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EXHIBIT 10.13
AGREEMENT
AND
PLAN OF REORGANIZATION
BY AND AMONG
AHFP HOLDING CORPORATION,
AND
INTERNATIONAL HOME FOODS, INC.
DATED AS OF
OCTOBER 1, 1997
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AGREEMENT
AND
PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement") is made and
entered into as of October 1, 1997, by and among AHFP Holding Corporation, a
Delaware corporation ("AHFP") and International Home Foods, Inc., a Delaware
corporation (the "Company").
R E C I T A L S
A. AHFP is the owner of 264,000,000 shares (the "Old Shares") of the
Company's common stock, no par value ("Common Stock");
B. AHFP is the owner of 40,000,000 shares (the "DM Shares") of the
common stock, $.01 par value ("DM Common Stock"), of DM US Holding Corp., a
Delaware corporation ("DM");
C. The Company has filed a registration statement with the
Securities and Exchange Commission in contemplation of an initial public
offering, and in order to diversify the voting power with respect to the
Company's Common Stock and provide additional liquidity for the Company's
shareholders, the Company intends to acquire DM and AHFP intends to reorganize
pursuant to the transactions described herein;
D. At the Initial Closing (hereinafter defined), the Company and
AHFP desire to effect an exchange of the DM Shares for additional shares of
Common Stock (collectively, the "DM Exchange");
E. In connection with the Second Closing (hereinafter defined), the
Company intends to amend its Certificate of Incorporation so as to provide (i)
that the par value of its Common Stock shall be increased to $.01 and (ii) for
a reverse stock split of the issued and outstanding shares of Common Stock (the
"New Common Stock") resulting in an exchange (the "Old Shares Exchange") of the
Old Shares and the shares of Common Stock received by AHFP as a result of the
DM Exchange (collectively, the "Aggregate Old Shares") for shares of New Common
Stock;
F. After the Second Closing AHFP will distribute to its shareholders
its assets, including (x) all of the shares of New Common Stock received by
AHFP pursuant to the Old Shares Exchange, (y) its contractual rights arising
under the Registration Agreement (hereinafter defined) and (z) its rights and
obligations arising under Sections 7.14 and 7.15 of the Merger Agreement
(hereafter defined), as necessary for the transactions contemplated herein to
qualify as a reorganization as described in Section 368(a) of the Internal
Revenue Code of 1986, as amended (the "Code").
G. For federal income tax purposes, it is intented that the
transactions contemplated herein qualify as a reorganization as described in
Section 368(a) of the Code.
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A G R E E M E N T S
NOW, THEREFORE, in consideration of the respective representations,
warranties, covenants and agreements hereinafter set forth, and other good and
valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
THE EXCHANGES
1.1. DM Exchange.
(a) Upon the terms set forth herein, at the Initial Closing
AHFP shall assign, transfer and convey to the Company the DM Shares. AHFP, at
the Initial Closing, shall deliver to the Company one or more share
certificates representing the DM Shares, properly endorsed for transfer
(together with all necessary stock powers and other documentation of transfer
reasonably acceptable to the Company).
(b) Subject to adjustment as provided in Section 1.3, at the
Initial Closing, the Company shall in respect of the DM Shares, issue to AHFP
16,666,667 shares of Common Stock.
1.2. Old Shares Exchange.
(a) Upon the terms set forth herein, at the Second Closing
AHFP shall surrender to the Company the Aggregate Old Shares. AHFP, at the
Second Closing, shall deliver to the Company one or more share certificates
representing the Aggregate Old Shares, properly endorsed for transfer (together
with all necessary stock powers and other documentation of transfer reasonably
acceptable to the Company).
(b) Subject to adjustment as provided in Section 1.3, at the
Second Closing, the Company shall in respect of the Aggregate Old Shares, issue
to AHFP 280,666,667 shares of New Common Stock.
1.3. Adjustment. Notwithstanding the foregoing, if between the date
of this Agreement and the Closing the outstanding shares of Common Stock shall
have been changed into a different number of shares or a different class by
reason of any stock dividend, subdivision, reclassification, recapitalization,
split, combination or exchange of shares (including the increase in par value
and the reverse stock split contemplated herein), then the number of shares of
Common Stock and New Common Stock to be issued by the Company pursuant to this
Article I shall be correspondingly adjusted to reflect such stock dividend,
subdivision, reclassification, recapitalization, split, combination or exchange
of shares.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1. Representations and Warranties of AHFP. AHFP represents and
warrants to the Company as follows:
(a) Ownership of Shares. As of the date hereof, AHFP is the
holder of record and beneficially owns 264,000,000 shares of Common Stock and
at the Second Closing, AHFP will surrender for exchange to the Company good and
valid title to the Aggregate Old Shares, free and clear of all liens. As of
the date hereof, AHFP is the holder of record and beneficially owns 40,000,000
shares of the common stock, $.01 par value, of DM, and at the Initial Closing
will transfer to the Company good and valid title to the DM Shares.
(b) Authority. (i) AHFP has been duly created and is validly
existing under the laws of the jurisdiction of its creation; AHFP has all
requisite power and authority to execute and deliver this Agreement and to
perform its obligations hereunder, and the execution, delivery and performance
by AHFP of this Agreement and the consummation by AHFP of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of AHFP.
(ii) AHFP has full legal capacity to execute and deliver
this Agreement and to perform the obligations of AHFP hereunder. This
Agreement has been duly and validly executed and delivered by AHFP and,
assuming this Agreement constitutes a valid and binding obligation of the
Company, constitutes a valid and binding obligation of AHFP, enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally and subject, as to
enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity). Each consent,
authorization, order or approval of, or filing or registration with, any
governmental entity required by applicable law on or before the Initial Closing
or Second Closing, as applicable, for or in connection with the execution and
delivery by such AHFP of this Agreement, or the performance by AHFP of its
obligations hereunder will have been obtained or made on or before the Initial
Closing or Second Closing, as applicable, except where the failure to obtain
any such consent, authorization, order, approval, filing or registration would
not affect AHFP's ability to perform its obligations under this Agreement in
any material respect.
(c) No Conflicts. The execution, delivery, and performance by
AHFP of this Agreement does not (i) violate or breach any provision of any law
or statute applicable to AHFP and any provision of its organizational or
constituent documents, except where such violation or breach would not affect
AHFP's ability to perform its obligations under this Agreement, or (ii)
violate, breach, cause a default under, or result in the creation of a lien
pursuant to, any agreement or instrument to AHFP is a party or to which it or
any of its properties may be subject, except where the violation, breach,
default or creation of a lien would not affect such AHFP's ability to perform
its obligations under this Agreement.
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(d) Private Placement.
(i) AHFP understands and acknowledges with the Company
that:
(A) the offering and sale of the Common Stock
and New Common Stock is intended to be exempt from registration under
the Securities Act of 1933 (the "Securities Act"), by virtue of the
provisions of either Section 4(2) of the Securities Act or Rule 506 of
Regulation D ("Regulation D") promulgated under the Securities Act by
the Securities and Exchange Commission (the "SEC");
(B) the offering itself will be reported by AHFP
to the SEC to the extent required by Regulation D and to various state
securities or blue sky commissioners to the extent required by
applicable state law; and
(C) there is no existing public or other market
for either the Common Stock or the New Common Stock and there can be no
assurance that AHFP will be able to sell or dispose of either the Common
Stock, or the New Common Stock.
(ii) AHFP represents and warrants to the Company that:
(A) except as contemplated by the Reorganization
Distribution, the Common Stock and the New Common Stock to be acquired
by it pursuant to this Agreement is being acquired for its own account,
not as a nominee or agent for any other person and without a view to the
distribution of the Common Stock or the New Common Stock or any interest
therein in violation of the Securities Act; and
(B) AHFP is an "accredited investor" within the
meaning of Rule 501(a) under Regulation D, and has such knowledge and
experience in financial and business matters so as to be capable of
evaluating the merits and risks of its investment in the Common Stock
and the New Common Stock.
(iii) AHFP acknowledges that the shares of the Common
Stock and the New Common Stock have not been registered under the Securities
Act and understands that the shares of the Common Stock and the New Common
Stock must be held indefinitely unless they are subsequently registered under
the Securities Act or such sale is permitted pursuant to an available exemption
from such registration requirement.
(e) Organization and Qualification. (i) AHFP is a corporation
duly organized, validly existing and in good standing under the laws of
the State of Delaware, has all requisite corporate power and authority
to own, lease and operate its properties and to carry on its business as
it is now conducted, and is duly qualified to do business and is in good
standing as a foreign corporation or other entity in each jurisdiction
in which the character of its properties or the nature of its business
makes such qualification necessary, except where the failure to be so
qualified or in good standing could not reasonably be expected to have a
material effect on the AHFP.
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(ii) HM&F Holdings, S.A. de C.V., a Mexican corporation
("Mexico Holdings") is duly organized, validly existing and in good
standing under the laws of Mexico, has all requisite corporate power and
authority to own, lease and operate its properties and to carry on its
business as it is now conducted, and is duly qualified to do business
and is in good standing as a foreign corporation or other entity in each
jurisdiction in which the character of its properties or the nature of
its business makes such qualification necessary, except where the
failure to be so qualified or in good standing could not reasonably be
expected to have a material effect on Mexico Holdings.
(iii) Productos Del Monte, S.A. de C.V., a Mexican
corporation ("Del Monte"), is duly organized, validly existing and in
good standing under the laws of Mexico, has all requisite corporate
power and authority to own, lease and operate its properties and to
carry on its business as it is now conducted, and is duly qualified to
do business and is in good standing as a foreign corporation or other
entity in each jurisdiction in which the character of its properties or
the nature of its business makes such qualification necessary, except
where the failure to be so qualified or in good standing could not
reasonably be expected to have a material effect on Del Monte.
(iv) Frutas y Verduras Selectas, S. de X.X. de C.V., a
Mexican partnership ("Frutas"), is duly organized, validly existing and
in good standing under the laws of Mexico, has all requisite power and
authority to own, lease and operate its properties and to carry on its
business as it is now conducted, and is duly qualified to do business
and is in good standing as a foreign entity in each jurisdiction in
which the character of its properties or the nature of its business
makes such qualification necessary, except where the failure to be so
qualified or in good standing could not reasonably be expected to have a
material effect on Frutas.
(f) Capitalization.
(i) (A) The authorized capital stock of DM consists
solely of 50,000,000 shares of DM Common Stock, of which 40,000,000
shares are issued and outstanding and owned beneficially and of record
by AHFP, free and clear of all liens. No other shares of capital stock
of DM are issued or outstanding. Each of the DM Shares has been validly
issued and is fully paid and nonassessable. None of the DM Shares have
been issued in violation of any preemptive or similar rights of any
stockholder of DM. None of the shares of capital stock of DM or any
other class of securities of DM has been or is registered under the
Securities Act or the Exchange Act.
(B) (1) No shares of DM Common Stock are
reserved for issuance, and (2) except for this Agreement, there are no
contracts, agreements, commitments or arrangements obligating AHFP or DM
(x) to offer, sell, issue or grant any shares of, or any options,
warrants or rights of any kind to acquire any shares of, or any
securities that are convertible into or exchangeable for any shares of,
capital stock of DM, (y) to redeem, purchase or acquire, or offer to
purchase or acquire, any outstanding shares of, or any outstanding
options, warrants or rights of any kind to acquire any shares of, or any
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outstanding securities that are convertible into or exchangeable for any
shares of, capital stock of DM or (z) to grant any lien on any shares of
capital stock of DM.
(ii) (A) The authorized capital stock of Mexico
Holdings consists solely of 5,000 shares of common stock, par value $10
Mexican Pesos per share (the "Mexico Common Stock"), of which 5,000
shares are issued and outstanding. The Company owns 4,999 shares of
Mexico Common Stock of record, free and clear of all liens. Xxxxxxxx X.
Xxxxxx, Xx. owns 1 share of Mexico Common Stock of record, free and
clear of all liens. No other shares of capital stock of Mexico Holdings
are issued or outstanding. Each share of Mexico Common Stock has been
validly issued and is fully paid and nonassessable. No shares of Mexico
Common Stock have been issued in violation of any preemptive or similar
rights of any stockholder of Mexico Holdings. None of the shares of
capital stock of Mexico Holdings or any other class of securities of
Mexico Holdings has been or is registered under the Securities Act or
the Exchange Act.
(B) (1) No shares of Mexico Common Stock are
reserved for issuance, and (2) there are no contracts, agreements,
commitments or arrangements obligating Mexico Holdings (x) to offer,
sell, issue or grant any shares of, or any options, warrants or rights
of any kind to acquire any shares of, or any securities that are
convertible into or exchangeable for any shares of, capital stock of
Mexico Holdings, (y) to redeem, purchase or acquire, or offer to
purchase or acquire, any outstanding shares of, or any outstanding
options, warrants or rights of any kind to acquire any shares of, or any
outstanding securities that are convertible into or exchangeable for any
shares of, capital stock of Mexico Holdings or (z) to grant any lien on
any shares of capital stock of Mexico Holdings.
(iii) (A) The authorized capital stock of Del Monte
consists solely of 2,500 shares of fixed capital series A stock, par
value $1.00 Mexican Pesos per share (the "Del Monte Fixed Common Stock")
and 186,513,464 shares of variable capital series B, par value $1.00
Mexican Pesos per share (the "Del Monte Variable Common Stock" and
collectively with the Del Monte Fixed Common Stock, the "Del Monte
Common Stock"). Mexico Holdings owns 2,499 shares of Del Monte Fixed
Common Stock of record, free and clear of all liens. Xxxxxxxx X.
Xxxxxx, Xx. owns 1 share of Del Monte Fixed Common Stock of record, free
and clear of all liens. Mexico Holdings owns 186,513,464 shares of Del
Monte Variable Common Stock of record, free and clear of all liens. No
other shares of capital stock of Del Monte are issued or outstanding.
Each share of Del Monte Common Stock has been validly issued and is
fully paid and nonassessable. No shares of Del Monte Common Stock have
been issued in violation of any preemptive or similar rights of any
stockholder of Del Monte. None of the shares of capital stock of Del
Monte or any other class of securities of Del Monte has been or is
registered under the Securities Act or the Exchange Act.
(B) (1) No shares of Del Monte Common Stock
are reserved for issuance, and (2) there are no contracts, agreements,
commitments or arrangements obligating Del Monte (x) to offer, sell,
issue or grant any shares of, or any options, warrants or rights of any
kind to acquire any shares of, or any securities that are convertible
into or
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exchangeable for any shares of, capital stock of Del Monte, (y) to
redeem, purchase or acquire, or offer to purchase or acquire, any
outstanding shares of, or any outstanding options, warrants or rights of
any kind to acquire any shares of, or any outstanding securities that
are convertible into or exchangeable for any shares of, capital stock of
Del Monte or (z) to grant any lien on any shares of capital stock of Del
Monte.
(iv) (A) The interests of Frutas consist solely of
two paid-in social parts (the "Frutas Interests"). Del Monte owns one
Frutas Interest of record, free and clear of all liens. Xxxxxxxx X.
Xxxxxx, Xx. owns one Frutas Interest of record, free and clear of all
liens. No other interests of Frutas are issued or outstanding. Each
Frutas Interests has been validly issued. No Frutas Interests has been
issued in violation of any preemptive or similar rights of any partner
of Frutas. None of the partnership interest of Frutas has been or is
registered under the Securities Act or the Exchange Act.
(B) (1) No Frutas Interests are reserved for
issuance, and (2) there are no contracts, agreements, commitments or
arrangements obligating Frutas (x) to offer, sell, issue or grant any
interests in, or any options, warrants or rights of any kind to acquire
any interests in, or any securities that are convertible into or
exchangeable for any interest in, Frutas, (y) to redeem, purchase or
acquire, or offer to purchase or acquire, any outstanding interest in,
or any outstanding options, warrants or rights of any kind to acquire
any interest in, or any outstanding securities that are convertible into
or exchangeable for any interest in, Frutas or (z) to grant any lien on
any interest in Frutas..
2.2. Representations and Warranties of the Company. The Company
represents and warrants to AHFP as follows:
(a) Organization and Qualification. The Company is a
corporation duly organized, validly exiting and in good standing under
the laws of the State of Delaware, has all requisite corporate power and
authority to own, lease and operate its properties and to carry on its
business as it is now conducted, and is duly qualified to do business
and is in good standing as a foreign corporation or other entity in each
jurisdiction in which the character of its properties or the nature of
its business make such qualification necessary , except where the
failure to be so qualified or in good standing could not reasonable be
expected to have material effect on the Company.
(b) Capitalization. As of the date of this Agreement, the
authorized capital stock of the Company consists solely of 1,900,000,000
shares of Common Stock, of which 330,000,000 shares are issued and
outstanding. No other shares of capital stock of the Company are issued
or outstanding. Each share of Common Stock has been validly issued and
is fully paid and nonassessable. Each share of the Common Stock and the
New Common Stock to be issued to AHFP hereunder will be validly issued,
fully paid and nonassessable.
(c) Authority. (i) The Company has all requisite power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder, and the execution, delivery and performance by
the Company of this Agreement and the consummation by the
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Company of the transactions contemplated hereby have been duly
authorized by all necessary action on the part of the Company.
(ii) The Company has full legal capacity to execute and
deliver this Agreement and to perform the obligations of the Company
hereunder. This Agreement has been duly and validly executed and
delivered by the Company and, assuming this Agreement constitutes a
valid and binding obligation of the Company, constitutes a valid and
binding obligation of the Company, enforceable against it in accordance
with its terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally and subject, as to
enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of
whether enforcement is sought in a proceeding at law or in equity).
Each consent, authorization, order or approval of, or filing or
registration with, any governmental entity required by applicable law on
or before the Initial Closing or Second Closing, as applicable, for or
in connection with the execution and delivery by the Company of this
Agreement, or the performance by the Company of its obligations
hereunder will have been obtained or made on or before the Initial
Closing or Second Closing, as applicable, except where the failure to
obtain any such consent, authorization, order, approval, filing or
registration would not affect the Company's ability to perform its
obligations under this Agreement in any material respect.
(d) No Conflicts. The execution, delivery, and performance by
the Company of this Agreement does not (i) violate or breach any
provision of any law or statute applicable to the Company or any
provision of its organizational or constituent documents, except where
such violation or breach would not affect the Company's ability to
perform its obligations under this Agreement, or (ii) violate, breach,
cause a default under, or result in the creation of a lien pursuant to,
any agreement or instrument to which such the Company is a party or to
which it or any of its properties may be subject, except where the
violation, breach, default or creation of a lien would not affect the
Company's ability to perform its obligations under this Agreement.
ARTICLE III
COVENANTS
3.1. New Common Stock. Prior to the Second Closing, the Company shall
cause the New Common Stock to be created.
3.2. Registration Rights Agreement. The Company and AHFP hereby agree
as follows:
(a) that the shares of New Common Stock are subject to that
certain Registration Rights Agreement entered into as of November 1, 1996 by
and among the Company, AHFP and AHP Subsidiary Holding Corporation ("AHP Sub")
(the "Registration Agreement") and that such are Registrable Shares (as such
term is defined in the Registration Agreement) thereunder.
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(b) From and after the consummation of the Reorganization
Distribution, the Company agrees and acknowledges that each of the shareholders
of AHFP (collectively, the "AHFP Shareholders"), as transferees of AHFP, shall
be members of the Buyer Group Demand Holders and Buyer Group Piggyback Holders
(as such terms are defined in the Registration Agreement) and shall be a
Holder, Demand Holder and Piggyback Holder (as such terms are defined in the
Registration Agreement) under the Registration Agreement; provided that their
rights under the Registration Agreement in such capacity shall be subject to
the provisions of this Section 3.2.
(c) From and after the Reorganization Distribution, the right
of any Demand Holder, who is a member of the Buyer Group Demand Holders, to
make a Demand Request (as such term is defined in the Registration Agreement)
shall be limited as follows: no Demand Request may be made by any Demand
Holder, who is a member of the Buyer Group Demand Holders, unless (i) with
respect to two Demand Registrations (as such term is defined in the
Registration Agreement) only, the Registrable Shares proposed to be sold by
such Demand Holder represent, in the aggregate more than 35% of the total
number of Registrable Shares held by all Buyer Group Demand Holders or (ii)
with respect to one Demand Registration only, (A) either (x) the Registrable
Shares proposed to be sold by such Demand Holder represent 51% or more of the
total number of Registrable Shares held by all Buyer Group Demand Holders other
than the members of the HMC Group or (y) it is made by at least two such Buyer
Group Demand Holders, who are not members of the HMC Group, (B) the Registrable
Shares proposed to be sold by such Demand Holders have a fair market value
(determined in good faith by the Company's Board of Directors), at the time of
the Company's receipt of the Demand Request, of $25 million or more than and
(C) the offering to be consummated pursuant to such Demand Request will not, in
the reasonable opinion of an investment banking firm selected by the Company,
have a material adverse effect on the market price of the Common Stock.
Notwithstanding the foregoing, in no event may a Demand Request be made at any
time within 180 days after the consummation of a Qualified IPO (as such term is
defined in the Registration Agreement"). As used in the paragraph this term
"HMC Group" means Hicks, Muse, Xxxx & Xxxxx Incorporated ("HMTF") and its
Affiliates (as such term is defined in the Registration Agreement) and its and
their respective officers, directors, and employees (and members of their
respective families and trusts for the primary benefit of such family members).
(d) From and after the Reorganization Distribution, the right
of any Piggyback Holder, who is a member of the Buyer Group Piggyback Holders,
to make a Piggyback Request (as such term is defined in the Registration
Agreement) in respect of a proposed Qualified IPO (as such term is defined in
the Registration Agreement) shall be subject to the prior consent of the
Company.
3.3. The Reorganization Distribution. After the Second Closing (and
in any event prior to the effectiveness of the Registration Statement for a
Qualified IPO), AHFP shall distribute to the AHFP Shareholders AHFP's assets,
including all of the shares of New Common Stock received by AHFP pursuant to
the Old Shares Exchange, subject to Section 3.2, the rights and obligations
under the Registration Agreement and the rights and obligations arising under
Sections 7.14 and 7.15 of the Merger Agreement, as necessary for the
transactions contemplated herein to qualify as a reorganization as described in
Section 368(a) of the Code (the "Reorganization Distribution"). In connection
with such distribution AHFP shall use reasonable efforts to obtain each AHFP
Shareholder's execution of and deliver to the Company a counterpart of an
Acknowledgment and Appointment of Agent in substantially the form of Exhibit
"A" hereto.
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3.4. Additional Agreements. Subject to the terms and conditions of
this Agreement, each of the parties hereto will use its commercially reasonable
efforts to take, or cause to be taken all action and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws to
consummate and make effective the transactions contemplated by this Agreement.
If at any time after either the Initial Closing or the Second Closing, as
applicable, any further action is necessary to carry out the purposes of this
Agreement, the parties to this Agreement and their duly authorized
representatives shall take all such actions.
ARTICLE IV
CLOSING
4.1. Initial Closing. The closing of the transactions contemplated by
the DM Exchange (the "Initial Closing") will take place at the offices of
Xxxxxx & Xxxxxx L.L.P., Dallas, Texas, at 5:00 p.m., local time, on September
30, 1997 or at such other place and time as AHFP and the Company may agree.
4.2. Second Closing. The closing of the transactions contemplated by
the Old Shares Exchange (the "Second Closing") will take place at the offices
of Xxxxxx & Xxxxxx L.L.P., Dallas, Texas, at 10:00 a.m. local time, immediately
prior to the effectiveness of the Registration Statement for a Qualified IPO or
at such other place and time as AHFP and the Company may agree.
4.3. Actions to Occur at the Initial Closing. At the Initial Closing:
(a) The Company shall deliver to AHFP the number of shares of
Common Stock due to AHFP as provided in Article I hereof; and
(b) AHFP shall deliver to the Company one or more stock
certificates respectively representing the DM Shares, properly endorsed for
transfer (together with all necessary stock powers and other appropriate
documentation).
4.4. Actions to Occur at Second Closing. At the Second Closing:
(a) The Company shall deliver to AHFP the number of shares of
New Common Stock due to AHFP as provided in Article I hereof; and
(b) AHFP shall deliver to the Company one or more stock
certificates respectively representing the Aggregate Old Shares, properly
endorsed for transfer (together with all necessary stock powers and other
appropriate documentation).
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ARTICLE V
GENERAL PROVISIONS
5.1. Survival of Representations, Warranties and Covenants.
Regardless of any investigation at any time made by or on behalf of any party
hereto or of any information any party may have in respect thereof, each of the
representations and warranties and covenants made hereunder or pursuant hereto
or in connection with the transactions contemplated hereby shall survive the
Closing.
5.2. Transaction Fees. Each party to this Agreement shall pay and
discharge all of its fees associated with the transactions contemplated by this
Agreement.
5.3. Amendment and Modification. This Agreement may not be amended
except by an instrument in writing signed by the parties hereto.
5.4. Waiver of Compliance. Any failure of AHFP on the one hand, or
the Company, on the other hand, to comply with any obligation, covenant,
agreement, or condition contained herein may be waived only if set forth in an
instrument in writing signed by the party or parties to be bound thereby, but
such waiver or failure to insist upon strict compliance with such obligation,
covenant, agreement or condition shall not operate as a waiver of, or estoppel
with respect to, any other failure.
5.5. Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of applicable
law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated herein is not affected in any
manner materially adverse to any party. Upon such determination that any term
or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the transactions contemplated hereby be
consummated as originally contemplated to the fullest extent possible.
5.6. Parties in Interest. This Agreement shall be binding upon and,
except as provided below, inure solely to the benefit of each party hereto and
their successors and assigns, and nothing in this Agreement, except as set
forth below, express 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.
5.7. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally or mailed by
registered or certified mail (return receipt requested) to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
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(a) If to AHFP, to
AHFP Holding Corporation
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxxx X. Xxxxxx, Xx.
Facsimile: (000) 000-0000
with a copy to
Xxxxxx & Xxxxxx L.L.P.
3700 Xxxxxxxx Xxxx Center
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attn: A. Xxxxxxx Xxxxx
Facsimile: (000) 000-0000
(b) If to the Company, to
0000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx Xxxxx
Facsimile: (000) 000-0000
5.8. Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, all of which
shall be considered one and the same agreement and shall become effective when
one or more counterparts have been signed by each of the parties and delivered
to the other parties, it being understood that all parties need not sign the
same counterpart.
5.9. Entire Agreement. This Agreement (which terms shall be deemed to
include the schedules hereto) constitutes the entire agreement of the parties
hereto and supersedes all prior agreements and understandings, both written and
oral, among the parties with respect to the subject matter hereof. There are
no representations or warranties, agreements or covenants other than those
expressly set forth in this Agreement.
5.10. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE. ANY SUIT OR PROCEEDING
BROUGHT HEREUNDER SHALL BE SUBJECT TO THE EXCLUSIVE JURISDICTION OF THE COURTS
LOCATED IN DELAWARE.
5.11. Director and Officer Liability. The directors, officers and
stockholders of either AHFP or the Company and their respective affiliates
shall not have any personal liability or obligation arising under this
Agreement.
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5.12. Certain Definitions. For purposes of this Agreement, the
term:
(a) "affiliate" of a specified person means a person who,
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such specified person;
(b) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(c) "Material Adverse Effect" shall mean any change or effect
that would be materially adverse to the consolidated business, condition
(financial or otherwise), operations, performance or properties of a specified
person and its subsidiaries, if any, taken as a whole.
(d) "Merger Agreement" shall mean that certain Agreement of
Sale and Plan of Merger, dated as of September 5, 1996, by and among AHP Sub,
et al. and AHFP, et al.
(e) "person" means an individual, corporation, limited
liability company, partnership, limited partnership, syndicate, person
(including, without limitation, a "person" as defined in Section 13(d)(3) of
the Exchange Act), trust, association or other legal entity or government,
political subdivision, agency or instrumentality of a government;
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15
IN WITNESS WHEREOF, AHFP and the Company have each caused this Agreement
to be signed as of the date first written above.
AHFP:
AHFP HOLDING CORPORATION
By: /s/ XXXXXX X. XXXXX
------------------------------------------
Xxxxxx X. Xxxxx
Vice President and Assistant
Secretary
COMPANY:
INTERNATIONAL HOME FOODS, INC.
By: /s/ N. XXXXXXX XXXX
------------------------------------------
N. Xxxxxxx Xxxx
Senior Vice President and Chief
Financial Officer
S-1
16
EXHIBIT A
ACKNOWLEDGMENT AND APPOINTMENT OF AGENT
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, hereby:
1. Appoints Hick, Muse, Xxxx & Xxxxx Incorporated, a Texas
corporation ("HMTF") as his/her lawful agent and attorney-in-fact
to represent the undersigned in connection with Sections 7.14
(Sales of Old AHFP Shares and Tag Along) and 7.15 (Certain Rights
of Sellers) of the Merger Agreement, to execute and deliver all
documents necessary to effectuate Sections 7.14 and 7.15 of the
Merger Agreement, and to do anything else, including without
limitation, signing and delivering all certificates, receipts,
contracts, statements, notice, orders, instructions, and any
other document that HMTF, in it sole discretion, belives
advisable to carry out the provisions in Section 7.14 and 7.15 of
the Merger Agreement;
2. Appoints HMTF as his/her true and lawful proxy, agent and
attorney-in-fact to vote pursuant to Section 7.15 of the Merger
Agreement any and all shares of any class of series of capital
stock of International Home Foods, Inc. (the "Company") or any
subsidiary of the Company held by the undersigned. The
undersigned acknowledges that the proxy granted hereby is
irrevocable, being coupled with an interest, and that such proxy
will continue until the termination of the undersigned's
obligation to vote any shares in accordance with Section 7.15 of
the Merger Agreement; and
3. Acknowledges and agrees to fulfill the covenants under Sections
7.14 and 7.15 of the Merger Agreement.
All terms not defined herein shall have the same meaning of such term in
that certain Agreement and Plan of Reorganization, dated September 30, 1997,
between AHFP Holding Corporation and International Home Foods, Inc.
IN WITNESS HEREOF, I have set my hand this ___ day of ________ 1997.
[SHAREHOLDER]
By:
----------------------------------
Name:
--------------------------------
Its:
---------------------------------
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