EXHIBIT 10.39
EXECUTION COPY
STOCK PURCHASE AGREEMENT
AMONG
ASHEVILLE PACKING COMPANY, INC.,
XXXXXXXX X. XXXXXX,
XXXXX X. XXXXXX,
XXXXX XXXXXX XXXXXX,
AND
GABY HOLDINGS II LLC
NOVEMBER 28, 2001
TABLE OF CONTENTS
SECTION PAGE
------- ----
1. Purchase and Sale of the Common Stock........................................ 1
1.1 Sale of the Common Stock............................................ 1
1.2 Obligations of the Parties on the Date Hereof....................... 1
2. Representations, Warranties and Agreements of the Sellers.................... 2
2.1 Authority........................................................... 2
2.2 Execution and Delivery.............................................. 2
2.3 Nonviolation........................................................ 2
2.4 Actions............................................................. 2
2.5 No Liens............................................................ 3
2.6 No Brokers or Finders............................................... 3
3. Representations, Warranties and Agreements of the LLC........................ 3
3.1 Authority........................................................... 3
3.2 Execution and Delivery.............................................. 3
3.3 No Brokers or Finders............................................... 3
4. Miscellaneous................................................................ 3
4.1 Only Recourse....................................................... 3
4.2 Assignment.......................................................... 4
4.3 Amendment; Waiver................................................... 4
4.4 Governing Law....................................................... 4
4.5 Notices............................................................. 4
4.6 Integration......................................................... 5
4.7 Severability........................................................ 5
4.8 Descriptive Headings................................................ 5
4.9 Counterparts........................................................ 5
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COMMON STOCK
PURCHASE AGREEMENT
This Common Stock Purchase Agreement (this "Agreement") is made as of
the 28th day of November, 2001 among Asheville Packing Company, Inc., a North
Carolina corporation ("APC"), Xxxxxxxx X. Xxxxxx ("CHC"), Xxxxx X. Xxxxxx
("REC"), Xxxxx Xxxxxx Xxxxxx ("LBC" and together with APC, CHC and REC, the
"Sellers"), Gaby Holdings II LLC, a Delaware limited liability company (the
"LLC").
RECITALS:
WHEREAS, pursuant to the terms of a certain Real Estate
Agreement entered on the date hereof between Sellers and Momentum Food Service,
Inc. ("MFS"), Sellers sold to MFS real property (the "Real Property") in
exchange for 800,000 shares of the common stock of Floridino's International
Holdings Inc. (the "Common Stock").
WHEREAS, as an inducement to Sellers to enter into this
Agreement, MFS is entering into a separate Guaranty Agreement (the "Guaranty
Agreement") with Sellers in which it is guarantying the payment obligations of
LLC under this Agreement with a mortgage in favor of the Sellers of the Real
Property.
WHEREAS, each Seller wishes to sell, and the LLC wishes to
purchase from each Seller, their Common Stock which in the aggregate represents
100% of the Common Stock on the terms and conditions provided herein.
NOW, THEREFORE, in consideration of the premises and of other good and
valuable consideration, receipt of which is acknowledge, it is hereby agreed as
follows:
1. Purchase and Sale of the Common Stock
1.1 Sale of the Common Stock.
Each Seller sells and transfers to LLC, on the date hereof,
their shares of Common Stock (which in the aggregate constitute 100% of the
Common Stock) free and clear of all liens, claims, pledges, charges, agreements,
and encumbrances of any kind whatsoever ("Liens"). In consideration of the
transfer of the Common Stock to LLC and in reliance on the representations,
warranties and undertakings of the Sellers herein contained, the LLC shall pay
to Sellers, by check or wire transfer, the aggregate amount of $1,600,000 (the
"Purchase Price") to be payable as follows: (i) $200,000 on the date hereof and
(ii) the balance, in seven equal, consecutive and bi-monthly installments in the
amount of $200,000 each, commencing on January 28, 2002.
LLC shall pay interest at the rate of 4% per annum in respect
of the unpaid balance of the Purchase Price, which interest will be payable
quarterly in arrears. LLC shall have the right at any time, or from time to
time, to prepay, in whole or in part, the Purchase Price with interest accrued
to the date of prepayment, without the express written consent of the Sellers
1.2 Obligations of the Parties on the Date Hereof. On the
date hereof the LLC shall pay to the Sellers the amount of $200,000 and each
Seller shall deliver to the LLC stock certificate(s) issued in the name of LLC,
representing the Common Stock. The Common Stock shall be transferred by Sellers
free of Liens of any kind whatsoever.
2. Representations. Warranties and Agreements of the Sellers. The
Sellers, jointly and severally, hereby represent and warrant to, and agree with,
the LLC, as follows:
2.1 Authority.
Each Seller has the legal authority to execute, deliver and perform the
terms and provisions of this Agreement and has taken all necessary legal actions
to authorize the execution, delivery or performance of this Agreement and the
transactions contemplated herein.
2.2 Execution and Delivery.
This Agreement, when executed by the Sellers and countersigned by the
LLC, will constitute Sellers' legal, valid and binding obligations in accordance
with the terms hereof, except as enforceability may be limited by applicable
bankruptcy, liquidation, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights or general equity principles.
2.3 Nonviolation.
(a) Neither the execution, delivery or
performance of this Agreement or the consummation of the transactions herein
contemplated nor compliance with the terms and provisions hereof will (i)
contravene (a) any requirement of law to which any of the Sellers is subject,
including the securities laws of any jurisdiction or the rules or regulations of
any governmental entity or self regulatory body nor (b) any judgment, decree,
franchise, order or demand applicable to any of the Sellers (i) conflict or be
inconsistent with or result in any breach of the terms, covenants, conditions or
provisions of, or constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any Lien upon any of their
properties or assets pursuant to the terms of any indenture, mortgage, deed of
trust agreement or other instrument to which any of the Sellers is a party or
bound or to which it may be subject.
(b) The Sellers are not in default with respect
to any applicable statute, rules, writ, injunction decree, order or regulation
of any governmental authority having jurisdiction over them which is likely to
adversely affect their ability to perform their obligations hereunder and
entering into this Agreement will not violate any of them.
2.4 Actions.
Subject to the terms and conditions of this Agreement each of the
Sellers will take, or cause to be taken all reasonable actions, and do, or cause
to be done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated by
this Agreement.
2.5 No Liens. (i) Sellers are the record and beneficial
owner of the Common Stock which is free and clear from any Liens and it shall
deliver to the LLC, certificates
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representing the Common Stock; and (ii) there is not outstanding any security,
option, warrant, right, agreement, understanding or commitment of any kind
entitling any person or entity to acquire any of the Common Stock
2.6 No Brokers or Finders. None of the Sellers has
entered into or will enter into any agreement pursuant to which the LLC will be
liable, as a result of the transactions contemplated by this Agreement, for any
claim of any person for any commission, fee or other compensation as finder or
broker.
3. Representations, Warranties and Agreements of the LLC. The LLC,
hereby represents and warrants to, and agrees with, each of the Sellers as
follows:
3.1 Authority.
The LLC has the legal authority to execute, deliver and perform the
terms and provisions of this Agreement and has taken all necessary legal actions
to authorize the execution, delivery or performance of this Agreement and the
transactions contemplated herein.
3.2 Execution and Delivery. This Agreement, when executed
by the LLC and countersigned by the Seller, will constitute LLC's legal, valid
and binding obligations in accordance with the terms hereof, except as
enforceability may be limited by applicable bankruptcy, liquidation, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights or
general equity principles.
3.3 No Brokers or Finders. LLC has not entered into or
will not enter into any agreement pursuant to which the LLC will be liable, as a
result of the transactions contemplated by this Agreement, for any claim of any
person for any commission, fee or other compensation as finder or broker.
4. Miscellaneous.
4.1 Only Recourse. It is expressly acknowledged by the
Sellers that the obligation of LLC is non recourse (as to itself or the Common
Stock) and the only recourse of the Sellers in the event of the non compliance
of any of the obligations of LLC under this Agreement (a "Default") is to
foreclose on the Real Estate, mortgaged in favor of Sellers as provided in the
mortgage attached hereto as Exhibit A; provided that no action shall be
commenced by Sellers prior given 15 days notice to LLC and MFS of the Default,
and such action can only be commenced then if the Default has not been cured.
4.2 Assignment. This Agreement and all the provisions
hereof shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns. Any assignees or successors
shall take any such assignment(s) subject to all obligations of the assigning or
original party and subject to any and all defenses. Nothing herein shall relieve
an assigning party of its obligations under this Agreement.
4.3 Amendment: Waiver. Any term, covenant, agreement or
condition of this Agreement may be amended, and compliance therewith may be
waived (either generally or in a particular circumstance and either
retroactively or prospectively), by one or more substantially
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concurrent written instruments signed by the Sellers and LLC. Any amendment or
waiver effected in accordance with this paragraph shall be binding upon each
Seller and the LLC.
4.4 Governing Law This agreement shall be governed by and
construed and enforced in accordance with, the laws of the State of North
Carolina, without regard to conflicts of law principles. Any disputes with
respect to the interpretation of this Agreement or the rights and obligations of
the parties hereto shall be exclusively brought in the U.S. District Court for
the Western District of North Carolina or, if such Court lacks subject matter
jurisdiction, in the court of general jurisdiction in Asheville, North Carolina.
Each of the parties waives any right to object to the jurisdiction or venue of
either of such Courts or to claim that such Courts are an inconvenient forum
4.5 Notices. All notices and other communications
provided for herein shall be dated and in writing and shall be deemed to have
been duly given (x) on the date of delivery, if delivered personally or by
telecopier, receipt confirmed, (y) on the second following business day, if
delivered by a recognized overnight courier service, or (z) seven days after
mailing, if sent by registered or certified mail, return receipt requested,
postage prepaid, in each case, to the party to whom it is directed at the
following address (or at such other address as any party hereto shall hereafter
specify by notice in writing to the other parties hereto):
(i) If to the LLC, to it at the following address:
Gaby Holdings II LLC
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Tel: (000)000-0000
Fax: (000)000-0000
Attention: Xxxxx X. Xxxxx, Esq.
with a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Tel: (000)000-0000
Fax: (000)000-0000
Attention: Xxxxx X. Xxxxx, Esq.
(ii) If to any Sellers, to it at the address set forth
below its name on the signature page hereto.
4.6 Integration. This Agreement and the documents
referred to herein or delivered pursuant hereto or pursuant to such documents,
including all exhibits and schedules, contain the entire understanding of the
parties with respect to their subject matter and supersede all prior agreements
and understandings between the parties with respect to their subject matter.
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4.7 Severability. Each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be prohibited or invalid under
applicable law, such provision will be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of this Agreement.
4.8 Descriptive Headings. The section and other headings
contained in this Agreement are for convenience of reference only and shall not
affect the meaning or interpretation of this Agreement.
4.9 Counterparts. This Agreement may be executed in two
or more counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which together shall be deemed to be one and
the same agreement.
* * * *
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
LLC:
GABY HOLDINGS II LLC
BY:-------------------------------------
Name:
Title:
SELLERS:
ASHEVILLE PACKING COMPANY, INC..
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
Address: 000 Xxxxx Xxxxx Xxxx
Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Tel.: 000.000.0000
Fax: 000.000.0000
With a copy to:
Xxxxxxx, Best, Xxxxx and XxXxxxxxx, P.A.
XX Xxx 0000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Tel.: 000.000.0000
Fax: 000.000.0000
/s/ XXXXXXXX X. XXXXXX:
----------------------------------------------
XXXXXXXX X. XXXXXX:
Address: 000 Xxxxx Xxxxx Xxxx
Xxxxx, XX 00000
Tel.: 000.000.0000
Fax: 000.000.0000
With a copy to:
Xxxxxxx, Best, Xxxxx and XxXxxxxxx, P.A.
XX Xxx 0000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Tel.: 000.000.0000
Fax: 000.000.0000
/s/ XXXXX X. XXXXXX
----------------------------------------------
XXXXX X. XXXXXX
Address: 000 Xxxxx Xxxxx Xxxx
Xxxxx, XX 00000
Tel.: 000.000.0000
Fax: 000.000.0000
With a copy to:
Xxxxxxx, Best, Xxxxx and XxXxxxxxx, P.A.
XX Xxx 0000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Tel.: 000.000.0000
Fax: 000.000.0000
/s/ Xxxxx Xxxxxx Xxxxxx
-----------------------------------------------------
XXXXX XXXXXX XXXXXX
By /s/ Xxxxxxxx X. Xxxxxx
Address: 000 Xxxxx Xxxxx Xxxx
Xxxxx, XX 00000
Tel.: 000.000.0000
Fax: 000.000.0000
With a copy to:
Xxxxxxx, Best, Xxxxx and XxXxxxxxx, P.A.
XX Xxx 0000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Tel.: 000.000.0000
Fax: 000.000.0000
EXHIBIT LIST
Exhibit A Mortgage
