EXHIBIT 2.2
STOCK PURCHASE AGREEMENT
BY AND BETWEEN
BRYNWOOD PARTNERS III L.P.,
AS THE PURCHASER,
AND
XXXX GROUP, INC.,
AS THE SELLER
Dated: June 8, 1998
EXECUTION COPY
STOCK PURCHASE AGREEMENT dated as of the 8th the day of June,
1998 (this "Agreement"), between BRYNWOOD PARTNERS III L.P., a Delaware limited
partnership (the "Purchaser") and XXXX GROUP, INC., a Delaware corporation (the
"Seller").
RECITALS:
WHEREAS, the Seller is the beneficial and record owner of
3,569,755 shares of common stock, par value $.01 per share, of Lincoln Snacks
Company (the "Company", such shares being the "Company Shares"), and desires to
sell the Company Shares to the Purchaser in accordance with the terms hereof;
WHEREAS, the Purchaser desires to purchase the Company Shares
from the Seller in accordance with the terms hereof;
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants, representations and agreements contained in this Agreement,
the parties hereto agree as follows:
ARTICLE I.
PURCHASE AND SALE OF THE SHARES
SECTION 1.1. Transfer of Shares; Consideration.
(a) Upon the terms and subject to the conditions hereof,
on the date hereof the Seller is selling, assigning and delivering to the
Purchaser the Company Shares free and clear of all options, pledges, security
interests, liens, mortgages, claims, debts, charges, voting agreements, voting
trusts or other encumbrances or restrictions on transfer of any kind whatsoever
(collectively, the "Encumbrances").
(b) Upon the terms and subject to the conditions hereof,
on the date hereof the Purchaser is purchasing and accepting the Company Shares
and paying and delivering the Purchase Price (as hereafter defined).
SECTION 1.2. The Closing. The transfer of the Company Shares and
the consummation of the transactions contemplated by this Agreement (the
"Closing") is occurring simultaneously with the execution and delivery of this
Agreement by the parties hereto.
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(a) At the Closing, the Seller is delivering to the
Purchaser:
(i) the Company Shares, properly endorsed for
transfer or accompanied by duly executed stock powers, in either case in blank
or in the name of the Purchaser; and
(ii) an opinion of Xxxxxxxx & Xxxxxxxx LLP,
counsel to the Seller, in substantially the form attached hereto as Exhibit A.
(b) At the Closing, the Purchaser is delivering to the
Seller:
(i) an amount equal to $2.00 per Company Share for
a total aggregate amount of $7,139,510 (the "Purchase Price"), payable as
follows: (A) $2,639,510 by a secured promissory note of the Purchaser in the
form attached hereto as Exhibit B (the "Promissory Note"), and (B) $4,500,000 by
wire transfer of same day funds to an account designated by the Seller; and
(ii) an opinion of Xxxxxxxx & Xxxxxxxx, counsel to
the Purchaser, in substantially the form attached hereto as Exhibit C.
SECTION 1.3. Seller Release. Effective as of the Closing Date,
the Seller hereby forever releases and discharges the Company from any and all
claims of such Seller against the Company or liabilities or obligations of the
Company to such Seller as a result of such Seller's having been a stockholder of
the Company, whether known or unknown, past or present.
SECTION 1.4. Payment of Expenses. Each party shall be obligated
to pay for any and all fees and expenses of its counsel and accountants and all
other costs and expenses incurred, directly or indirectly, by or on behalf of
such party in the preparation, negotiation, execution and delivery of this
Agreement and the consummation of the transactions contemplated herein.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Purchaser, as of
the date hereof (except as to any representation or warranty which specifically
relates to another date) as follows:
SECTION 2.1. Share Ownership. The Company Shares have been duly
authorized, validly issued and are fully paid and nonassessable, and are owned
of record and beneficially by the Seller, free and clear of all Encumbrances.
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SECTION 2.2. Company Reports.
(a) In connection with the representations and warranties
contained in this Section 2.2, Seller has informed the Purchaser (and Purchaser
hereby acknowledges) that: (i) no officer, director or representative of Seller
serves as an officer or director of the Company, (ii) Seller is not familiar
with the operations of the Company, (iii) Seller does not independently verify
financial and other information received from or concerning the Company, and
(iv) in connection with such representations and warranties Seller has made no
independent investigation of any factual matter.
(b) Subject to the foregoing subsection of this Section
2.2, to the best knowledge of Seller, the Company's Annual Report on Form 10-K
for the fiscal year ended June 30, 1997 and its Quarterly Reports on Form 10-Q
for the periods ended September 30, 1997, December 31, 1997 and March 31, 1998
(collectively, the "Company Reports") did not as of the respective dates thereof
contain any untrue statement of a material fact, nor omit to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and without independent investigation, Seller has no knowledge of
any material adverse developments affecting the Company since March 31, 1998.
For purposes of this Section 2.2, the term "knowledge" is confined to the actual
knowledge of officers of the Seller.
(c) To the knowledge of Seller, since March 31, 1998, the
business of the Company has been conducted in the ordinary course, consistent
with past practice.
(d) Except for the representations and warranties made in
this Section 2.2, Seller makes and has made no representations or warranties
concerning the Company Shares or the business, financial condition, operations
or prospects of the Company. Without limiting the generality of the foregoing,
Seller makes no representations or warranties as to the existence or effect of
any employment, severance or other agreements that may require payments to be
made as a result, directly or indirectly, of the transactions contemplated by
this Agreement.
SECTION 2.3. Organization and Authorization. The Seller is a
corporation validly existing and in good standing under the laws of its
jurisdiction of organization. The Seller has the full power, authority and legal
right to execute, deliver and carry out the terms and conditions of this
Agreement and to sell the Company Shares to the Purchaser, and has taken all
necessary corporate action to authorize the execution, delivery and performance
of this Agreement. This Agreement has been duly and validly executed and
delivered by the Seller, and constitutes the legal, valid and binding obligation
of the Seller, enforceable against the Seller in accordance with its terms.
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SECTION 2.4. No Violation. The execution of this Agreement by the
Seller does not, and the performance by the Seller of its obligations hereunder
will not constitute a violation of, or conflict with or result in a default
under: (i) any contract, commitment, agreement, understanding, arrangement or
restriction of any kind, whether written or oral, to which the Seller is a party
or by which the Seller is bound, (ii) any judgment, decree or order applicable
to the Seller, or (iii) the Seller's certificate of incorporation or by-laws.
Neither the execution and delivery of this Agreement nor the performance by the
Seller of its obligations hereunder will violate any provision of law applicable
to the Seller.
SECTION 2.5. Consents and Approvals. No filing or registration
with, no notice to and no permit, authorization, consent or approval of any
third party or any public or governmental body or authority is necessary for the
consummation by the Seller of the transactions contemplated herein.
SECTION 2.6. Brokers' Fees and Commissions. The Seller has not
employed any investment banker, broker, finder or intermediary, and no fee or
other commission is owed by Seller to any third party, in connection with the
transactions contemplated herein.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Seller and
the Company, as of the date hereof (except as to any representation or warranty
which specifically relates to an earlier date) and as of the Closing Date, as
follows:
SECTION 3.1. Organization and Authorization. The Purchaser is a
limited partnership validly existing and in good standing under the laws of its
jurisdiction of organization. The Purchaser has the full power, authority and
legal right to execute, deliver and carry out the terms and conditions of this
Agreement and to purchase the Company Shares from the Seller, and has taken all
necessary action to authorize the execution, delivery and performance of this
Agreement. This Agreement and the Promissory Note have been duly and validly
executed and delivered by the Purchaser, and constitute the legal, valid and
binding obligation of the Purchaser, enforceable against the Purchaser in
accordance with its terms.
SECTION 3.2. No Violation. The execution of this Agreement by the
Purchaser does not, and the performance by the Purchaser of its obligations
hereunder (including the payment of the Promissory Note in accordance with its
terms) will not constitute a violation of, or conflict with or result in a
default under: (i) any contract, commitment, agreement, understanding,
arrangement or restriction of any kind, whether
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written or oral, to which the Purchaser is a party or by which the Purchaser or
its properties or assets is bound, (ii) any judgment, decree or order applicable
to the Purchaser, or (iii) the Purchaser's articles of partnership or agreement
of limited partnership. Neither the execution and delivery of this Agreement nor
the performance by the Purchaser of its obligations hereunder will violate any
provision of law applicable to the Purchaser.
SECTION 3.3. Consents and Approvals. No filing or registration
with, no notice to and no permit, authorization, consent or approval of any
third party or any public or governmental body or authority is necessary for the
consummation by the Purchaser of the transactions contemplated herein.
SECTION 3.4. Acquisition of Stock. Purchaser is an accredited
investor (as that term is defined in the Securities Act of 1933, as amended (the
"Act"), and the regulations thereunder), and Purchaser has such knowledge and
experience in financial and business matters as is required for evaluating the
merits and risks of an investment in the Company Shares. Purchaser is aware that
the Company Shares have not been registered under the Act and agrees that such
Company Shares shall not be sold, hypothecated or otherwise transferred in the
absence of such registration unless such contemplated transfer is exempt from
the registration requirements of the Act. The undersigned hereby acknowledges
that the certificate representing the Company Shares may be legended to reflect
such restrictions. The Purchaser is acquiring the Company Shares for its own
account and not with a view to the distribution or resale thereof and with a
present intention of holding the Company Shares for purposes of investment.
SECTION 3.5. Brokers' Fees and Commissions. The Purchaser has not
employed any investment banker, broker, finder or intermediary, and such no fee
or other commission is owed by Purchaser to any third party, in connection with
the transactions contemplated herein.
ARTICLE IV.
COVENANTS
SECTION 4.1. All Reasonable Efforts. Subject to the terms and
conditions herein provided, each of the parties hereto agrees to use all
reasonable efforts to take, or cause to be taken, all action, and to do, or
cause to be done as promptly as practicable, all things necessary, proper and
advisable under applicable laws and regulations to consummate and make effective
the transactions contemplated by this agreement. If at any time after the
Closing any further action is necessary or desirable to carry out the purposes
of this Agreement, including, without limitation, the execution of additional
instruments, the proper officers and directors of the Purchaser, and the Seller
shall take all such necessary action.
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SECTION 4.2. Public Announcements. The Purchaser and the Seller
will consult with each other and will mutually agree upon the content and timing
of any press release or other public statements with respect to the transactions
contemplated by this Agreement and shall not issue any such press release or
make any such public statement prior to such consultation and agreement, except
as may be required by applicable law or based upon the advice of counsel that
such disclosure would be prudent under applicable securities laws.
ARTICLE V.
SURVIVAL AND INDEMNIFICATION
SECTION 5.1. Survival. All representations, warranties, covenants
and agreements contained in this Agreement, and in any certificate, schedule,
document or other writing delivered pursuant hereto or in connection with the
transactions contemplated herein shall be in all cases deemed to have been
relied upon by the parties hereto, and shall survive the Closing; provided that
any such representations, warranties, covenants and agreements shall be fully
effective and enforceable only for a period of twelve months after the Closing,
and shall thereafter be of no further force or effect, except that the
representations and warranties set forth in Section 2.1 (Share Ownership) shall
survive indefinitely. The representations, warranties, covenants and agreements
contained in this Agreement or any certificate, schedule, document or other
writing delivered pursuant hereto shall not be affected by any investigation,
verification or examination by any party hereto or by any person acting on
behalf of any such party.
SECTION 5.2. Indemnification of the Purchaser. From and after the
Closing, the Seller agrees to indemnify, defend and save the Purchaser and its
directors, officers, employees, owners, agents and affiliates and their
successors and assigns or heirs and personal representatives, as the case may be
(each a "Purchaser Indemnified Party"), forever harmless from and against, and
to promptly pay to a Purchaser Indemnified Party or reimburse a Purchaser
Indemnified Party for any and all losses, damages, expenses (including, without
limitation, court costs, amounts paid in settlement, judgments, reasonable
attorneys' fees or other expenses for investigating and defending, including,
without limitation, those arising out of the enforcement of this Agreement),
suits, actions, claims, deficiencies, liabilities or obligations (collectively,
the "Losses") sustained or incurred by such Purchaser Indemnified Party relating
to, caused by or resulting from any misrepresentation or breach of warranty, or
failure to fulfill or satisfy any covenant or agreement made by the Seller
contained herein or in any certificate, schedule, document or other writing
delivered by the Seller pursuant hereto or any covenant or agreement made by the
Seller herein or in any certificate, schedule, document or other writing
delivered by the Seller pursuant hereto.
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SECTION 5.3. Indemnification of the Seller. From and after the
Closing, the Purchaser agrees to indemnify, defend and save the Seller and its
respective legal representatives, heirs, successors, assigns, agents and
affiliates (each, a "Seller Indemnified Party") forever harmless from and
against, and to promptly pay to a Seller Indemnified Party or reimburse a Seller
Indemnified Party for, any and all Losses sustained or incurred by such Seller
Indemnified Party relating to, caused by or resulting from any misrepresentation
or breach of warranty, or failure to fulfill or satisfy any covenant or
agreement made by the Purchaser contained herein or in any certificate,
schedule, document or other writing delivered by the Purchaser pursuant hereto,
or any covenant or agreement made by the Purchaser in any certificate, schedule,
document or other writing delivered by the Purchaser pursuant hereto.
SECTION 5.4. Notice of Claims. In the case of a claim for
indemnification under Section 5.2 or Section 5.3 hereof, upon determination by a
Purchaser Indemnified Party or a Seller Indemnified Party, as the case may be,
that it has a claim for indemnification, the Indemnified Party shall deliver
notice of such claim to the Indemnifying Party, setting forth in reasonable
detail the basis of such claim for indemnification (each, an "Indemnification
Notice"). [Upon the Indemnification Notice having been given to the Indemnifying
Party, the Indemnifying Party shall have thirty (30) days in which to notify the
Indemnified Party in writing (the "Dispute Notice") that the amount of the claim
for indemnification is in dispute, setting forth in reasonable detail the basis
of such dispute. In the event that a Dispute Notice is not given to the
Indemnified Party within the required thirty (30) day period the Indemnifying
Party shall be obligated to pay to the Indemnified Party the amount set forth in
the Indemnification Notice within sixty (60) days after the date that the
Indemnification Notice had been given to the Indemnifying Party.]
In the event that a Dispute Notice is timely given to an
Indemnified Party, the parties hereto shall have thirty (30) days to resolve any
such dispute. In the event that such dispute is not resolved by such parties
within such period, the parties shall have the right to pursue all available
legal remedies to resolve such dispute.
ARTICLE VI.
MISCELLANEOUS PROVISIONS
SECTION 6.1. Amendment and Modification; Waiver of Compliance.
The Purchaser, on the one hand, or the Seller, on the other hand, will not be
deemed as a consequence of any act, delay, failure, omission, forbearance or
other indulgence granted from time to time by such party: (i) to have waived, or
to be estopped from exercising, any of its rights or remedies under this
Agreement; or (ii) to have modified, changed, amended, terminated, rescinded, or
superseded any of the terms of this Agreement, unless such
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waiver, modification, amendment, change, termination, rescission, or suppression
is set forth in writing and signed by the party to be bound thereby. No single
or partial exercise by the Purchaser, on the one hand, or the Seller, on the
other hand, of any right or remedy will preclude any other right or remedy, and
a waiver expressly made in writing on one occasion will be effective only in
that specific instance and only for the precise purpose for which given, and
will not be construed as a consent to or a waiver of any right or remedy on any
future occasion or a waiver of any right or remedy against any other party.
SECTION 6.2. Parties in Interest. This Agreement shall be binding
upon and inure solely to the benefit of each party hereto, and nothing in this
Agreement, expressed or implied, is intended to confer upon any other person any
rights or remedies of any nature whatsoever under or by reason of this
Agreement.
SECTION 6.3. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given upon the earlier to
occur of delivery thereof if by hand or upon receipt if sent by mail (registered
or certified mail, postage prepaid, return receipt requested) or on the second
next business day after deposit if sent by a recognized overnight delivery
service or upon transmission if sent by telecopy or facsimile transmission (in
each case with receipt verified) as follows:
(a) If to the Purchaser:
Brynwood Partners III L.P.
Two Soundview Avenue
Greenwich, CT 06830
Attention: Xxxxxxx X. Xxxxxxx, Xx. and
Xxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxxxx X. Xxxxxxxx, Esq.
Xxxxxxxx & Xxxxxxxx
Four Stamford Plaza
000 Xxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) if to the Seller:
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Xxxx Group, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxx, Xx. and
Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx X. Xxxxxxxx, Esq.
Xxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
; and provided that each of the parties hereto shall promptly notify the other
parties hereto of any change of address, which address shall become such party's
address for the purposes of this Section 8.4.
SECTION 6.4. Governing Law; Consent to Jurisdiction. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without regard to the conflicts-of-laws principles thereof.
Each of the Company and the Seller hereby irrevocably (a) submits to the
jurisdiction of, and agrees that any action, suit or other proceeding shall be
brought in, the courts of, or the Federal Court sitting in, the State of New
York for the purpose of any such suit, action or other proceeding arising out of
or based upon this Agreement or the transactions contemplated herein, (b) waives
to the extent not prohibited by applicable law, rule or regulation, and agrees
not to assert, by way of motion, as a defense or otherwise, in any such action,
suit or other proceeding any claim that any such person is not subject
personally to the jurisdiction of the aforementioned courts, that its respective
property is exempt or immune from attachment or execution, that any such suit,
action or other proceeding brought in one of the aforementioned courts is
brought in an inconvenient forum, that the venue of any such suit, action or
other proceeding brought in one of the aforementioned courts is improper, or
that this Agreement, or the transactions contemplated herein may not be enforced
in or by such court, and (c) consents to service of process in any such suit,
action or other proceeding by registered or certified mail.
SECTION 6.5. Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same agreement.
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SECTION 6.6. Headings. The article and section headings contained
in this Agreement are solely for the purpose of reference, are not part of the
agreement or understanding of the parties hereto and shall not affect in any way
the meaning or interpretation of this Agreement.
SECTION 6.7. Entire Agreement. This Agreement and the other
documents and instruments referred to herein, and the other agreements included
in or contemplated by the exhibits hereto (the "Other Agreements") embody the
entire agreement and understanding of the parties hereto in respect of the
subject matter contained herein or therein. There are no agreements,
representations, warranties or covenants other than those expressly set forth or
referred to herein or therein. This Agreement and the Other Agreements supersede
all prior agreements and understandings between the parties hereto, whether
written or oral, express or implied, with respect to such subject matter herein
and therein.
SECTION 6.8. Assignment. This Agreement shall not be assigned by
operation of law or otherwise. Subject to the foregoing, this Agreement will be
binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors and permitted assigns.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed on its behalf by its duly authorized officers or
representatives, as the case may be, all as of the day and year first above
written.
BRYNWOOD PARTNERS III L.P.
By BRYNWOOD MANAGEMENT III L.P.
Its General Partner
________________________________________
Xxxxxxx X. Xxxxxxx, Xx.
A General Partner of
Brynwood Management III X.X.
XXXX GROUP, INC.
By:_____________________________________
