonable discretion); and
(d) to refrain from, and to cause the Company to refrain from,
taking any action, without the prior written consent of AgriMax, to
remove the Board representative designated by AgriMax.
Each of McClure, Butler, Owens, Finn, Suber, Wright, Xxxxx and Xxxxxx
further agree that, for so long as the agreements set forth above with respect
to the voting of certain shares by such persons remain in effect, he or she
shall not, without the prior written consent of AgriMax, sell, transfer,
assign or convey any of the shares that are subject to such agreements to any
other person or entity unless such person or entity has agreed in writing to
vote such shares and to take the other actions as set forth in clauses (a)
through (d) above.
In addition, for so long as (i) UAF retains any interest in the
Partnership and (ii) AgriMax, or its successors or assigns, retains any
interest in the Partnership, UAF shall not, without the prior written consent
of AgriMax, issue any shares of UAF Common Stock or other voting securities of
UAF to any person or entity unless such person or entity has first agreed in
writing to vote such shares and to take the other actions as set forth in
clauses (a) through (d) above.
All certificates evidencing shares of UAF Common Stock or other voting
securities of UAF shall bear a legend in substantially the following form:
"The shares represented by this certificate are subject to certain
transfer and other restrictions stated in that certain Agreement
and Plan of Reorganization dated as of October 27, 1995 which is
on file at the principal offices of the Corporation. By accepting
this certificate, or any of the shares represented hereby, such
transferee agrees automatically to be bound by and to accept the
restrictions set forth in such Agreement and Plan of
Reorganization."
Each of McClure, Butler, Owens, Finn, Suber, Wright, Xxxxx and Xxxxxx
have pledged all of the UAF Common Stock owned by them to Sun Bank, National
Association pursuant to a pledge agreement. Anything in this Section 5.2 to
the contrary notwithstanding, the parties hereby agree that in the event of
any foreclosure pursuant to such pledge agreement or other event giving Sun
Bank, National Association, the right to vote the UAF Common Stock or other
voting securities of UAF owned by the above-named persons, Sun Bank, National
Association, and its successors or assigns, shall not be required to vote such
shares or take the other actions set forth in clauses (a) through (d) above.
5.3 Financing Assistance. For so long as AgriMax, or any affiliate
of AgriMax, hold any interest in the Partnership or any shares of capital
stock of NewCorp, AgriMax shall cause its indirect parent, Epitope, Inc., to
consult with the Partnership or NewCorp, as the case may be, and provide
advisory assistance as reasonably requested by the Partnership or NewCorp, as
the case may be, regarding financing of the Partnership's or NewCorp's
operations.
5.4 Effect on Operating Agreement. The Merger and the other
transactions contemplated by this Agreement are intended by the parties to
effect the transactions referred to in the Operating Agreement as the
"Combination," with such modifications as are set forth herein. This
Agreement sets forth and shall control in all respects the agreements of the
parties concerning the combination of certain assets of the Company and
certain assets of UAF and AgriMax as set forth herein and, as a result, shall
replace and supersede the provisions of the Operating Agreement pertaining
specifically to the manner of effecting the "Combination" and the
representations, warranties and agreements contained in the Operating
Agreement that were to have been given or made as of the effective date of the
"Combination." In this regard, it is understood and agreed that this
Agreement shall replace and supersede the representations and warranties of
the parties contained in the Operating Agreement that were to have been given
as of the "Transition Effective Date" (as defined in the Operating Agreement)
and that the representations and warranties contained in the Operating
Agreement have not been and will not be given pursuant to the Operating
Agreement as of any date other than the "Effective Date" under the Operating
Agreement. Except to the extent specifically indicated in this Section 5.4,
this Agreement and the transactions contemplated hereby shall not otherwise
alter or affect the obligations, rights, duties or liabilities of the parties
under the Operating Agreement relating to the formation and operation of the
Company prior to the Merger, including, without limitation, the
representations, warranties and agreements made or given as of the "Effective
Date" under the Operating Agreement and the indemnifications by AgriMax set
forth in Section 20 of the Operating Agreement.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1 Representations and Warranties of UAF. UAF represents and
warrants to AgriMax, as of the Closing Date, as follows:
(a) Authority; Binding Effect. UAF has full right, power and
authority to execute, deliver and perform this Agreement and the related
agreements referred to herein that are to be executed, delivered and
performed by UAF and to consummate the transactions contemplated hereby
and thereby. This Agreement is, and the related agreements referred to
herein that are to be executed and delivered by UAF are, the valid and
binding agreements of UAF enforceable against UAF in accordance with
their terms, except as such enforcement may be limited by the effect of
bankruptcy, reorganization, insolvency and other similar creditors
rights laws generally, and by equitable principles regardless of whether
the preceding is brought at law or in equity. The execution, delivery
and performance of this Agreement and the related agreements by UAF have
been duly authorized by the board of directors and shareholders of UAF.
No other proceedings on the part of UAF's board of directors or
shareholders are necessary to authorize the execution, delivery and
performance of this Agreement or the related agreement by UAF.
(b) No Consents. Except for consents in connection with the
transfer of the UAF Assets as provided herein that are required pursuant
to the Financing Documents and other agreements pertaining to or
included in the UAF Assets, no consent of, approval by, filing with, or
notice to any governmental authority or other person or entity is
required by UAF to execute, deliver and perform this Agreement or the
related agreements referred to herein that are to be executed, delivered
and performed by UAF or to consummate the transactions contemplated
hereby or thereby.
(c) No Violations. Neither the execution of this Agreement and
the related agreements referred to herein that are to be executed and
delivered by UAF nor the consummation of the transactions contemplated
hereby and thereby will result in (i) a violation or conflict with any
provision of UAF's articles of incorporation or bylaws, (ii) a breach
of, or default under, any term or provision of any contract (including,
without limitation, any Financing Document), indebtedness, lease,
encumbrance, commitment, license, franchise, permit, authorization, or
concession to which UAF is a party or by which its assets are bound
(except for violations, breaches or defaults as a result of the failure
to obtain any consents referred to in Section 6.1(b) in connection with
the transfer of the UAF Assets), (iii) a violation by UAF of any law,
rule, regulation or judicial or administrative order, or (iv) an
imposition of any encumbrance, restriction or charge on the business of
UAF or on any of its assets, except as contemplated by this Agreement.
(d) Organization, Standing and Power. UAF is a validly existing
corporation in good standing under the laws of the State of Florida. UAF
has all requisite
power and authority, corporate and other, to own and operate its
properties and assets, to lease any leased properties and assets used in
its business, and to carry on its business as it is now being conducted.
UAF is duly qualified and licensed to do business in every jurisdiction
in which such qualification or license is required. Complete and
accurate copies of UAF's articles of incorporation and bylaws, as
amended through the date hereof, have been delivered to AgriMax.
(e) Compliance with Laws and Other Instruments. UAF is in
compliance with its articles of incorporation and bylaws and with all
laws, regulations and judicial and administrative orders applicable to
it, to its assets, properties and rights, and to the conduct of its
business, the noncompliance with which would have a material adverse
effect on the financial condition or business of UAF, and UAF has not
received any notice or claim of a violation of any such law, rule,
regulation or order.
(f) Capitalization.
(i) Schedule 9.3.1(a) of the Operating Agreement contains
a complete and accurate list of the outstanding shares of capital
stock of UAF (the "Shares") showing the name of the issuer, the
certificate number, the number of Shares represented thereby, and
the name of the record holder. The authorized capital stock of
UAF is as follows: 125,000 shares of common stock, par value $1.00
per share, of which 108,959 shares are issued and outstanding.
(ii) Except as set forth on Schedule 9.3.1(b) of the
Operating Agreement or as contemplated by this Agreement, the
Shares constitute all the issued and outstanding shares of capital
stock of UAF and no person or entity has any right to acquire any
additional shares of such capital stock, any other security of UAF
or, except as set forth in this Agreement, any interest in the
Partnership. Except as set forth of Schedule 9.3.1(b) of the
Operating Agreement or as contemplated by this Agreement, there
are no outstanding proxies, subscriptions, options, warrants,
rights, puts, calls, commitments, voting trusts or plans or other
agreements of any character that restrict the transfer or voting
rights of, require UAF to redeem or otherwise acquire, restrict
the payment of dividends on, or otherwise relate to, capital stock
of UAF.
(iii) All the Shares have been duly authorized and are
validly issued, fully paid and nonassessable, and none of the
Shares have been issued in violation of any federal or state
securities or other laws, preemptive rights of any past or present
shareholder of UAF, or any stock purchase agreement or other
agreement to which UAF or any holder of shares of its capital
stock was or is a party or by which UAF or any holder of shares of
its capital stock was or is bound.
(g) Financing Documents. Schedule 9.3.3(b) of the Operating
Agreement includes true and complete copies of all loan agreements,
security agreements, mortgages, deeds of trust and other documents and
instruments (collectively, "Financing Documents") pursuant to which UAF
is indebted to others for borrowed money.
(h) Financial Statements. UAF has maintained its books of
account in accordance with generally accepted accounting principles
consistently applied. The Financial Statements have been prepared in
conformity with generally accepted accounting principles consistently
applied, and fairly present the financial position and the results of
operations of UAF at and for the year or periods indicated therein.
(i) Absence of Undisclosed Liabilities. Without limiting the
generality of Section 6.1(f) above, UAF does not have as of the Closing
Date, any material liability or obligation, whether matured, accrued,
absolute, contingent, direct or indirect, nor does there exist a set of
circumstances that could reasonably be expected to result in any such
material liability or obligation, other than as reflected in the
Financial Statements. For the purposes of this section, "material
liability or obligation" means any liability or obligation in excess of
$10,000, unless the liability or obligation is incurred in the ordinary
course of UAF's business.
(j) UAF Assets. UAF has, and pursuant to the UAF Xxxx of Sale,
Assignment, Assumption and General Conveyance will convey to the
Partnership, good title to, or valid leasehold interests in, or rights
to use all (except for $25,000 retained by UAF for general corporate
purposes) properties and assets used or held for use in the conduct of
its business and all goodwill associated therewith, subject to any
Encumbrances.
6.2 Representations and Warranties of AgriMax. AgriMax represents and
warrants to UAF and the UAF Members, as of the Closing Date, as follows:
(a) Authority; Binding Effect. AgriMax has full right, power
and authority to execute, deliver and perform this Agreement and the
related agreements referred to herein that are to be executed, delivered
and performed by AgriMax and to consummate the transactions contemplated
hereby and thereby. This Agreement is, and the related agreements
referred to herein that are to be executed and delivered by AgriMax
are, the valid and binding agreements of AgriMax enforceable against
AgriMax in accordance with their terms, except as such enforcement may
be limited by the effect of bankruptcy, reorganization, insolvency and
other similar creditors rights laws generally, and by equitable
principles regardless of whether the preceding is brought at law or in
equity. The execution, delivery and performance of this Agreement and
the related agreements by AgriMax have been duly authorized by the board
of directors and shareholders of AgriMax. No other proceedings on the
part of AgriMax's board of directors or shareholders are necessary to
authorize the execution, delivery and performance of this Agreement and
the related agreements by AgriMax.
(b) No Consents. Except for consents required pursuant to the
Sublease in connection with the succession of the Partnership to the
rights and duties of the Company under the Sublease, no consent of,
approval by, filing with, or notice to any governmental authority or
other person or entity is required for AgriMax to execute, deliver and
perform this Agreement or the related agreements referred to herein that
are to be executed, delivered and performed by AgriMax or to consummate
the transactions contemplated hereby or thereby.
(c) No Violations. Neither the execution and delivery of this
Agreement and the related agreements referred to herein that are to be
executed and delivered by AgriMax nor the consummation of the
transactions contemplated hereby and thereby will result in (i) a
violation or conflict with any provision of AgriMax's articles of
incorporation or bylaws, (ii) the breach of, or default under, any term
or provision of any contract, indebtedness, lease, encumbrance,
commitment, license, franchise, permit, authorization, or concession to
which AgriMax is a party or by which its assets are bound (other than a
default or breach resulting from failure to obtain the consent of the
lessor under the Main Lease to the extent required with respect to the
transactions contemplated by this Agreement), (iii) a violation by
AgriMax of any law, rule, regulation or judicial or administrative
order, or (iv) an imposition of any Encumbrance on the business of
AgriMax, the AgriMax Equipment or the AgriMax Intellectual Property,
except as contemplated by this Agreement.
(d) Organization, Standing and Power. AgriMax is a validly
existing corporation in good standing under the laws of the state of
Minnesota. AgriMax has all requisite power and authority, corporate and
other, to own and operate its properties and assets, to lease any leased
properties and assets used in its business, and to carry on its business
as it is now being conducted. AgriMax is duly qualified and licensed to
do business in every jurisdiction in which such qualification or license
is required.
(e) Compliance with Laws and Other Instruments. AgriMax is in
compliance with its articles of incorporation and bylaws and with all
laws, regulations and judicial and administrative orders applicable to
it, to its assets, properties and rights and to the conduct of its
business, and AgriMax has not received any notice or claim of a
violation of any such law, rule, regulation or order.
(f) Title to AgriMax Equipment. AgriMax has good and marketable
title to the AgriMax Equipment, free and clear of all Encumbrances
(other than as set forth in "Schedule 3.2(a)"), and upon execution and
delivery of the AgriMax Equipment Xxxx of Sale, AgriMax shall convey
good and marketable title to the AgriMax Equipment to the Partnership
free and clear of all Encumbrances (other than as set forth in "Schedule
3.2(a)").
(g) Title or Right to Use AgriMax Intellectual Property.
AgriMax owns or possesses the royalty free licenses or other rights to
use all AgriMax Intellectual Property. To the best of AgriMax's
knowledge, AgriMax's use of the AgriMax Intellectual Property does not
infringe on or otherwise violate any copyrights, trademarks, trademark
rights, service marks, service names, trade names, patents, patent
rights, license, trade secrets or other proprietary rights owned by any
other person or persons. There is no claim or action by any such person
pending or, to AgriMax's knowledge, threatened against AgriMax with
respect thereto. Upon execution and delivery of the AgriMax
Intellectual Property Assignment, AgriMax shall convey good and
marketable title or royalty free licenses or other rights to use the
AgriMax Intellectual Property, together with all goodwill associated
therewith, to the Partnership free and clear of all Encumbrances.
(h) AgriMax Facilities Lease Agreement. The "Main Lease" (as
defined in the Sublease) is in full force and effect, and AgriMax has
not been notified by any other party thereto of such party's intention
to terminate the Main Lease. Assuming the landlord's consent to the
succession of the Partnership to the rights and duties of the Company
under the Sublease is obtained, no event has occurred which constitutes
or, with the giving of notice or passage of time, or both, would
constitute a default by AgriMax or, to the best knowledge of AgriMax, by
any other party under the Main Lease. No dispute, suit or proceeding is
pending or, to the best knowledge of AgriMax, threatened in connection
with the Main Lease. AgriMax has provided to UAF a complete and correct
copy of the Main Lease. The AgriMax Facilities are located entirely on
the premises covered by the Main Lease and AgriMax is not a party to any
other lease for real property or similar agreement, whether written or
unwritten, relating to the AgriMax Facilities.
6.3 Representations and Warranties of UAF Members and Non-Member
Managers. Each UAF Member and each Non-Member Manager severally and not
jointly, represents and warrants to UAF and AgriMax, as of the Effective Date,
as follows:
(a) The UAF Member or Non-Member Manager has full legal capacity
to execute, deliver and perform this Agreement; and
(b) The execution, delivery and performance of this Agreement by
the UAF Member or Non-Member Manager will not conflict with any
undertaking, agreement, indenture, decree, order or judgment by which
such UAF Member or Non-Member Manager is bound, and will not violate any
law, rule or regulation applicable to such UAF Member or Non-Member
Manager.
ARTICLE VII
CLOSING
7.1 Closing. The Closing of the transactions contemplated by this
Agreement shall take place at the offices of UAF, 0000 Xxxxxxxx Xxxx, Xxxxx,
Xxxxxxx on __________, 1995. At the Closing, this Agreement and each of the
related agreements and instruments referred to herein that by the terms hereof
are to be executed and delivered at the Closing shall be executed and
delivered by the respective parties hereto and thereto.
7.2 Simultaneous Transactions. The execution of this Agreement and
each of the related agreements and instruments referred to herein that by the
terms hereof are to be executed and delivered at the Closing and the
consummation of the transactions contemplated hereby and thereby shall occur
simultaneously at or as of the Closing. The performance or tender of
performance of all matters applicable to a party under this Agreement shall be
deemed concurrent conditions and no party shall be required to perform, or
tender performance of, the obligations of such party hereunder unless,
coincident therewith, each other party from whom performance is required under
this Agreement and the related agreements and instruments referred to herein
performs or tenders performance of its obligations.
7.3 Post-Closing Actions.
(a) AgriMax shall use its best efforts to obtain any consents
from third parties required under the Sublease or the Main Lease in
connection with the succession of the Partnership to the rights and
duties of the Company under the Sublease.
(b) UAF shall, to the extent reasonably requested by the
Partnership or AgriMax, as provided in the UAF Xxxx of Sale, Assignment,
Assumption and General Conveyance, use its best efforts to obtain any
consents from third parties required in connection with the transfer of
the UAF Assets to the Partnership and shall execute any instruments or
documents necessary to evidence or reflect the transfer of the UAF
Assets to the Partnership.
ARTICLE VIII
INDEMNIFICATION BY AGRIMAX
8.1 Indemnification by AgriMax. This Agreement provides for the
contribution of the AgriMax Equipment and the AgriMax Intellectual Property to
the Partnership and is not a sale of any stock in any entity comprising
AgriMax. The Partnership is not assuming and shall not be responsible for the
payment of any liabilities or obligations of AgriMax whatsoever, except as may
be expressly set forth in this Agreement or any agreement which is an exhibit
hereto. AgriMax shall indemnify and hold harmless the Partnership, UAF, any
other partners of the Partnership, and the officers, advisors, representatives
and shareholders of UAF or any such other partner of the Partnership
(collectively, "Indemnitees") from and against any and all liabilities,
obligations, losses, damages, judgments, claims, expenses, costs and legal
fees and disbursements incurred by any of them to the extent resulting from,
or arising out of, or related to (i) the ownership, use or operation of any of
the AgriMax Equipment and the AgriMax Intellectual Property prior to May 1,
1995, or (ii) any other act or omission of AgriMax (including, without
limitation, noncompliance with any applicable bulk transfer statutes and
claims of employees and former employees of AgriMax of any kind whatsoever
regarding their employment or termination by AgriMax). If any demand, action,
suit, proceeding or investigation is commenced, as to which an Indemnitee
proposes to demand indemnification, it shall notify AgriMax with reasonable
promptness; provided, however, that any failure by an Indemnitee to notify
AgriMax shall not relieve AgriMax from its obligations hereunder so long as
its failure does not materially prejudice the rights of AgriMax. AgriMax
shall assume the defense thereof and employ counsel of its own choosing. The
Indemnitee shall have the right to employ separate counsel in any such demand,
action, suit, proceeding or investigation and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
Indemnitee unless (a) the employment thereof has been specifically authorized
in writing by AgriMax, (b) AgriMax has failed to assume the defense and employ
counsel, or (c) the main parties to any such demand, action, suit, proceeding
or investigation, include both the Indemnitee and AgriMax and Indemnitee has
been advised in writing by independent counsel that the representation of
Indemnitee and AgriMax by the same counsel would be inappropriate due to
actual or potential differences between them, in each of which cases the
reasonable fees and disbursements of counsel for Indemnitee shall be paid by
AgriMax. In such event, AgriMax shall not have the right to assume the
defense of such demand, action, suit, proceeding or investigation on behalf of
Indemnitee. AgriMax shall not be liable for any settlement of any such
demand, action, suit, proceeding or investigation effected without AgriMax's
prior written consent. AgriMax shall not, without the prior written consent
of Indemnitee, settle or compromise any such demand, action, suit, proceeding
or investigation without such Indemnitee's prior written consent, which
consent shall not be unreasonably withheld.
ARTICLE IX
GENERAL PROVISIONS
9.1 Arbitration. Any dispute between the parties concerning this
Agreement shall be settled by arbitration conducted in Atlanta, Georgia, using
the Commercial Arbitration Rules of the American Arbitration Association. The
parties shall be entitled to conduct discovery in accordance with the Federal
Rules of Civil Procedure, subject to limitation by the arbitrators to secure
just and efficient resolution of the dispute. A party substantially
prevailing in the arbitration shall also be entitled to recover such amount
for its costs and attorney fees incurred in connection with the arbitration as
shall be determined by the arbitrators. Judgment upon the arbitration award
may be entered in any court having jurisdiction. Nothing herein, however,
shall prevent either party from resort to a court of competent jurisdiction
solely to seek injunctive relief.
9.2 Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
9.3 Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally, if mailed by
registered or certified mail (return receipt requested), or if sent by
telefacsimile confirmed in writing, to the parties at the following addresses
(or at such other address for a party as shall be specified by like notice):
(a) if to UAF or the Partnership:
Universal American Flowers, Inc.
0000 Xxxxxxxx Xxxx
Xxxxx, Xxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No: (000) 000-0000
Attn: President
with a copy to:
Xxxxx & Xxxxxxx
000 X. Xxxxxx Xxxxxx
000 Xxxxxxx Xxxxxxxx
Xxxxx, Xxxxxxxx 00000-0000
Telephone No.: (000) 000-0000
Facsimile No: (000) 000-0000
Attn: Xxx Xxxxxx, III
(b) if to AgriMax:
AgriMax Floral Products, Inc.
c/o Epitope, Inc.
0000 X.X. Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No: (000) 000-0000
Attn: President
with a copy to:
Miller, Nash, Wiener, Hager & Xxxxxxx
3500 U.S. Bancorp Tower
000 X.X. Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000-0000
Telephone No.: (000) 0000-0000
Facsimile No: (000) 000-0000
Attn: Xxxxx Xxxxxxx
(c) if to the Company:
Fresche Blossoms, L.L.C.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No: (000) 000-0000
Attn: Chairman and Chief Executive Officer
with copies to:
Xxxxx & Xxxxxxx and
Miller, Nash, Wiener, Hager & Xxxxxxx
at their respective addresses listed above
(d) if to any other party, to the address of such party
last shown
on the records of UAF.
9.4 Interpretation. When a reference is made in this Agreement to
Sections or Exhibits, such reference shall be to a Section or Exhibit to this
Agreement unless otherwise indicated. The words "include," "includes" and
"including" when used herein shall be deemed in each case to be followed by
the words "without limitation." The table of contents and headings contained
in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
9.5 Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when all parties have executed a counterpart and
delivered it to the other parties. At the Closing, facsimile signatures will
be accepted, and the signing party shall promptly following the Closing
forward to the other parties originally signed counterparts.
9.6 Entire Agreement. This Agreement and the documents and
instruments and other agreements among the parties delivered pursuant hereto
constitute the entire agreement among the parties with respect to the subject
matter hereof and supersede all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof
and are not intended to confer upon any other person any rights or remedies
hereunder except as otherwise expressly provided herein.
9.7 No Transfer. This Agreement and the rights and obligations set
forth herein may not be transferred or assigned by operation of law or
otherwise without the consent of each party hereto. This Agreement is binding
upon and will inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
9.8 Severability. If any provision of this Agreement, or the
application thereof, will for any reason and to any extent be invalid or
unenforceable, the remainder of this Agreement and application of such
provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further
agree to replace such void or unenforceable provision of this Agreement with a
valid and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of the void or unenforceable provision.
9.9 Other Remedies. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party will be deemed cumulative
with and not exclusive of any other remedy conferred hereby or by law or
equity on such party, and the exercise of any one remedy will not preclude the
exercise of any other.
9.10 Further Assurances. Each party agrees to cooperate fully with the
other parties and to execute such further instruments, documents and
agreements and to give such further written assurances as may be reasonably
requested by any other party to evidence and reflect the transactions
described herein and contemplated hereby and to carry into effect the intents
and purposes of this Agreement.
9.11 Absence of Third-Party Beneficiary Rights. No provision of this
Agreement is intended, nor will be interpreted, to provide to create any third
party beneficiary rights or any other rights of any kind in any client,
customer, affiliate, stockholder, employee, partner or any other person or
entity unless specifically provided otherwise herein, and, except as so
provided, all provisions hereof will be personal solely between the parties to
this Agreement.
9.12 Mutual Drafting. This Agreement is the joint product of the
parties hereto and each provision hereof has been subject to the mutual
consultation, negotiation and agreement of such parties and shall not be
construed for or against any such parties.
9.13 Governing Law. This Agreement shall be governed in all respects,
including validity, interpretation and effect, by the laws of the State of
Delaware (without giving effect to its choice of law principles).
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
as of the date first written above.
UNIVERSAL AMERICAN FLOWERS, INC.
By: Xxxxxxx X. XxXxxxx
Name: Xxxxxxx X. XxXxxxx
Title: President
AGRIMAX FLORAL PRODUCTS, INC.
By: Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
Date: October 27, 1995
UAF, L.P.
By: UNIVERSAL AMERICAN FLOWERS,
INC., General Partner
By: Xxxxxxx X. XxXxxxx
Name: Xxxxxxx X. XxXxxxx
Title: President
FRESCHE BLOSSOMS, L.L.C.
By: Xxxxxxx X. XxXxxxx
Name: Xxxxxxx X. XxXxxxx
Title: Chairman and Chief Executive
Officer
Xxxxxxx X. XxXxxxx
XXXXXXX X. XXXXXXX
Gay X. Xxxxxx
XXXX X. XXXXXX
Xxxxxxxx X. Xxxxx
XXXXXXXX X. XXXXX
Xxxxxxx X. Xxxx
XXXXXXX X. XXXX
Xxxx X. Xxxxx, Xx.
XXXX X. XXXXX, XX.
Xxxxxxx X. Xxxxxx
XXXXXXX X. XXXXXX
Xxxx Xxxxx
XXXX XXXXX
Xxxxxxx X. Xxxxxx
XXXXXXX X. XXXXXX
Epitope, Inc., an Oregon corporation, the indirect parent corporation of
AgriMax, hereby unconditionally and irrevocably guarantees the due and
punctual payment when due of all sums which may be payable by AgriMax, and the
due and punctual performance of each and every obligation of AgriMax to be
performed, under this Agreement and under all agreements which are exhibits to
this Agreement.
EPITOPE, INC.
By: Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
Date: October 27, 1995
Exhibit 2.1
Assignment of Company Interests
ASSIGNMENT OF COMPANY INTERESTS
For good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, _____________ ("Assignor"), does hereby
assign, transfer and convey to Universal American Flowers, Inc., a
Florida corporation ("UAF"), all of Assignor's right, title and interest
in and to the interests of Assignor in the Company (the "Company
Interests"), including, without limitation, (i) any and all rights to
receive a distributive share of the income and losses of the Company
(regardless of when earned or incurred), (ii) any and all rights to
receive a distributive share of the Company's assets, (iii) any and all
rights to participate in the management and affairs of the Company (if
any), (iv) any and all rights to vote on certain matters, and (v) all
other rights of the Assignor with respect to the Company as set forth in
the Operating Agreement of the Company and applicable law, free and clear
of any and all Encumbrances. This Assignment is being executed and
delivered by Assignor pursuant to the terms of the AGREEMENT AND PLAN OF
REORGANIZATION ("Agreement") dated as of __________, 1995, among UAF, the
Company, Assignor and certain other parties named therein. All
capitalized terms used in this Assignment shall have the meanings as in
the Agreement.
Assignor agrees that Assignor shall take such additional action as
may be reasonably requested by UAF to effect the assignment and transfer
of all the Company Interests and to assist and cooperate with UAF in any
proceedings involving the Company Interests. Requested action shall be
taken at UAF's expense.
IN WITNESS WHEREOF, the undersigned has executed in and delivered
this Assignment as of the __ day of ____________, 1995.
___________________________________
(Signature)
___________________________________
(Print Name)
Exhibit 3.2(a)
AgriMax Equipment Xxxx of Sale
EQUIPMENT XXXX OF SALE
For good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, AgriMax Floral Products, Inc., a Minnesota
corporation ("AgriMax"), does hereby grant, bargain, transfer, sell,
assign, convey and deliver to UAF, L.P., a Delaware limited partnership,
all of AgriMax's right, title and interest in and to the AgriMax
Equipment free and clear of any and all Encumbrances. This Xxxx of Sale
is being executed and delivered by AgriMax pursuant to the terms of the
AGREEMENT AND PLAN OF REORGANIZATION ("Agreement") dated as of
_______________, 1995 among UAF, L.P., AgriMax, Fresche Blossoms, L.L.C.,
a Delaware limited liability company, Universal American Flowers, Inc., a
Florida corporation, and certain other persons named in the Agreement.
All capitalized terms used in this Xxxx of Sale shall have the same
meanings as in the Agreement.
EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, THIS CONVEYANCE OF
THE AGRIMAX EQUIPMENT BY AGRIMAX TO UAF, L.P. IS "AS-IS, WHERE-IS,"
WITHOUT ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY
NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS OR
WARRANTIES WITH RESPECT TO MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR VALUE).
Executed in Beaverton, Oregon, on _____________, 1995.
AGRIMAX FLORAL PRODUCTS, INC.
By: _________________________
Name: _______________________
Title: ______________________
Exhibit 3.2(b)
AgriMax Intellectual Property Assignment
INTELLECTUAL PROPERTY ASSIGNMENT
For good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, AgriMax Floral Products, Inc., a Minnesota
corporation ("AgriMax"), does hereby assign and transfer to UAF, L.P.,
all of AgriMax's right, title and interest in and to the AgriMax
Intellectual Property (as defined below) free and clear of any and all
Encumbrances (as defined below), together with all goodwill associated
therewith. This Assignment is being executed and delivered by AgriMax
pursuant to the terms of the AGREEMENT AND PLAN OF REORGANIZATION
("Agreement") dated as of __________, 1995, among UAF, L.P., AgriMax,
Fresche Blossoms, L.L.C., a Delaware limited liability company, Universal
American Flowers, Inc., a Florida corporation, and certain other persons
named in the Agreement. For purposes of this Assignment, the following
terms shall have the following meanings:
(i) "AgriMax Intellectual Property" means the trademarks
Fresche Blossoms(R) (U.S. Reg. No. - 1,815,566; Reg. Date - January
4, 1994) and Everguard(R) (U.S. Reg. No. - 1,792,277; Reg. Date -
September 14, 1993) and Fresche Blossoms Express(TM), the formula
for the Everguard preservative, any AgriMax trade secrets existing
on May 1, 1995 and all permits, licenses and franchises used by
AgriMax in its packaged fresh flower and floral preservative
distribution business as of May 1, 1995, to the extent
transferable); and
(ii) "Encumbrance" means any mortgage, claim, charge, lien,
encumbrance, easement, limitation, restriction, commitment, or
security interest, except statutory liens securing taxes,
assessments, and payments not yet due, or liens incurred in the
ordinary course of business (including liens in favor of mechanics
or materialmen).
EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, THIS ASSIGNMENT OF
THE AGRIMAX INTELLECTUAL PROPERTY BY AGRIMAX TO UAF, L.P. IS "AS-IS,
WHERE-IS," WITHOUT ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
OF ANY NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS
OR WARRANTIES WITH RESPECT TO MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR VALUE).
Agrimax agrees that it shall take such additional action as may be
reasonably requested by UAF, L.P. to effect the assignment and transfer
of all the AgriMax Intellectual Property, to cause the same to be made of
record where required, and to assist and cooperate with UAF, L.P. in any
proceedings involving the AgriMax Intellectual Property. Requested
action shall be taken at UAF, L.P.'s expense.
Executed in Beaverton, Oregon, on ___________, 1995.
AGRIMAX FLORAL PRODUCTS, INC.
By: __________________________
Name: ________________________
Title: _______________________
Exhibit 3.3
UAF Xxxx of Sale, Assignment, Assumption
and General Conveyance
XXXX OF SALE, ASSIGNMENT, ASSUMPTION
AND GENERAL CONVEYANCE AGREEMENT
THIS XXXX OF SALE, ASSIGNMENT, ASSUMPTION AND GENERAL CONVEYANCE
AGREEMENT ("Agreement") dated as of __________, 1995 is entered into by
and between Universal American Flowers, Inc., a Florida corporation (the
"Corporation"), and UAF, L.P. a Delaware limited partnership (the
"Partnership").
W I T N E S S E T H:
WHEREAS, the Corporation and the Partnership are parties to an
Agreement and Plan of Reorganization dated as of __________, 1995 (the
"Reorganization Agreement"); and
WHEREAS, pursuant to the Reorganization Agreement the Corporation
has agreed to sell, assign and convey all of its assets to the
Partnership and the Partnership has agreed to assume all of the
liabilities of the Corporation;
NOW, THEREFORE, in consideration of the premises contained herein
and in the Reorganization Agreement and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
the parties agree as follows:
1. Sale, Assignment and Conveyance of Assets. Subject to the
terms and conditions herein set forth, the Corporation hereby sells,
transfers, conveys, assigns and delivers to the Partnership to have and
to hold forever, and the Partnership hereby accepts, all of the
Corporation's right, title and interest in and to any and all of the
assets of the Corporation of whatever kind or nature, real, personal,
mixed, tangible, intangible, contingent or vested, as the same shall
exist on the date hereof, including, but without limiting the generality
of the foregoing, all machines and machinery, tools, appliances,
fixtures, vehicles and equipment; all inventories of raw materials, work
in process, finished products and stock in trade; all furniture,
fixtures, furnishings, office equipment and supplies; all investments and
securities; the business of the Corporation as a going concern together
with the good will attaching thereto; all letters patent, patent rights,
inventions, processes, formulae, trademarks, trade secrets and
applications thereof; all contracts, claims, notes, accounts receivable,
rights and choses in action; all moneys, cash (except as specifically
indicated below), bank credits or deposits, all duties and taxes
recoverable; all policies of insurance of whatsoever nature (life, group
life, fire, public liability, business interruption, and every other
type); all fidelity, contract and other bonds; all memberships, agencies
and permits, all deferred charges, advance payments, prepaid items,
advance receipts, and other deferred and prepaid assets and credits of
all kinds; all equitable interests in property whether standing in the
name of the Corporation or in the name of any other person, firm or
corporation for the use and benefit of the Corporation; all copyrights,
trade names, trade brands, drawings and engineering plans, customer lists
and directory listings; all contracts for the purchase of raw materials
and supplies, for the sale of goods, for service or employment whether
professional or non-professional, technical or non-technical; all
restrictive covenants and obligations of present and former officers and
employees of the Corporation and of individuals and corporations from
whom the Corporation acquired property; all agreements with sales agents,
representatives and dealers; all other contracts, arrangements or
agreements of the Corporation of any kind whatsoever; all books of
account, files, papers and records; and any and all other things of value
(all of the foregoing being collectively referred to herein as the "UAF
Assets"); provided, however, the properties and assets transferred hereby
shall not include (i) the corporate minute books and stock transfer
records of the Corporation and (ii) $25,000 in cash to be retained by the
Corporation for general corporate purposes.
2. Assumption of Liabilities and Obligations. Subject to the
terms and conditions herein set forth, the Partnership hereby assumes and
agrees to perform, observe, satisfy and fulfill all of the duties,
liabilities and obligations of the Corporation, whether direct or
indirect, contingent or otherwise, now existing or hereafter arising,
under, pursuant to or in connection with all contracts, agreements,
arrangements, debts, covenants, accounts, indemnities, claims, charges,
taxes, suits, actions, damages, executions, judgments, assessments or
other liabilities or obligations of any nature whatsoever of or affecting
the Corporation in existence as of the date hereof or arising from or
relating to actions or omissions of the Corporation prior to the date
hereof.
3. Power of Attorney. The Corporation hereby constitutes and
appoints the Partnership the true and lawful attorney of the Corporation,
with full power of substitution, in the name of the Corporation or
otherwise, to demand and receive any and all of the UAF Assets, and any
part thereof, and from time to time to institute and prosecute, for the
benefit of the Partnership, any and all proceedings at law, in equity or
otherwise, which the Partnership may deem proper for the collection or
reduction to possession of any of the UAF Assets or for the collection
and enforcement of any claim or right of any kind hereby sold, conveyed,
transferred or assigned, or intended so to have been, and to do all acts
and things in relation to the UAF Assets which the Partnership shall deem
advisable.
4. Further Assurances. The parties agree to execute and deliver
all documents and instruments, and to perform or cause to be performed
such further acts or things, as may be reasonably necessary to carry out
the intended assignments, assumptions and other transactions contemplated
by this Agreement. In furtherance of the foregoing, the Corporation
agrees, to the extent reasonably requested by the Partnership or AgriMax
Floral Products, Inc., to obtain any consents from third parties required
in connection with the conveyance of the UAF Assets, to execute any
instruments or documents necessary to evidence or reflect the conveyance
of the UAF Assets to the Partnership, to cause the same to be made of
record, and to assist and cooperate with the Partnership in any
proceedings involving the UAF Assets or the liabilities and obligations
assumed hereunder by the Partnership. Any requested action shall be at
the expense of the Partnership.
5. Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN
THE REORGANIZATION AGREEMENT, THIS CONVEYANCE OF THE UAF ASSETS BY THE
CORPORATION TO THE PARTNERSHIP IS "AS-IS, WHERE-IS," WITHOUT ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY NATURE
WHATSOEVER (INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS OR WARRANTIES
WITH RESPECT TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
VALUE). THE PARTNERSHIP ACCEPTS THE UAF ASSETS SUBJECT TO ANY AND ALL
MORTGAGES, CLAIMS, CHARGES, LIENS, EASEMENTS, LIMITATIONS, RESTRICTIONS,
COMMITMENTS, SECURITY INTERESTS AND OTHER ENCUMBRANCES OF ANY NATURE
WHATSOEVER.
6. Amendment. This Agreement shall not be amended, except
pursuant to a writing executed by all of the parties hereto.
7. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of
which together shall constitute a single instrument.
8. Entire Agreement. This Agreement and the Reorganization
Agreement set forth the entire understanding and agreement between the
parties as to the matters covered herein and supersedes and replaces any
prior understanding, agreement or statement (written or oral) of intent.
Except as expressly provided for herein, no provision of this Agreement
shall be construed to confer any rights, or remedies on any person other
than the Corporation or the Partnership.
9. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
10. Governing Law. This Agreement shall be construed in
accordance with, and governed by, the laws of the State of Delaware.
IN WITNESS WHEREOF, this Agreement has been executed and delivered
as of the date first written above.
UNIVERSAL AMERICAN FLOWERS, INC.,
a Florida corporation
By: ________________________________
Name: ______________________________
Title:_______________________________
UAF, L.P.,
a Delaware limited partnership
By: Universal American Flowers, Inc.,
General Partner
By: ________________________________
Name: ______________________________
Title:_______________________________
Exhibit 5.1
Restricted Stock Purchase Agreement
RESTRICTED STOCK PURCHASE AGREEMENT
THIS RESTRICTED STOCK PURCHASE AGREEMENT ("Agreement") is made and
entered into effective as of the ____ day of _______, 1995 by and between
Universal American Flowers, Inc., a Florida corporation (the "Company")
and _________________ (the "Purchaser").
WITNESSETH:
WHEREAS, Purchaser is an employee of UAF, L.P., a limited
partnership organized under the laws of Delaware (the "Employer");
WHEREAS, the Company is the general partner of the Employer and has
significant interests in the growth and financial success of the
Employer;
WHEREAS, Purchaser's continued employment by Employer is considered
by the Company to be important for the growth and financial success of
Employer; and
WHEREAS, in order to encourage the continued participation of
Purchaser in the business of Employer, the Company is willing to sell to
Purchaser and Purchaser desires to purchase shares of the common stock,
par value $1.00 per share ("Common Stock"), of the Company.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained in this Agreement, the parties agree as follows:
1. Purchase of Shares by Purchaser.
1.1 Purchase of Shares; Consideration. The Company hereby
sells to Purchaser and Purchaser hereby purchases from the Company
3,959 shares of the Company's Common Stock (the "Shares") in
consideration of the payment by Purchaser to the Company,
simultaneously with the execution and delivery hereof, of $100, an
amount which, together with services previously performed for
Employer by Employee have been determined by the Board of Directors
of the Company to constitute adequate consideration for the
issuance of the Shares within the meaning of Section 621(3) of the
Florida Business Corporation Act.
1.2 Delivery of Certificates. The certificates
representing the Shares shall be held in escrow as provided in
Section hereof.
2. Restrictions on Transfer of Shares by Purchaser. For so long
as the Shares remain subject to the Purchase Option (as defined in
Section 3.2), Purchaser shall not sell, assign, donate, transfer, pledge,
hypothecate or otherwise dispose of (collectively, "Transfer"), or enter
into any agreement for the Transfer of, any of the Shares, without the
express prior written consent of the Company in its sole discretion.
3. Repurchase Option of the Company.
3.1 Trigger Event. Each of the following events shall
constitute a "Trigger Event":
(a) the termination of employment of Purchaser by
Employer, or any parent or subsidiary of Employer, in a full-
time capacity, for any reason, with or without cause
including, without limitation, involuntary termination,
permanent disability or death of the Purchaser;
(b) Purchaser becomes a debtor under the United
States Bankruptcy Code (voluntarily or involuntarily);
(c) Purchaser makes a general assignment for the
benefit of creditors or permits any of the Shares to be
attached or levied upon or to become subject to judicial sale
or execution of judgment; or
(d) Purchaser would, but for this Agreement, be
required to involuntarily Transfer any of the Shares as a
result of any other event.
3.2 Purchase Option. Upon the occurrence of a Trigger
Event, Purchaser shall be deemed, immediately before such Trigger
Event occurs, to have made an offer to the Company to repurchase
all of the Shares, and the Company shall have the right and option
("Purchase Option") to repurchase all of such Shares as set forth
in this Section 3 at an aggregate purchase price of $100 (the
"Option Purchase Price").
3.3 Exercise of Purchase Option. Within thirty (30) days
after the date of any termination of employment of Purchaser as
provided in Section 3.1 (a), the Company shall notify Purchaser as
to whether the Company wishes to purchase all of the Shares
pursuant to the Purchase Option. Immediately upon the occurrence
of a Trigger Event other than termination of employment as
described in Section 3.1(a), Purchaser (or Purchaser's heirs at law
or legal representatives) shall deliver written notice to the
Secretary of the Company of the occurrence of such Trigger Event.
Within twenty (20) days following receipt of such notice from
Purchaser (or Purchaser's heirs at law or legal representatives),
the Company shall notify Purchaser (or Purchaser's heirs at law or
legal representatives) whether the Company wishes to purchase all
of the Shares pursuant to the Purchase Option. If the Company
elects to exercise the Purchase Option, the closing of the purchase
and the payment of the purchase price shall be as provided in
Section 4.
3.4 Effect of Non-Exercise of Purchase Option. If the
Purchase Option becomes exercisable as a result of the occurrence
of a Trigger Event described in Section 3.1 and the Purchase Option
is not exercised by the Company within the time period allotted in
Section 3.3 after proper notice from Purchaser (or Purchaser's
heirs at law or legal representatives), the Purchase Option shall
expire.
3.5 Expiration of Purchase Option. If not earlier
terminated pursuant to the provisions of this Agreement, the
Purchase Option shall expire at 5:00 p.m., Eastern Time, on the
tenth anniversary of the date hereof.
4. Closing. The closing of any purchase of the Shares by the
Company pursuant to this Agreement shall be held at the principal place
of business of the Company on a date determined by the Company but not
more than fifteen (15) days following the date upon which the Company
shall have exercised the Purchase Option, or at such other place and such
other time as the parties may agree. At any such closing, certificates
representing the Shares being purchased, duly endorsed, free and clear of
all liens and encumbrances, and ready for transfer, shall be delivered to
the Company in exchange for the Option Purchase Price.
5. Effect of Certain Corporate Transactions. In the event of any
of a merger, consolidation, reorganization or acquisition in which the
Company is not the surviving entity, the Purchase Option shall remain in
effect and, to the extent applicable, this Agreement and the Purchase
Option hereunder shall be deemed to be assigned to the surviving or
successor entity, unless prior to or in connection with such Transaction
the Board of Directors of the Company shall determine that the Purchase
Option shall lapse.
6. Capital Changes and Adjustments. If, from time to time
during the term of this Agreement:
(i) there is any stock dividend, stock split,
dividend of property other than cash, reclassification or
other change in the character or amount of any of the
outstanding securities of the Company; or
(ii) there is any reorganization, consolidation or
merger of the Company with another corporation or other
entity;
then, except as otherwise expressly provided in Section 5, in such
event, any and all new, substituted or additional securities, or
other property, other than cash, to which Purchaser is entitled by
reason of Purchaser's ownership of the Shares shall be immediately
subject to this Agreement, shall be deposited with the Escrow Agent
and shall be included in the word "Shares" for all purposes with
the same and force and effect as the Shares then subject to the
Purchase Option. While the aggregate Option Purchase Price shall
remain the same after each such event, the applicable Option
Purchase Price per Share payable upon exercise of the Purchase
Option shall be appropriately adjusted.
7. Shareholders Agreement.
7.1 Shareholders Agreement. The Company and/or its holders
of fifty percent (50%) or more of the Company's Common Stock are
parties to any shareholder agreement or other agreement affecting
generally dispositions of common stock by shareholders, (a
"Shareholders Agreement") then, if requested by the Company,
Purchaser shall be bound by and subject to the terms of the
Shareholders Agreement as a shareholder thereunder.
7.2 Transfer of Shares to Third Parties. In the event that
any or all of the Shares are proposed to be transferred to any
party other than to the Company pursuant to the Purchase Option,
under any circumstances whatsoever (including, without limitation,
any Transfer, whether voluntary or involuntary, resulting from a
Trigger Event pursuant to which the Company elected not to exercise
the Purchase Option), then any such Transfer shall be conducted in
accordance with the provisions of any Shareholders Agreement then
in effect as if Purchaser were then a party thereto (including,
without limitation, all rights of first refusal for the benefit of
other shareholders and other provisions thereof) and any transferee
shall acquire the Shares subject to the Shareholders Agreement and
shall become a party thereto and be bound by the terms thereof.
8. Tax Matters.
8.1 Valuation of Shares. Purchaser understands that the
Shares have been valued by the Board of Directors for the purpose
of sale pursuant to this Agreement, and that the Company believes
such valuation represents a fair attempt at reaching an accurate
appraisal of their worth. Purchaser also understands, however,
that the Company can give no assurances that such price is in fact
the fair market value of the shares and that it is possible that
the Internal Revenue Service would successfully assert that the
value of the Shares on the date of purchase is substantially
greater than so determined. If the Internal Revenue Service were
to succeed in a determination that the Shares had value greater
than the purchase price, the additional value could constitute
ordinary income to Purchaser as of the date of its receipt.
Additional taxes (and interest) due could be payable by Purchaser,
and there is no provision for the Company to reimburse Purchaser
for that tax liability. Purchaser assumes all responsibility for
such potential tax liability.
8.2 Section 83(b) Election. Purchaser understands that
Section 83 of the Internal Revenue Code of 1986, as amended (the
"Code"), taxes as ordinary income the difference between the amount
paid for the Shares and the fair market value of the Shares as of
the date any restrictions on the Shares lapse. In this context,
"restriction" means the right of the Company to repurchase the
Shares pursuant to the Purchase Option. Purchaser understands that
Purchaser may elect to be taxed at the time the Shares are
purchased rather than when the Purchase Option expires by filing an
election under Section 83(b) of the Code with the Internal Revenue
Service within thirty (30) days after the date of purchase. Even
if the fair market value of the Shares equals the amount paid for
the Shares (and thus no tax is payable), the election must be made
to avoid adverse tax consequences in the future. Purchaser
understands that failure to make this filing in a timely manner
will result in the recognition of ordinary income by Purchaser,
when the Purchase Option lapses, on the amount, if any, by which
the fair market value of the Shares at the time such restrictions
lapse exceeds the purchase price of the Shares.
PURCHASER ACKNOWLEDGES THAT IT IS PURCHASER'S SOLE
RESPONSIBILITY AND NOT THE COMPANY'S TO TIMELY FILE THE ELECTION
UNDER SECTION 83(b) EVEN IF PURCHASER REQUESTS THE COMPANY OR ITS
REPRESENTATIVES TO MAKE THIS FILING ON PURCHASER'S BEHALF.
8.3 Notice of Tax Election. If Purchaser makes any tax
election relating to the tax treatment of the Shares under the
Code, at the time of such election Purchaser shall promptly notify
the Company of such election.
9. Escrow. As security for the faithful performance of the
terms of this Agreement and to insure the availability for delivery of
the Shares upon exercise of the Purchase Option, Purchaser hereby
delivers for deposit with the Secretary of the Company, or such other
person designated by the Company, as escrow agent in this transaction
("Escrow Agent"), two stock assignments duly endorsed (with date and
number of shares blank) together with the certificate or certificates
evidencing the Shares. Such documents are to be held by the Escrow Agent
and delivered by the Escrow Agent pursuant to the following instructions
of the Company and Purchaser:
(a) In the event the Company exercises the Purchase Option,
Purchaser and the Company hereby irrevocably authorize and direct
the Escrow Agent to execute the transaction contemplated by any
notice of exercise of the Purchase Option in accordance with the
terms of such notice and this Agreement.
(b) In connection with such transaction the Escrow Agent is
directed to (i) to date the stock assignment necessary for the
transfer in question, (ii) to fill in the number of shares being
transferred, and (iii) to deliver such assignment, together with
the certificate evidencing the Shares to be transferred, to the
Company against the delivery of the Option Purchase Price.
(c) Purchaser irrevocably authorizes the Company to deposit
with the Escrow Agent any certificates evidencing the Shares to be
held by the Escrow Agent hereunder and any additions and
substitutions to said Shares as described in this Agreement.
Purchaser irrevocably constitutes and appoints the Escrow Agent as
Purchaser's attorney-in-fact and agent for the term of this escrow
to execute all documents appropriate to make such securities
negotiable and to complete any transaction herein contemplated.
(d) Upon the expiration or termination of the Purchase
Option as to the Shares as provided in this Agreement, the Escrow
Agent will deliver to Purchaser the certificate or certificates
representing such Shares and the escrow shall thereafter terminate
as to such Shares.
(e) If at the time of termination of this escrow the Escrow
Agent has possession of any documents, securities, or other
property belonging to Purchaser, the Escrow Agent shall deliver
such property to Purchaser, and be discharged of all further
obligations hereunder.
(f) The responsibilities of the Escrow Agent hereunder
shall terminate if the Secretary of the Company shall cease to be
the Secretary or if the Escrow Agent shall resign by written notice
to each party. In the event of any such termination, the Company
shall appoint a successor Escrow Agent. In the absence of such
appointment, the President of the Company shall be the Escrow
Agent.
(g) It is understood and agreed that should any dispute
arise with respect to the delivery, ownership, or right of
possession of the Shares held by the Escrow Agent hereunder, the
Escrow Agent is authorized to retain without liability to anyone
all or any part of said Shares until such disputes shall have been
settled either by mutual written agreement or by a court order,
decree, or judgment, if applicable, but the Escrow Agent shall be
under no duty whatsoever to institute or defend such proceedings.
(h) By signing this Agreement, the Escrow Agent becomes a
party hereto only for the purpose of executing the instructions set
forth in this Section 10 and does not otherwise become a party to
this Agreement.
10. Securities Law Compliance.
10.1 Absence of Registration. Purchaser is aware that the
Shares have not been registered under the Securities Act of 1933,
as amended (the "Act"), or applicable state securities laws and
have been issued to Purchaser in reliance upon exemptions from the
registration requirements of the Act and applicable state
securities laws.
10.2 Investment Representations. In connection with the
Purchaser's acquisition of the Shares from the Company pursuant to
this Agreement, Purchaser hereby represents and warrants to the
Company as follows:
(a) Investment Intent. Purchaser is aware of and
familiar with the Company's business affairs and financial
condition and has acquired sufficient information about the
Company to reach a knowledgeable and informed decision to
acquire the Shares. Purchaser is acquiring the Shares for
investment for his own account, not for resale, without any
intention of or view toward or for participating, directly or
indirectly, in a distribution of the Shares or any portion
thereof.
(b) Representatives. Purchaser has consulted with
such professional advisors (the "Representatives"), if any,
as Purchaser has seen fit in connection with this proposed
investment.
(c) Experience. Purchaser and Purchaser's
Representatives, if any, have such knowledge and experience
in financial and business matters that Purchaser is capable
of evaluating the merits and risks of investment in the
Shares.
(d) Risks. Purchaser understands that an investment
in the Company is speculative, that any possible profits
therefrom are uncertain, and that Purchaser must bear the
economic risks of the investment in the Company for an
indefinite period of time. Purchaser is able to bear these
economic risks and to hold the Shares for an indefinite
period.
(e) Information. Purchaser and Purchaser's
Representatives, if any, have received all information and
data with respect to the Company which Purchaser or
Purchaser's Representatives have requested and have deemed
relevant in connection with an evaluation of the merits and
risks of this investment in the Company, and do not desire
any further information or data with respect to the Company
or the purchase of the Shares.
(f) Legends. Purchaser understands and agrees that
(i) the legends set forth in Section 12 will be placed on the
certificate(s) evidencing the Shares and on, as applicable,
certificate(s) issued to transferees; (ii) the stock records
of the Company will be noted with respect to such
restrictions; and (iii) the Company will not be under any
obligation to register the Shares or to comply with any
exemption available for resale of the Shares without
registration.
(g) Restrictions on Resale. Purchaser understands
that, under relevant securities law requirements, the Shares
must be held indefinitely unless they are subsequently
registered under the Act or an exemption from such
registration is available. The Company is under no
obligation to so register the Shares. Purchaser understands
that Rule 144 of the Securities and Exchange Commission
permits limited public resale of securities acquired in a
non-public offering subject to satisfaction of certain
conditions. Purchaser understands that the Company may not
be satisfying, and is not obligated to satisfy, any
requirement of Rule 144 at such time as Purchaser might wish
to sell any of the Shares, and, if so, Purchaser might be
precluded from selling any of the Shares under Rule 144.
10.3 Further Limitations on Disposition. Without in any way
limiting the representations set forth above, Purchaser further agrees
that Purchaser shall in no event make any disposition of any portion of
the Shares unless and until:
(i)(A) there is in effect a registration
statement under the Act covering such proposed
disposition and such disposition is made in accordance
with said registration statement; or, (B)(1) Purchaser
shall have notified the Company of the proposed
disposition and shall have furnished the Company with a
detailed statement of the circumstances surrounding the
proposed disposition, (2) Purchaser shall have
furnished the Company with an opinion of the
Purchaser's counsel to the effect that such disposition
will not require registration of such shares under the
Act and (3) such opinion of the Purchaser's counsel
shall have been concurred in by counsel for the Company
and the Company shall have advised Purchaser of such
concurrence; and
(ii) there has been compliance with all
requirements of this Agreement.
10.4 Disclosures Pursuant to State Securities Laws.
Purchaser is aware of and understands the following:
(i) IN MAKING AN INVESTMENT DECISION PURCHASER MUST RELY ON
PURCHASER'S OWN EXAMINATION OF THE ISSUER AND THE TERMS OF THE
OFFERING, INCLUDING THE MERITS AND RISKS INVOLVED. THE SHARES HAVE
NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES COMMISSION
OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES
HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS
DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
(ii) THE SHARES ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD
EXCEPT AS PERMITTED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION
OR EXEMPTION THEREFROM. PURCHASER SHOULD BE AWARE THAT PURCHASER
WILL BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR
AN INDEFINITE PERIOD OF TIME.
(iii) UNDER THE FLORIDA SECURITIES AND INVESTOR PROTECTION
ACT Section 517.061(11)(a)(5), SUBSCRIPTIONS FOR THE SHARES BY EACH
PERSON WHO IS A RESIDENT OF THE STATE OF FLORIDA (A "FLORIDA
PURCHASER") MAY (IF THE REQUIREMENTS OF SUCH ACT ARE SATISFIED) BE
VOIDABLE BY EACH SUCH FLORIDA PURCHASER FOR A PERIOD EXPIRING ON
THE THIRD DAY AFTER THE FLORIDA PURCHASER'S TENDER OF CONSIDERATION
FOR THE SHARES. If a Florida Purchaser exercises the right to void
his or her purchase, the purchase price paid shall be returned to
the Florida Purchaser by the Company and such Florida Purchaser
shall thereafter cease to have any interest in the Shares.
11. Legends on Shares. Each certificate representing the Shares
shall have conspicuously printed on it the following legends:
(i) "THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF THE VARIOUS STATES,
AND HAVE BEEN ISSUED AND SOLD PURSUANT TO AN EXEMPTION FROM THE
ACT, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED BY THE
HOLDER THEREOF AT ANY TIME EXCEPT (1) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT FILED UNDER THE ACT COVERING THESE SHARES,
OR (2) UPON DELIVERY TO THE CORPORATION OF AN OPINION OF COUNSEL
SATISFACTORY TO THE CORPORATION THAT THESE SHARES MAY BE
TRANSFERRED WITHOUT REGISTRATION."
(ii) "THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO CERTAIN RESTRICTIONS UPON TRANSFER AND RIGHTS OF REPURCHASE AS
SET FORTH IN AN AGREEMENT BETWEEN THE CORPORATION AND THE
REGISTERED HOLDER OR HIS PREDECESSOR IN INTEREST, A COPY OF WHICH
IS ON FILE AT THE PRINCIPAL OFFICE OF THE CORPORATION."
(iii) Any legend required to be placed thereon by any state
securities commissioner or the applicable blue sky laws of any
state.
12. Improper Disposition of Shares. If any of the Shares shall
be disposed of otherwise than in accordance with the terms and conditions
of this Agreement, such disposition shall be of no force, effect or
validity. Alternatively, at the option of the Company, instead of
treating such transfer as a nullity, the Company shall have the right,
exercisable at any time prior to the expiration of six (6) months after
the Company received written or other notice of such disposition, to
purchase such Shares as if a notice of offer had been timely given as
provided in Section 3. In enforcing such rights, the Company may hold
and refuse to transfer any stock, or any certificate therefor, tendered
to it for transfer, in addition to, and without prejudice to, any and all
other rights or remedies which may be available to the Company.
13. Employment at Will. The parties acknowledge that Purchaser's
employment relationship with Employer is at the will of either party,
unless otherwise agreed in writing, and that nothing in this Agreement
shall affect in any manner whatsoever the right or power of Purchaser or
Employer, or a parent or subsidiary of Employer, to terminate Purchaser's
employment.
14. Rights as a Shareholder. Subject to the provisions and
limitations hereof, Purchaser shall be entitled to exercise all rights
and privileges of a shareholder of the Company with respect to the
Shares.
15. Miscellaneous Provisions.
15.1 Additional Actions. The parties will execute such
further instruments and take such further action as may reasonably
be necessary to carry out the intent of this Agreement.
15.2 Notices. Any notice required or permitted hereunder
shall be given in writing and shall be deemed effectively given
upon personal delivery or upon deposit in the United States Post
Office, by regular or certified mail with postage and fees prepaid,
addressed, if to Purchaser, at Purchaser's address set forth on the
signature page hereto and, if to the Company, at the address of its
principal corporate offices (Attention: President) or at such
other address as such party may designate by ten days' advance
written notice to the other party.
15.3 Assignment. Rights and obligations under this Agreement
may not be assigned without the written consent of each of the
parties hereto, except that the Company may assign its rights and
delegate its duties under this Agreement in connection with any
certain Transaction as provided in Section 5 without the prior
consent of Purchaser. Subject to the foregoing, this Agreement
shall inure to the benefit of and be binding upon heirs, executors,
administrators, successors and assigns of the parties.
15.4 No Waiver. No waiver of any breach or condition of
this Agreement shall be deemed a waiver of any other or subsequent
breach or condition, whether of like or different nature.
15.5 Cancellation of Shares. If the Company shall make
available, at the time and place and in the amount and form
provided in this Agreement, the consideration for the Shares to be
repurchased in accordance with the provisions of this Agreement,
then from and after such time, the person from whom such Shares are
to be repurchased shall no longer have any rights as a holder of
such Shares (other than the right to receive payment of such
consideration in accordance with this Agreement), and such Shares
shall be deemed purchased in accordance with the applicable
provisions hereof and the Company shall be deemed the owner and
holder of such shares, whether or not the certificates therefor
have been delivered as required by this Agreement.
15.6 Entire Agreement. This Agreement constitutes the
entire contract between the parties hereto with regard to the
subject matter hereof.
15.7 Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Florida,
as such laws are applied to contracts entered into and performed in
such State.
15.8 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but
all of which together shall constitute one and the same instrument.
15.9 Severability. If any provision of this Agreement is
held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions shall nevertheless continue
in full force and effect without being impaired in any way and
shall be construed in accordance with the purpose and terms of this
Agreement.
15.10 Amendments. This Agreement may not be amended,
modified or supplemented except by a writing executed by both
parties.
15.11 Headings. The section headings contained in this
Agreement are included for convenience of reference only and are
not intended by the parties to be a part of or to affect the
meaning or interpretation of this Agreement.
15.12 Jurisdiction, Venue and Waiver of Jury Trial. Any
suit, action or proceeding with respect to this Agreement shall be
brought exclusively in the Florida state courts of competent
jurisdiction in Hillsborough, County, Florida or in the United
States District Court in which the City of Tampa is located. ALL
PARTIES HEREBY IRREVOCABLY WAIVE ANY OBJECTIONS WHICH THEY MAY NOW
OR HEREAFTER HAVE TO THE PERSONAL JURISDICTION OR VENUE OF ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT BROUGHT IN SUCH COURT AND HEREBY FURTHER IRREVOCABLY
WAIVE ANY CLAIM THAT SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. THE PARTIES
HEREBY FURTHER IRREVOCABLY WAIVE ANY RIGHT TO A JURY TRIAL IN ANY
ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
15.13 Specific Performance and Injunctive Relief. The
parties hereto declare that it may be impossible to measure in
money the damages which will accrue to a party hereto or to their
heirs, personal representatives, or assigns by reason of a failure
to perform any of the obligations under this Agreement and agree
that the terms of this Agreement shall be specifically enforceable
and that injunctive relief shall be available. If any party hereto
or his heirs, personal representatives or assigns institutes any
action or proceeding to specifically enforce the provisions hereof,
any person against whom such action or proceeding is brought hereby
waives the claim or defense therein that such party or such
personal representative has an adequate remedy at law, and such
person shall not urge in any such action or proceeding the claim or
defense that such remedy at law exists.
15.14 Remedies Cumulative. All remedies available to the
parties or herein expressly conferred shall be deemed cumulative
with and not exclusive of any other remedies expressly conferred
hereby or available to any party, and the exercise of any one
remedy shall not preclude the exercise of any other.
15.15 Attorneys' Fees. The prevailing party in any legal
action arising out of this Agreement shall be entitled, in addition
to any other rights and remedies such party may have, to
reimbursement for its expenses, including costs and reasonable
attorneys' fees.
16. Pledge of Shares to Bank. The parties acknowledge that the
Purchaser has pledged the Shares to Sun Bank, National Association
("Bank") pursuant to a Pledge Agreement by and among Purchaser, Bank and
certain other parties named therein (the "Pledge Agreement"). Anything
to the contrary in this Agreement notwithstanding, the parties agree that
the Shares shall be subject in all respects to the Pledge Agreement and
that the rights of the parties pursuant to this Agreement shall be
subordinate to the rights of Bank under the Pledge Agreement. The
parties further agree not to exercise any right pursuant to this
Agreement in a manner that would violate the provisions of the Pledge
Agreement. In furtherance of the foregoing, certificates evidencing the
Shares shall be held by Bank pursuant to the Pledge Agreement and only
upon release by Bank shall be deposited with the Escrow Agent pursuant to
this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
PURCHASER: COMPANY:
____________________________ UNIVERSAL AMERICAN FLOWERS,
INC.
(Signature)
By: _______________________
_____________________________
(Print Name) Name: _____________________
___________________________
Title:_____________________
____________________________
_____________________________
_____________________________
(Address)
WITH RESPECT TO SECTION 9 ONLY:
ESCROW AGENT
____________________________
(Signature)
____________________________
(Print Name)
CONSENT
The undersigned spouse of Purchaser agrees that the spouse's interest in
the Shares subject to this Agreement shall be irrevocably bound by this
Agreement and further understands and agrees that any community property
interest, if any, shall be similarly bound by this Agreement.
Date: _________________________ ________________________
Spouse of Purchaser
Schedule 1.3
List of Additional AgriMax Equipment
1. Xxxxxxx systems furniture.
2. AccPac accounting software.
3. AST portable computer.
4. Telemagic marketing software.
5. Illinois Instruments headspace analyzer (Model 3600) 6. Gage
marketing stands.
Schedule 3.2(a)
Encumbrances Pertaining to AgriMax Equipment
1. Interest of Northstate International Trucks in 1994 Mitsubishi truck
evidenced by Retail Installment Contract dated August 24, 1993.
