EXECUTION COPY
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "AGREEMENT") dated as of November 26, 2002,
by and among ANGOSTURA LIMITED, a company organized under the laws of Trinidad &
Tobago ("BUYER"), and A. XXXXXXX XXXXXXXX, XX. ("SELLER"). Buyer and Seller are
referred to collectively herein as the "PARTIES" and each, individually, as a
"PARTY".
WHEREAS, Seller owns 595,985 shares of common stock, par value $0.01 per
share (the "COMPANY STOCK"), of Xxxxxxxxx International, Inc., a Delaware
corporation ("COMPANY").
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to purchase
from Seller, the Company Stock, upon the terms and subject to the conditions set
forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties, and
covenants herein contained, the Parties agree as follows.
1. PURCHASE AND SALE OF COMPANY STOCK. On and subject to the terms and
conditions of this Agreement, Buyer agrees to purchase from Seller, and Seller
agrees to sell to Buyer, on January 31, 2003 or on such other date as shall be
mutually agreed upon in writing by the Parties (in either case, the "CLOSING
DATE"), all of the Company Stock for an aggregate purchase price of US$7,200,000
in cash (the "PURCHASE PRICE"), payable in full at the Closing (as hereafter
defined) by wire transfer to such account or accounts at such bank or banks as
shall be designated by Seller in writing not less than two business days prior
to the Closing Date or by delivery of immediately available funds in United
States Dollars in such other form as the Parties may mutually agree.
2. CLOSING. If all conditions to closing are satisfied or waived on the
Closing Date, the closing of the purchase and sale of the Company Stock shall
occur at the offices of Xxxx, Cook, Riggs, Mehr & Xxxxxx, P.A. located at 0000
Xxxxxxxxx Xxxxxxxxx, XX, Xxxx Xxxxx, XX 00000 at 10:00 a.m. local time (or at
such other place and/or time as the Parties may mutually agree) on the Closing
Date (the "CLOSING"). At the Closing, (i) Seller will deliver to Buyer the
Company Stock in accordance with Section 6(a) below, and (ii) Buyer will deliver
to Seller the Purchase Price in accordance with Section 1 above.
3. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller represents and warrants
to Buyer that the statements contained in this Section 3 are true as of the date
of this Agreement and will be true as of the Closing Date (as though made then
and as though the Closing Date were substituted for the date of this Agreement
throughout this Section 3):
(i) AUTHORIZATION OF TRANSACTION. Seller has full power and authority,
and has sufficient legal capacity, to execute and deliver this Agreement and to
perform his obligations
hereunder. This Agreement has been duly and validly executed and delivered by
Seller, and constitutes the valid and legally binding obligation of Seller,
enforceable against him in accordance with its terms and conditions.
(ii) CONSENTS. Seller is not required give any notice to, make any
filing, application or registration with, or obtain any authorization, consent,
order, or approval of, or any waiver from any governmental agency or any other
individual, partnership, corporation, limited liability company, association,
joint stock company, trust, joint venture, unincorporated organization or any
other business entity (a "PERSON") in order to execute and deliver this
Agreement or to consummate the transactions contemplated hereby, except for such
notices, filings, applications, registrations, authorizations, consents, orders,
approvals and waivers (if any) as have been obtained and except for such filings
as Seller may be required to make under Section 16 of the Securities Exchange
Act of 1934, as amended (the "SECURITIES EXCHANGE ACT").
(iii) NONCONTRAVENTION. Neither the execution and the delivery by
Seller of this Agreement, nor the consummation by Seller of the transactions
contemplated hereby, will (A) violate any law, rule, injunction, or judgment of
any governmental agency or court to which Seller is subject, (B) conflict with,
result in a breach of, or constitute a default under any agreement, contract,
lease, license, instrument, or other arrangement to which Seller is a party or
by which he is bound or to which any of his assets is subject, or (C) result in
the imposition or creation of any mortgage, pledge, lien, encumbrance, charge,
security interest or other restriction of any kind ("LIEN") upon or with respect
to the Company Stock, other than any Liens created by, imposed upon or arising
with respect to Buyer or any of Buyer's property.
(iv) COMPANY STOCK. Seller holds of record and is the sole legal and
beneficial owner of and has good title to the Company Stock, free and clear of
any Liens. Seller is not a party to any voting trust, proxy, or other agreement
or understanding with respect to the voting of any capital stock of Company. At
the Closing, Seller will convey to Buyer (and Buyer will acquire) good and
marketable title to the Company Stock, free and clear of all Liens, other than
any Liens created by, imposed upon or arising with respect to Buyer or any of
Buyer's property.
(v) NO RELIANCE. Seller (A) is a sophisticated investor with respect
to the sale of the Company Stock and has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of selling the Company Stock in accordance with this Agreement, (B) has
adequate information concerning the business and financial condition of the
Company, the markets within which the Company operates, and the Company's
prospects in those markets, in order to make an informed decision regarding the
sale of the Company Stock, and (C) has independently and without reliance upon
Buyer, and based on such information as Seller has deemed appropriate, made his
own analysis and decision to enter into this Agreement. Seller acknowledges that
Buyer has not given him any investment advice or opinion on whether the sale of
the Company Stock is prudent.
(vi) SELLER EXCLUDED INFORMATION. Seller acknowledges that (i) Buyer
currently may have, or later may come into possession of, information with
respect to the Company Stock or the Company that is not known to Seller and that
may be material to a decision to sell the Company Stock ("SELLER EXCLUDED
INFORMATION"), (ii) Seller has determined to sell the Company
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Stock notwithstanding its lack of knowledge of Seller Excluded Information, and
(iii) Buyer shall have no liability to Seller, and Seller hereby waives and
releases any rights or claims that it might have against Buyer and waives and
releases any duties that Buyer may owe to Seller, whether under applicable
securities laws or otherwise, with respect to the nondisclosure of Seller
Excluded Information in connection with the transactions contemplated hereby.
Seller agrees to bear all risk of an increase in the value or market price of
the Company Stock after the date hereof and the loss of an economic opportunity
by reason of being bound to this Agreement, regardless of the reason for such
increase (including, without limitation, those resulting from Seller Excluded
Information or the actions of Buyer).
4. BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer represents and warrants to
Seller that the statements contained in this Section 4 are true as of the date
of this Agreement and will be true as of the Closing Date (as though made then
and as though the Closing Date were substituted for the date of this Agreement
throughout this Section 4):
(i) ORGANIZATION OF BUYER. Buyer is a company duly organized, validly
existing, and in good standing under the laws of the jurisdiction of Trinidad &
Tobago.
(ii) AUTHORIZATION OF TRANSACTION. Buyer has full power and authority
(including full corporate or other entity power and authority) to execute and
deliver this Agreement and to perform its obligations hereunder. This Agreement
has been duly and validly executed and delivered by Buyer and constitutes the
valid and legally binding obligation of Buyer, enforceable against Buyer in
accordance with its terms and conditions. The execution, delivery, and
performance of this Agreement by Buyer and all other agreements contemplated
hereby to be executed and delivered by Buyer have been duly authorized by Buyer.
(iii) CONSENTS. Buyer is not required give any notice to, make any
filing, application or registration with, or obtain any authorization, consent,
order, or approval of, or any waiver from any Person in order to execute and
deliver this Agreement or to consummate the transactions contemplated hereby,
except for such notices, filings, applications, registrations, authorizations,
consents, orders, approvals and waivers (if any) as have been obtained and
except that for such filings as Buyer may be required to make under Sections
13(d) and 16 of the Securities Exchange Act.
(iv) NONCONTRAVENTION. Neither the execution and the delivery by Buyer
of this Agreement, nor the consummation by Buyer of the transactions
contemplated hereby, will (A) violate any law, rule, injunction, or judgment of
any governmental agency or court to which Buyer is subject or any provision of
its charter, bylaws, trust agreement, or other governing documents, or (B)
conflict with, result in a breach of, or constitute a default under, any
agreement, contract, lease, license, instrument, or other arrangement to which
Buyer is a party or by which Buyer is bound or to which any of its assets is
subject.
(v) INVESTMENT INTENTION. Buyer is not acquiring the Company Stock
with a view to, or for offer or sale in connection with, any distribution
thereof within the meaning of the Securities Act of 1933, as amended (the
"SECURITIES ACT").
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(vi) NO RELIANCE. Buyer (A) is a sophisticated buyer with respect to
the purchase of the Company Stock, (B) has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of purchasing the Company Stock in accordance with this Agreement, (C)
understands and is able to bear the economic risks of investment in the Company
Stock (including the necessity of holding the Company Stock for an indefinite
period of time, inasmuch as the Company Stock has not been registered under the
Securities Act), (D) has adequate information concerning the business and
financial condition of the Company, the markets within which the Company
operates, and Company's prospects in those markets, and has had access to such
financial and other information and been afforded the opportunity to ask such
questions of representatives of the Company and receive answers thereto as Buyer
deems necessary, to make an informed decision regarding the purchase of the
Company Stock, (E) has independently and without reliance upon Seller, and based
on such information as Buyer has deemed appropriate, made its own analysis and
decision to enter into this Agreement, and (F) understands that the Company
Stock has not been registered under the Securities Act, and is being sold under
this Agreement in reliance upon one or more exemptions contained in the
Securities Act or interpretations thereof, and cannot be offered for sale,
resold or otherwise transferred unless the Company Stock subsequently is so
registered or qualifies for exemption from registration under the Securities
Act. Buyer acknowledges that Seller has not given Buyer any investment advice or
opinion on whether the purchase of the Company Stock is prudent.
(vii) BUYER EXCLUDED INFORMATION. Buyer acknowledges that (i) Seller
currently may have, or later may come into possession of, information with
respect to the Company Stock or the Company that is not known to Buyer and that
may be material to a decision to buy the Company Stock ("BUYER EXCLUDED
INFORMATION"), (ii) Buyer has determined to buy the Company Stock
notwithstanding its lack of knowledge of the Buyer Excluded Information, and
(iii) Seller shall have no liability to Buyer, and Buyer hereby waives and
releases any rights or claims that it might have against Seller and waives and
releases any duties that Seller may owe to Buyer, whether under applicable
securities laws or otherwise, with respect to the nondisclosure of the Buyer
Excluded Information in connection with the transactions contemplated hereby.
Buyer agrees to bear all risk of a decrease in the value or market price of the
Company Stock after the date hereof and the loss of an economic opportunity by
reason of being bound to this Agreement, regardless of the reason for such
decrease (including, without limitation, those resulting from the Buyer Excluded
Information or the actions of Seller).
5. CERTAIN COVENANTS. The Parties agree as follows:
(a) BEST EFFORTS. Each of the Parties will use his or its best efforts
to take all action and to do all things necessary, proper, or advisable in order
to consummate and make effective the transactions contemplated by this Agreement
(including satisfaction, but not waiver, of the Closing conditions set forth in
Section 6 below).
(b) NOTICES AND CONSENTS. Each of the Parties will give any notices
to, make any filings with, and obtain any authorizations, consents, and
approvals of all governmental agencies and other Persons in connection with the
matters referred to in Section 3(ii) and any other activities contemplated by
this Agreement, including, without limitation, the filing of all forms required
to be filed by Seller under Section 16 of the Securities Exchange Act, and the
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filing by the Company of a Current Report on Form 8-K, if the Company believes
such filing is appropriate. The Parties hereto consent to the filing of this
Agreement by the Company as an exhibit to a Current Report on Form 8-K, if the
Company believes such filing is appropriate.
(c) FURTHER ASSURANCES. In case at any time after the Closing any
further action is necessary or desirable to carry out the purposes of this
Agreement, each of the Parties will take such further action (including the
execution and delivery of such further instruments and documents) as the other
Party reasonably may request.
6. CONDITIONS TO CLOSING.
(a) Buyer's obligation to consummate the transactions to be performed
by it in connection with the Closing is subject to satisfaction or waiver of the
following conditions:
(i) the representations and warranties set forth in Section 3
above shall be true in all respects at and as of the Closing Date;
(ii) Seller shall have performed and complied with all of his
covenants hereunder to be performed or complied with at or prior to the
Closing in all respects;
(iii) no action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative agency of
any federal, state, local, or foreign jurisdiction or before any arbitrator
wherein an unfavorable injunction, judgment, order, decree, ruling, or
charge would (A) prevent consummation of any of the transactions
contemplated by this Agreement, or (B) cause any of the transactions
contemplated by this Agreement to be rescinded following consummation (and
no such injunction, judgment, order, decree, ruling, or charge shall be in
effect);
(iv) the Agreement and General Release of All Claims dated the date
hereof between Seller and the Company (as the same may be amended by the
parties thereto in accordance with the terms thereof, the "AGREEMENT AND
GENERAL RELEASE") shall be in full force and effect (without revocation of
any part thereof), and Seller shall be in full compliance with his
obligations under such Agreement and General Release; and
(v) Seller shall have delivered certificates representing the
Company Stock, duly endorsed in blank or with duly executed stock powers
attached.
(b) The obligations of Seller to consummate the transactions to be
performed by him or it in connection with the Closing are subject to
satisfaction or waiver of the following conditions:
(i) the representations and warranties set forth in Section 4
above shall be true in all respects at and as of the Closing Date;
(ii) Buyer shall have performed and complied with all of its
covenants hereunder to be performed or complied with at or prior to the
Closing in all respects;
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(iii) no action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative agency of
any federal, state, local, or foreign jurisdiction or before any
arbitrator wherein an unfavorable injunction, judgment, order, decree,
ruling, or charge would (A) prevent consummation of any of the
transactions contemplated by this Agreement, or (B) cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation (and no such injunction, judgment, order, decree, ruling,
or charge shall be in effect); and
(iv) Buyer shall have delivered payment in full of the Purchase
Price in accordance with Section 1 hereof.
7. MUTUAL RELEASES.
(a) In consideration of the delivery of the Company Stock and the
payment of the Purchase Price, the Seller and his heirs, successors and assigns,
on the one hand, and Buyer and each of it subsidiaries and all of their
respective officers, directors, and employees, on the other hand (collectively,
the "RELEASERS"), hereby fully, finally and unconditionally and forever release,
discharge and forgive, the other Releasers and all of their heirs, successors
and assigns, from any and all claims, allegations, complaints, proceedings,
charges, actions, causes of action, demands, debts, covenants, contracts,
liabilities or damages of any nature whatsoever, whether now known or claimed,
to whomever made, which they had, have or may have against the other Releasers
for or by reason of any cause, nature or thing whatsoever, up to the effective
date of this Agreement, known or unknown; PROVIDED, HOWEVER, that nothing in
this paragraph 7(a) shall affect, impair or release or discharge any claim
arising under or in connection with this Agreement.
(b) As of the date of, and upon execution of this Agreement and its
waiver and release of all claims, the Releasers covenant, represent and warrant
each to the other that they have not asserted and will not assert, threaten or
commence any claim, allegation, action, complaint or proceeding against the
other Releasers or any of them by reason of any cause, matter or thing released
pursuant to Section 7(a). If any Releaser should, after the execution of the
Agreement make, pursue, prosecute, or threaten to make any claim or allegation,
or pursue or commence or threaten to commence any claim, action, complaint or
proceeding against the other, or any of them, for or by reason of any cause,
matter or thing whatsoever released pursuant to Section 7(a), this Agreement may
be raised as, and shall constitute, a complete bar to any such claim,
allegation, action, complaint or proceeding, and the party against whom any such
claim is asserted shall be entitled to recover from the other party all
reasonable costs incurred by virtue of defending same, including reasonable
attorneys' fees and expenses, without altering or diminishing the effectiveness
of the release provisions provided under Section 7(a); PROVIDED, HOWEVER, that
nothing in this Section 7(b) shall limit any Releaser, individually or
collectively, from bringing any claim arising under or in connection with this
Agreement. Each Releaser represents that, as of the date hereof, they have no
knowledge of any basis for claims against the other.
8. MISCELLANEOUS.
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(a) PRESS RELEASES AND PUBLIC ANNOUNCEMENTS. Neither Party shall issue
any press release or make any public announcement relating to the subject matter
of this Agreement prior to the Closing or after Closing without the prior
written approval of other Party; PROVIDED, HOWEVER, that either Party may make
any public disclosure it believes in good faith is required by applicable law
(in which case the disclosing Party will use its reasonable best efforts to
advise and consult with the other Party prior to making the disclosure).
(b) NO THIRD-PARTY BENEFICIARIES. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
(c) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Parties with respect to the subject matter hereof and supersedes any
prior understandings, agreements, or representations by or between the Parties,
written or oral, to the extent they relate in any way to the subject matter
hereof.
(d) SUCCESSION AND ASSIGNMENT. This Agreement shall be binding upon
and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. Neither Party may assign either this Agreement
or any of his or its rights, interests, or obligations hereunder without the
prior written approval of the other Party, and any purported such assignment
without such consent shall be null and void; PROVIDED, HOWEVER, that Buyer may
(i) assign its rights and interests hereunder to one or more of its affiliates
designated in a writing signed by Buyer and delivered to Seller and (ii)
designate one or more of its affiliates to perform its obligations hereunder,
but notwithstanding any such assignment or designation pursuant to (i) or (ii)
above, Buyer shall at all times remain liable to Seller as a primary obligor for
the full performance of all of its obligations hereunder; PROVIDED FURTHER,
HOWEVER, that Seller may, to the extent permitted by applicable law, assign his
right hereunder to receive payment of all or any portion of the Purchase Price
to such Person or Persons as Seller may, in his sole discretion, designate in a
writing signed by Seller and delivered to Buyer.
(e) COUNTERPARTS. This Agreement may be executed in one or more
counterparts (including by means of facsimile with written confirmation of
successful transmission and receipt with original to follow promptly), each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument.
(f) HEADINGS. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
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(g) NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given (i) when delivered
personally to the recipient, or (ii) two business days after being sent to the
recipient by reputable overnight courier service (charges prepaid):
If to Seller:
c/o A. Xxxxxxx Xxxxxxxx, Xx.
0000 Xxxxx Xxxx Xxx
Xxxx Xxxxx, XX 00000
with a copy (which shall not constitute notice) to:
Xxxxx & Xxxxxxx L.L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx, Esq.
If to Buyer:
Angostura Limited
Corner Eastern Main Road & Trinity Avenue
Laventille, Trinidad & Tobago
Attn: Xxxxxxxx Xxxxx Xxxxxx
Either Party may change the address to which notices, requests, demands, claims,
and other communications hereunder are to be delivered by giving the other Party
notice in the manner herein set forth.
(h) GOVERNING LAW; CONSENT TO JURISDICTION; RECOVERY OF COSTS. This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of New York without giving effect to any choice or conflict of
law provision or rule. Each party irrevocably consents to the jurisdiction of
United States District Court for the Southern District of Florida or of the
state courts located therein, which shall be the exclusive venue and forum for
any action, suit or proceeding arising under, with respect to or in connection
with this Agreement. Each Party hereby waives any objection to the foregoing
choices of venue and forum based on FORUM NONCONVENIENS or similar principles.
Each Party agrees that, in the event of any action to enforce or for breach of
this Agreement, the prevailing Party shall be entitled to recover his or its
costs and expenses of litigation, including reasonable attorneys' fees.
(i) AMENDMENTS AND WAIVERS. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by Buyer
and Seller. No waiver by either Party of any provision of this Agreement or any
default, misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be valid unless the same shall be in writing and
signed by the Party making such waiver nor shall such waiver be deemed to extend
to any prior or subsequent default, misrepresentation, or breach of warranty or
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covenant hereunder or affect in any way any rights arising by virtue of any
prior or subsequent such default, misrepresentation, or breach of warranty or
covenant.
(j) SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(k) EXPENSES. Except as set forth in Section 8(h), each Party will
bear his or its own costs and expenses (including legal fees and expenses)
incurred in connection with this Agreement and the transactions contemplated
hereby (and, for the avoidance of doubt, neither Party shall claim that the
Company is responsible for such costs and expenses). Any stock transfer,
registration or similar taxes, charges or fees payable in respect of the
transfer and sale of the Company Stock contemplated by this Agreement shall be
paid by the Buyer.
(l) CONSTRUCTION. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring either Party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation. The Parties intend
that each representation, warranty, and covenant contained herein shall have
independent significance. If either Party has breached any representation,
warranty, or covenant contained herein in any respect, the fact that there
exists another representation, warranty, or covenant relating to the same
subject matter (regardless of the relative levels of specificity) which the
Party has not breached shall not detract from or mitigate the fact that the
Party is in breach of the first representation, warranty, or covenant.
(m) SPECIFIC PERFORMANCE. Each Party acknowledges and agrees that the
other Parties would be damaged irreparably in the event any provision of this
Agreement is not performed in accordance with its specific terms or otherwise is
breached, so that a Party shall be entitled to injunctive relief to prevent
breaches of this Agreement and to enforce specifically this Agreement and the
terms and provisions hereof in addition to any other remedy to which such Party
may be entitled, at law or in equity.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first above written.
ANGOSTURA LIMITED
By:
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Name:
Title:
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A. Xxxxxxx Xxxxxxxx, Xx.
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