EXHIBIT 99.2
STOCK PURCHASE AGREEMENT
Dated September 29th, 2004
By and Among
TROPICAL SPORTSWEAR INT'L CORPORATION,
SAVANE INTERNATIONAL CORP,
and
FARAH (AUSTRALIA) PTY LIMITED and
FARAH (NEW ZEALAND) LIMITED
and
SOUTH PACIFIC APPAREL PTY LIMITED,
and
XXXX BOX AND XXXX XXXXXXXX
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), dated September 29th 2004, by and
among TROPICAL SPORTSWEAR INT'L CORPORATION, a Florida corporation of 0000 X. Xxxxxx Xxxxxx,
Xxxxx, Xxxxxxx ("TSI"), the sole shareholder of SAVANE INTERNATIONAL CORP., a Texas
corporation, of 0000 Xxxxxxx Xxxx, Xxxxxxxx X Xxx 000, Xx Xxxx, Xxxxx ("Savane") which is in
turn the sole shareholder of Farah Offshore Sourcing a Cayman Islands company of 0000 X. Xxxx
Xxxxxxxx, X Xxxxx 000 X0 Paso ("FOS"), Savane and FOS being collectively referred to in this
Agreement as "Seller"), and SOUTH PACIFIC APPAREL PTY LIMITED ACN , of Suite 301,
215-225 Euston Road, Alexandria, New South Wales, Australia, an Australian company of
("Buyer") and Xxxx Box of 00 Xxxxxxxxx Xxxx,
Xxxxxxxxx, Xxx Xxxxx Xxxxx, Xxxxxxxxx and Xxxx Xxxxxxxx of 00 Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxx,
Xxx Xxxxx Xxxxx, Xxxxxxxxx ("Managers"). FOS is the sole shareholder of FARAH (AUSTRALIA) PTY.
LTD. ACN 000 864 586 of Suite 301, 215-225 Euston Road, Alexandria, New South Wales, an
Australian corporation ("Farah Australia") and Savane is the sole shareholder in FARAH (NEW
ZEALAND) LIMITED Company number 444621 of Xxxx 0, Xxxxxxx Xxxxxxxx Xxxxxx, 118 Asquith Avenue,
Mount Xxxxxx, Auckland, a New Zealand corporation ("Farah New Zealand"), subject to clause
1.1.2. Farah Australia and Farah New Zealand shall collectively be referred to as the
"Companies" and individually as the "Company." Certain other capitalized terms used herein are
defined in ARTICLE 8 and throughout this Agreement.
BACKGROUND
Farah Australia owns and operates a clothing sales, marketing and merchandising
business in Australia (the "Australian Business"). Farah New Zealand owns and operates a
clothing sales, marketing and merchandising business in New Zealand (the "New Zealand
Business"). The Australian Business and the New Zealand Business are collectively referred to
herein as the "Business".
Xxxx Box and Xxxx Xxxxxxxx (jointly and severally "Managers") are currently employed
by Seller as senior managers and are intimately involved in the day-to-day business operations,
planning and management of all aspects of Farah Australia, Farah New Zealand, the Australian
Business and the New Zealand Business. Buyer being a company owned by the Guarantors and
incorporated solely for this purpose, desires to acquire from Seller, and Seller desires to
sell to Buyer all of the outstanding capital stock of Farah Australia and Farah New Zealand
(the "Acquisition") on the terms and subject to the conditions set forth in this Agreement.
Following the consummation of the transactions contemplated by this Agreement, Xxxx Box and
Xxxx Xxxxxxxx will be employed by the Companies and continue to be in the day-to-day business
operations, planning and management of all aspects of the Company's business operations.
AGREEMENT
In consideration of the mutual representations, warranties, covenants and agreements
herein contained, and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties do hereby agree as follows:
ARTICLE 1 STOCK PURCHASE.
1.1 Purchase and Sale of Shares.
1.1.1 General. Upon the terms and subject to the conditions hereinafter set forth,
at the Closing (as defined in Section 7.1), Seller shall sell,
transfer and deliver to Buyer and Buyer shall acquire from Seller
all of the shares of capital stock and any other rights comprising
all of the capital stock of the Companies (the "Shares") free and
clear of all Liens excepting for those required under this agreement.
Certificates evidencing the Shares to be delivered by Seller to Buyer
as hereinafter provided shall be either duly endorsed in blank or
accompanied by appropriate stock powers endorsed in blank, or a
certificate by a director of the Company that no share certificates
have been issued for the Shares.
1.1.2 On closing Seller will procure an acknowledgement to the Buyer by
Xxxxxxx Xxxxx to the effect that he does not have any interest in the
3 shares in Farah New Zealand, as shown on current search, such
interest having previously passed to Savane after corporate
reorganization in or about 1998. Appropriate notification to the
Company's Office must also be handed to the Buyer on closing.
1.2 Purchase Price and Method of Payment. The Buyer shall cause to be paid to Seller
Three Million and 00/100 United States of America Dollars (US $3,000,000.00) made up as
follows:
1.2.1 Inter-Company Loan Satisfaction. Buyer shall cause the Companies,
jointly and severally, at Closing to satisfy the loan made by
Seller to the Companies, in the amount of Five Hundred Forty Six
Thousand and 00/100 United States of America Dollars (US $546,000.00)
(the "Inter-Company Loan").
1.2.2 As consideration for the Shares the balance namely the sum of
US$2,454,000.00 (the "Purchase Price") must be paid in accordance
with the method of payment set forth below in Section 1.3, and
which amount is apportioned between these Shares as follows:
$US Dollars
For those Shares in Farah (Australia) Pty Limited $1,772,033.00
For those Shares in Farah (New Zealand) Limited $681,967.00
$2,454,000.00
1.3 Purchase Price. Provided the conditions set out in article 10 are satisfied, the
Purchase Price must be paid as follows:
US Dollars
1.3.1 Within 30 days after Closing $354,000.00
1.3.2 Within 60 days after Closing $365,000.00
1.3.3 Within 90 days after Closing $335,000.00
1.3.4 Within 6 months after Closing $350,000.00
Within 12 months after Closing $350,000.00
Within 18 months after Closing $350,000.00
Within 24 months after Closing $350,000.00
Total: $2,454,000.00
1.4 Securities. As security for payment of the Purchase Price, Buyer shall enter and
deliver or procure the entering into and deliver to Seller the Securities namely:
1.4.1 On Closing:
(a) Equitable mortgage of shares in Farah (Australia) Pty
Limited (first ranking) (Exhibit 1.4.1(a));
(b) Equitable mortgage of shares in Farah (New Zealand) Limited
(first ranking) (Exhibit 1.4.1(b)).
1.4.2 On satisfaction of conditions in Article 10:
(a) Company charge over Farah (Australia) Pty Limited (Exhibit
1.4.2(a));
(b) Company charge (General Security Agreement) over Farah (New
Zealand) Limited (Exhibit 1.4.2(b)).
In both cases the Company charges in this clause 1.4.2 will rank
after the charges of any third party principal financier of those
Companies such that the third party principal financier has first
ranking security for an amount equal to the whole of its loan
facilities first entered into immediately after the date of this
Agreement, together with interest and costs in accordance with those
loan facility documents, and Seller has second ranking security for
all amounts thereafter, and Seller agrees to sign any necessary
postponement document required from time to time to effect this.
ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF THE COMPANIES AND THE SELLER.
Each Company, as concerns itself, and Seller (jointly and severally) make the
following representations and warranties to Buyer:
2.1 Valid Corporate Existence; Qualification. Each Company is duly organized, validly
existing and in good standing under the laws of its country of incorporation. Each
Company has the corporate power to carry on its businesses as now conducted and to own
its assets. Each Company is duly qualified to conduct business and is in good
standing as a foreign corporation in those jurisdictions set forth on Schedule 2.1.
The copies of each Company's good standing certificates or certificates of existence
(issued by the appropriate authority), Articles of Incorporation (certified by the
appropriate authority) and By-Laws (certified by the Secretary) or constitution
(certified by a director or the Secretary), as amended to date, which constitute a
part of Schedule 2.1 are true and complete copies of those documents as now in
effect. The minute books for each Company made available to Buyer for review were
correct and complete in all material respects as of the date of such review. All
material corporate actions taken by each Company have been duly authorized or
ratified. All accounts, books, ledgers and official and other records of each Company
have been fully, properly and accurately kept and substantially complete in all
material respects. The stock ledgers of each Company, as previously made available to
Buyer, contain accurate and complete records of all issuances, transfers and
cancellations of shares of the capital stock of each Company. At Closing, all such
minute books and records will be in the possession of each Company. To the knowledge
of each Company's management, each has fully complied with all the requirements of any
statute governing the use and registration of fictitious names, and has the legal
right to use the names under which it operates its business. There is no pending or
threatened proceeding for the dissolution, liquidation, insolvency or rehabilitation
of either Company.
2.2 Capitalization. Schedule 2.2 sets forth, with respect to each Company, (i) the number
of authorized shares of each class of its capital stock, and (ii) the number of issued
and outstanding shares of each class of its capital stock. All of the issued and
outstanding shares of capital stock of each Company (a) have been duly authorized and
validly issued and are fully paid and non-assessable, (b) were issued in compliance
with all applicable state and federal securities laws, and (c) were not issued in
violation of any preemptive rights or rights of first refusal. No preemptive rights
or rights of first refusal exist with respect to the shares of capital stock of the
Companies and no such rights arise by virtue of or in connection with the transactions
contemplated hereby. There are no outstanding or authorized rights, options,
warrants, convertible securities, subscription rights, conversion rights, exchange
rights or other agreements or commitments of any kind that could require either
Company to issue or sell any shares of its capital stock (or securities convertible
into or exchangeable for shares of its capital stock). There are no outstanding stock
appreciation, phantom stock, profit participation or other similar rights with respect
to each Company. Other than as set forth herein, there are no proxies, voting rights
or other agreements or understandings with respect to the voting or transfer of the
capital stock of either Company. Neither Company is obligated to redeem or otherwise
acquire any of its outstanding shares of capital stock. Schedule 2.2(a) sets forth,
with respect to each Company (if applicable), the name, address and federal taxpayer
identification number of, and the number of outstanding shares of each class of its
capital stock owned of record and/or beneficially by, each shareholder of such Company
as of the close of business on the date of this Agreement. As of the date hereof,
Seller constitutes the sole holder of all issued and outstanding shares of capital
stock of the Companies, and Seller owns such shares free and clear of all Liens,
restrictions and claims of any kind.
2.3 No Subsidiaries. Except as set forth in Schedule 2.3, there are no corporations,
partnerships or other business entities controlled by either Company (collectively,
"Subsidiaries"). As used herein, "controlled by" means (i) the ownership of not less
than fifty percent (50%) of the voting securities or other interests of a corporation,
partnership or other business entity, or (ii) the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of a
corporation, partnership or other business entity, whether through the ownership of
voting shares, by contract or otherwise. No Company has made any investment in,
directly or indirectly, and nor owns any capital stock of, or any other proprietary
interest in, any other corporation, partnership or other business entity that is not
reflected on its books and records.
2.4 Consents. Except as set forth in Schedule 2.4, and except for such consents as are
required by the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Acts of 1976, as amended
("H-S-R"), there are no consents of governmental or other regulatory agencies, foreign
or domestic or of other parties required to be received by or on the part of Seller to
enable such persons to enter into and carry out this Agreement in all material
respects.
2.5 Corporate Authority; Binding Nature of Agreement; Title to Common Stock, etc. Seller
has the requisite competence, power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the transactions
contemplated hereby. Each Company has the power and authority to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. Each Company has taken all action necessary to
authorize the execution and delivery of this Agreement, the performance of its
obligations hereunder and the consummation of the transactions contemplated hereby.
This Agreement has been duly executed and delivered by each Company and Seller, and
this Agreement constitutes the legal, valid and binding obligation of each of them,
enforceable against each of them in accordance with its terms subject to applicable
bankruptcy, reorganization, insolvency and similar laws affecting the rights of
creditors and subject to general principles of equity regardless of whether such
enforceability is considered in a proceeding at law or in equity.
2.6 Ownership of Assets.
2.6.1 Except as set forth on Schedule 2.6.1, each Company has title to all of its
Assets (as hereinafter defined), free and clear of any Liens. For purposes of
this Agreement, the term "Assets" means all of the properties and assets owned
by each Company, other than the Leased Properties, whether tangible or
intangible and wherever located and listed on Schedule 2.6.1 (excluding all
inventory of merchandise held for sale and/or rental). Schedule 2.6.1 sets
forth a description of each such Asset, whether it is owned or leased, and, if
owned, the name of the lienholder and the amount of the Lien, and if leased,
the name of the lessor.
2.7 Real Property. Farah Australia owns no real property. Schedule 2.7 sets forth (i)
the street address and legal description of each parcel of real estate owned by Farah
New Zealand as of the date hereof (the "Owned Property") and (ii) a brief description
(including size and function) of the principal improvements and buildings on each such
parcel. With respect to each such parcel of the Owned Property:
2.7.1 Farah New Zealand has good and marketable title to each parcel of Owned
Property, free and clear of any Lien other than (y) recorded easements,
covenants, and other restrictions which do not impair the current use,
occupancy or value of the property subject thereto ("Permitted Exceptions");
2.7.2 There are no pending or to the knowledge of the Company and Shareholders
threatened, condemnation proceedings, suits or administrative actions relating
to the Owned Property or other matters affecting adversely the current use,
occupancy or value thereof;
2.8 Leased Real Estate. Schedule 2.8 sets forth a list of all leases, licenses or similar
agreements for the use or occupancy of real property to which one of the Companies is
a party ("Real Property Leases" ), copies of which have previously been furnished to
Buyer, together with: (a) the lessor and lessee thereof and the date and term of each
of such leases, (b) the legal description, if known, including street address, of each
property covered thereby (the "Leased Premises"), and (c) a brief description
(including size and function) of the principal improvements and buildings thereon.
2.9 Brokers. All negotiations relative to this Agreement and the transactions
contemplated hereby have been carried on directly by and between Buyer and Seller
without the intervention of any broker, finder, investment banker or other third
party. Neither the Company nor Seller have engaged, consented to, or authorized any
broker, finder, investment banker or other third party to act on its or their behalf,
directly or indirectly, as a broker or finder in connection with the transactions
contemplated by this Agreement. Buyer agrees to indemnify Seller against, and to hold
it harmless from any claim for brokerage or similar commission or other compensation,
expenses (including reasonable attorney's fees) and damages which may be made against
or suffered by Seller by any third party in connection with any transactions
contemplated hereby which claim is based upon any action by the Company or Seller.
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer, individually and collectively, jointly and severally, makes the following
representations and warranties to Seller:
3.1 Buyers' Knowledge and Fiduciary Obligation to Seller. After the exercise of diligence
and based on information received in the course of their individual and collective
duties as employees of Seller, whether from Seller, the Companies or any other Person
or entity, except as set forth on Schedule 3.1, neither of the Managers knows, nor has
any reason to know, of any situation or circumstances, whether presently occurring,
that will occur or that have occurred, which, with or without the passage of time,
would result in the breach or default of any of Buyer's or the Companies' collective
or individual representations, warranties, covenants or obligations to Buyer, or which
would render any statement of Seller or the Companies untrue or incomplete. Buyer
acknowledges their fiduciary duty to Seller as employees and senior managers of Seller
up to and including the date of this Agreement.
3.2 Consents. Subject to Article 10, there are no consents of governmental or other
regulatory agencies, foreign or domestic, or of other parties required to be received
by or on the part of Buyer to enable Buyer to enter into and carry out this Agreement
in all material respects.
3.3 Authority; Binding Nature of Agreement. Buyer has all power and authority to enter
into this Agreement and to carry out their collective and individual obligations
hereunder. Buyer has taken all action necessary to consummate the transactions
contemplated hereby. This Agreement constitutes the valid and binding agreement of
Buyer and is enforceable in accordance with its terms subject to applicable
bankruptcy, insolvency and similar laws affecting the rights of creditors and subject
to general principles of equity.
3.4 No Breach. Neither the execution and delivery of this Agreement nor compliance by
Buyer with any of the provisions hereof nor the consummation of the transactions
contemplated hereby, will:
3.4.1 violate or, alone or with the passage of time, result in the
material breach or termination of, or otherwise give any contracting
party the right to terminate, or declare a default under, the terms of
any agreement or other document or undertaking, oral or written to
which Buyer, individually or collectively, is a party; or
3.4.2 violate any judgment, order, injunction, decree or award against, or
binding upon Buyer, individually or collectively.
3.5 Brokers. Buyer has not engaged, connected to, or authorized any broker, finder,
investment banker or other third party to act on its behalf, directly or indirectly,
as a broker or finder in connection with the transactions contemplated by this
Agreement, and Buyer agrees to indemnify Seller against, and to hold them harmless
from, any claim for brokerage or similar commission or other compensation which may be
made against the Company or Seller by any third party in connection with the
transactions contemplated hereby, which claim is based upon any action by Buyer.
ARTICLE 4 COVENANTS
4.1 Restrictive Covenants. So that Buyer may realize the benefits of the transactions
contemplated hereby, Seller and TSI agree that neither of them will:
4.1.1 for a period of three (3) years beginning on the Closing Date
(the "Noncompete Period"), directly or indirectly, alone or as a
partner, joint venturer,or provide its employees to act as an officer,
director, employee, consultant, agent or independent contractor of any
company or business, engage in the business of clothing sales,
marketing and merchandising on the date hereof (the "Clothing
Business") in Australia, New Zealand, Papua New Guinea, Solomon
Islands, Vanuatu, Fiji, New Caledonia, American Samoa, Xxxx
Islands, Easter Island, Niue, Pitcairn, Samoa, Tahiti, and French
Polynesia, Tokelau, Tonga, Tuvalu, and Wallis and Futuna (the
"Territory"); provided, however, that the beneficial ownership of
less than five percent (5%) of any class of securities of any entity
having a class of equity securities actively traded on a national
securities exchange or over-the-counter market shall not be deemed,
in and of itself, to violate the prohibitions of this Section 4.1;
and
4.1.2 at any time following the Closing Date, directly or indirectly, in
any way utilize in the Territory or disclose to any third party in the
Territory any of the Buyer Companies' proprietary rights or records
acquired hereunder, including, but not limited to, any customer lists.
Seller and TSI agree and acknowledge that: (i) the restrictions contained in this
Section 4.1 are reasonable in scope and duration, and are necessary to protect Buyer and its
subsidiaries engaged in the Clothing Business; (ii) any breach of this Section will cause
irreparable injury to the Buyer and its subsidiaries engaged in the Clothing Business; and
(iii) upon any breach or threatened breach of any provision of this Section 4.1, the Buyer or
its subsidiaries engaged in the Clothing Business shall be entitled to injunctive relief,
specific performance or other equitable relief.
4.1.3 Filings with U.S. Securities and Exchange Commission ("SEC"). Between
the date hereof and Closing, Seller or TSI may elect or have to make
certain filings with the SEC. To the extent that information
concerning Buyer is required to be included in such filings as
required by applicable law, Buyer shall use their best efforts to
provide such information, in the manner and form reasonably
requested by Seller and to cooperate with Seller to the extent
reasonably necessary to make the filings.
4.2 Shareholder Vote. Seller, in executing this Agreement, consents as the sole
shareholder of each of the Companies to the transactions contemplated hereby, and
waives notice of any meeting in connection therewith and hereby releases and waives
all rights with respect to the transactions contemplated hereby under any agreements
relating to the sale, purchase or voting of any capital stock of the Companies.
4.3 Resignation. Seller shall cause all directors, officers and/or employees of the
Companies appointed by Seller except for Xxxxxx Xxxxxxxx and Xxxx Box to resign from
their respective positions as of the Closing.
4.4 Stock Certificates. At the Closing, Seller shall deliver to Buyer all certificates
evidencing the Shares duly endorsed to Buyer (or its designee) by Seller, or a
certificate by a director of the Company that no share certificates have been issued
for the Shares.
4.5 Leases. On the Closing Date, the Companies and Seller shall use their reasonable
efforts to cause the landlords of the Leased Premises, if required, to execute and
deliver a consent for the consummation of the transactions contemplated by this
Agreement.
ARTICLE 5 CONDITIONS PRECEDENT TO THE OBLIGATION OF BUYER TO CLOSE
The obligation of Buyer to consummate the Closing is subject to the fulfillment, prior
to or on the Closing Date, of each of the following conditions, any one or more of which may be
waived by Buyer.
5.1 Accuracy of Representations and Warranties and Compliance with Obligations. The
representations and warranties of the Companies and Seller contained in this Agreement
shall be true and correct at and as of the Closing Date with the same force and effect
as though made at and as of that time except (i) for matters specifically permitted by
or disclosed in this Agreement, including on any schedule hereof, and the materials
provided, reviewed or available in connection with Buyer's due diligence review, and
(ii) that those representations and warranties which address matters only as of a
particular date shall remain true and correct as of such date. The Companies and
Seller shall have substantially performed and complied with all of their respective
obligations required by this Agreement to be performed or complied with at or prior to
the Closing Date. The Companies and Seller shall have delivered to Buyer a
certificate, dated as of the Closing Date, duly signed, certifying that such
representations and warranties are true and correct and that all such obligations have
been substantially performed and complied with.
5.2 Covenants. The Buyer shall have performed and complied in all material respects with
all covenants and agreements required by this Agreement to be performed or complied
with prior to or at the Closing.
5.3 No Actions. No action, suit, proceeding or investigation shall have been instituted,
and be continuing before a court or before or by a governmental body or agency and be
unresolved, to restrain or to prevent or to obtain damages in respect of, the carrying
out of the transactions contemplated hereby.
5.4 Consents, Licenses and Permits. The Companies and Seller shall have each obtained all
consents, licenses and permits of third parties necessary for the consummation of the
transactions contemplated by this Agreement.
5.5 Corporate Documents. The Companies and Seller shall have delivered to Buyer: (i)
copies of each Company's articles of incorporation and bylaws or constitution (as the
case may be) as in effect immediately prior to the Closing Date, (ii) copies of
resolutions adopted by the Board of Directors and of each Company and Seller
authorizing the transactions contemplated by this Agreement, and (iii) a certificate
of the Secretary of each Company certifying that, as of the Closing Date, the
foregoing items 5.5(i) and 5.5(ii) are true, correct and complete.
5.6 No Material Adverse Change or Destruction of Property. Between the date hereof and
the Closing Date, (i) there shall have been no material adverse change to the
Companies; and (ii) the properties and assets of the Companies shall not, materially
in the aggregate, have been destroyed by fire, flood, casualty, act of God or the
public enemy, where the damages and losses were not covered by insurance and the
damages and losses would have a material adverse effect on the Companies.
5.7 Certificate. Buyer shall have received a certificate in the form annexed hereto as
Exhibit 5.7 dated the Closing Date, signed by and on behalf of Seller and the
Companies as to the satisfaction of the conditions contained in Sections 5.1 through
5.6.
5.8 Delivery of the Shares. Subject to the provisions of Section 6.6, at the Closing,
Seller shall duly endorse for transfer and deliver to Buyer (or its assignee) the
Shares and such other instruments of transfer of title as are reasonably necessary to
transfer to Buyer (or its assignee) good and marketable title to the Shares free and
clear of any Liens.
5.9 Closing Documents. The Companies and Seller shall have executed and delivered the
documents required by this Agreement to have been executed and delivered by them on
closing, including, without limitation: (i) resignation of all of the officers and
directors of the Companies apart from Xxxxxx Xxxxxxxx and Xxxx Box; (ii) a Sub-License
Agreement between Companies and TSIL, Inc. in the form annexed hereto as Exhibit 5.9,
and (iii) such other certified resolutions, documents and certificates as are required
pursuant to the provisions of this Agreement or as are reasonably requested by Buyer
or Buyer's counsel to effect the transactions contemplated by this Agreement.
ARTICLE 6 CONDITIONS PRECEDENT TO THE OBLIGATION OF THE SELLER TO CLOSE
The obligation of Seller to consummate the Closing is subject to the fulfillment,
prior to or on the Closing Date, of each of the following conditions, any one or more of which
may be waived by the Companies and Seller, collectively (except when the fulfillment of such
condition is a requirement of law).
6.1 Representations and Warranties. All representations and warranties of Buyer contained
in this Agreement and in any, Exhibit, certificate or schedule delivered pursuant
hereto or in connection with the transactions contemplated hereby shall be true and
correct in all material respects as at the Closing Date, as if made at the Closing and
as of the Closing Date.
6.2 Covenants. Buyer shall have performed and complied in all material respects with all
covenants and agreements required by this Agreement to be performed or complied by
Buyer prior to or at the Closing.
6.3 No Actions. No action, suit, proceeding or investigation shall have been instituted,
and be continuing before a court or before or by a governmental body or agency and be
unresolved, to restrain or to prevent or to obtain damages in respect of, the carrying
out of the transactions contemplated hereby.
6.4 Consents, Licenses and Permits. Buyer shall have obtained all consents, licenses and
permits of third parties necessary for the performance of all its respective
obligations under this Agreement apart from those described in Article 10.
6.5 Certificate. The Seller shall have received a certificate in the form annexed hereto
as Exhibit 6.5 dated as of the Closing Date, signed by the each Buyer, individually,
as to the satisfaction of the conditions contained in Sections 6.1 through 6.4.
6.6 Consideration and Security Documents. At the Closing, Seller shall have received:
(i) wire transfer of the amounts due for the Inter-Company Loan pursuant
to section 1.2.1; and
(ii) those of the Securities being security for payment of the Purchase
Price as are listed in clause 1.4.1.
In addition to the delivery of those executed Securities, Buyer shall have:
(i) delivered to Seller all certificates representing the Shares mortgaged pursuant to
the equitable mortgages of shares, and such other instruments and documents as
required by Seller to grant from Buyer to Seller and perfect Seller's security
interest; and (ii) paid all taxes, other charges and fees payable to any governmental
entity in connection with the consummation of the transactions contemplated by this
Agreement, including, but not limited to, documentary stamp taxes, lien recording
fees, and filing fees (but not including Seller's income taxes) arising as a result of
the consummation of the transactions contemplated by this Agreement.
6.7 No Order or Injunction. No court of competent jurisdiction or other governmental body
shall have issued or entered any order or injunction restraining or prohibiting the
transactions contemplated hereby, which remains in effect at the time of the Closing.
6.8 Closing Documents. Buyer shall have executed and delivered: (i) the documents
required by this Agreement to have been executed and delivered by Buyer, individually
and collectively, (ii) a Sub-License Agreement between Companies and TSIL, Inc. in the
form annexed hereto as Exhibit 5.9, and (iii) such other certified resolutions,
documents and certificates as are reasonably requested by Seller or its counsel to
effect the transactions contemplated by this Agreement.
ARTICLE 7 CLOSING
7.1 The Closing. The closing of the purchase of the Shares and the other transactions
contemplated by this Agreement (the "Closing") shall occur on the day that is five (5)
days after satisfaction of all of the conditions precedent to the obligations of the
parties to close as set forth in ARTICLE 5 and ARTICLE 6, or such other day as the
parties may mutually agree, at 10:00 a.m. at the office of counsel for the Seller in
Australia. The date on which the Closing shall occur is referred to in this Agreement
as the "Closing Date."
7.2 Items to be Delivered by the Parties. At the Closing: (i) Seller and the Companies
shall deliver or cause to be delivered to Buyer the documents set forth in ARTICLE 5;
and (ii) Buyer shall deliver or cause to be delivered to Seller the documents set
forth in ARTICLE 6.
ARTICLE 8 DEFINITIONS
8.1 Defined Terms. As used herein, the following terms shall have the following meanings:
"Companies" means Farah (Australia) Pty Limited and Farah (New Zealand) Limited and
"each Company" is a reference to either or both of the Companies as the context
requires.
"GAAP" means generally accepted accounting principles in effect in the United States
of America from time to time.
"Governmental Authority" means any nation or government, any state, regional, local or
other political subdivision thereof, and any entity or official exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining to
government.
"Managers" means Xxxx Box and Xxxx Xxxxxxxx.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien, restriction
on transfer, right of refusal, preemptive right, claim or charge of any kind
(including, but not limited to, any conditional sale or other title retention
agreement, any lease in the nature thereof, and the filing of or agreement to give any
financing statement under the Uniform Commercial Code or comparable law or any
jurisdiction in connection with such mortgage, pledge, security interest, encumbrance,
lien or charge).
"Person" means an individual, partnership, corporation, business trust, joint stock
company, estate, trust, unincorporated association, joint venture, Governmental
Authority or other entity, of whatever nature.
"Securities" means those securities more particularly described in Section 1.4.
"U.S. $" means currency of the United States of America.
8.2 Other Definitional Provisions. All terms defined in this Agreement shall have the
defined meanings when used in any certificates, reports or other documents made or
delivered pursuant hereto or thereto, unless the context otherwise requires. Terms
defined in the singular shall have a comparable meaning when used in the plural, and
vice versa. All matters of an accounting nature in connection with this Agreement and
the transactions contemplated hereby shall be determined in accordance with GAAP
applied on a basis consistent with prior periods, where applicable. As used herein,
the neuter gender shall also denote the masculine and feminine, and the masculine
gender shall also denote the neuter and feminine, where the context so permits.
ARTICLE 9 MISCELLANEOUS PROVISIONS
9.1 Expenses. Except as otherwise expressly provided or set forth in, or required by,
this Agreement, Buyer and Seller shall each bear their own expenses in connection
herewith.
9.2 Confidential Information. Each party agrees that such party and its Advisors will
hold in strict confidence and not divulge, use or disclose any information or
documents received from the other parties and, if the transactions herein contemplated
shall not be consummated, each party will continue to hold such information and
documents in strict confidence, in the case of the recipient, refrain from any use of
same, and will return to such other parties all such documents (including the exhibits
attached to this Agreement) then in such receiving party's possession without
retaining copies thereof; provided, however, that each party's obligations under this
Section 9.2 to maintain such confidentiality shall not apply to any information or
documents that are in the public domain at the time furnished by the others or that
come in the public domain thereafter through any legitimate and proper means other
than a breach of an obligation to the disclosing party, or that are required by
applicable law to be disclosed. In the event of a breach or threatened breach under
this Section 9.2, the parties to this Agreement acknowledge that the person or persons
harmed or threatened to be harmed thereby will not have an adequate remedy at law, and
shall be entitled to such equitable and injunctive relief as may be available to
restrain the violation of this Section 9.2; provided, however, that nothing herein
shall be construed as prohibiting such persons from pursuing any other remedies
available for such breach or threatened breach, including the recovery of damages.
9.3 Modification, Termination or Waiver. This Agreement may only be amended, modified,
superseded or terminated in writing, and any of the terms, covenants, representations,
warranties or conditions hereof may be waived, but only by a written instrument
executed by the party waiving compliance. The failure of any party at any time or
times to require performance of any provision hereof shall in no manner affect the
right of such party at a later time to enforce the same.
9.4 Notices. Any notice or other communication required or which may be given hereunder
shall be in writing and either be (a) delivered personally, (b) be mailed, certified
or registered mail, postage prepaid, (c) sent by overnight courier delivery service,
receipt acknowledged, fees prepaid, or (d) transmitted by facsimile transmission to a
telephone number as to which one party notifies the other. Notice shall be deemed
given when so delivered personally, or if mailed or sent by courier service, five (5)
days after the date of mailing or deposited with the courier service, addressed as
follows:
If to Seller, to: Tropical Sportswear Int'l Corporation
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxxx Xxxxx
Executive Vice President and
Chief Financial Officer
With copies to: Akerman Senterfitt
Attn. Xxxxx Xxxxxxx, Esq.
000 X. Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
And to: Xxxx & Xxxx
Attn. Xxxx Xxxxxx
0 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxxxxxx
If to Buyer: South Pacific Apparel Pty Limited
With a copy to: Cropper Xxxxxxxx
Attn. Xxxx Xxxxxxxxx
Xxxxx 00, 0 Xxxxxxxxxxx Xxxxxx
Xxxxxx Xxxxxxxxx
If notice is provided by facsimile it shall be deemed given the next business day
after confirmation of transmission. The parties may change the persons and addresses
to which the notices or other communications are to be sent by giving written notice
of any such change in the manner provided herein for giving notice.
9.5 Binding Effect and Assignment. This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of the parties hereto; provided, however, that
no assignment of any rights or delegation of any obligations provided for herein may
be made by any party without the express written consent of the other parties.
9.6 Entire Agreement. This Agreement represents the entire understanding and agreement
between the parties with respect to the subject matter hereof, and supersedes all of
the negotiations, understandings and representations (if any) made by and between such
parties.
9.7 Exhibits. All exhibits or schedules annexed hereto (collectively, the "Exhibits") are
expressly made a part of this Agreement as fully as though completely set forth
herein, and all references to this Agreement herein or in any of such Exhibits shall
be deemed to refer to and include all such Exhibits.
9.8 Governing Law. This Agreement shall be construed and enforced in accordance with the
local laws of Australia applicable to agreements to be executed and performed wholly
within said state without giving effect to its conflicts of laws provisions. The
parties further agree that in any dispute between them relating to this Agreement
(except third party actions), exclusive venue and jurisdiction shall be in the courts
located within Hillsborough County, Florida, USA, any objections as to jurisdiction or
venue in such court being expressly waived.
9.9 Section Headings. The section headings contained in this Agreement are inserted for
convenience of reference only and shall not affect the meaning or interpretation of
this Agreement.
9.10 Gender. Words of the masculine gender in this Agreement shall be deemed and construed
to include correlative words of the feminine and neuter genders and words of the
neuter gender shall be deemed and construed to include correlative words of the
masculine and feminine genders.
9.11 Severability. The invalidity or unenforceability of any term or provision of this
Agreement shall in no way impair or affect the balance thereof, which shall remain in
full force and effect.
9.12 Counterparts. This Agreement may be executed in counterparts, each of which shall be
deemed to be an original, but which together shall constitute one and the same
instrument.
9.13 Recitals. The recitals set forth at the beginning of this Agreement are true and
correct and incorporated by reference into the body of this Agreement.
9.14 Definition of Knowledge. Unless expressly stated otherwise, whenever a statement of
any party to this Agreement is qualified by that party's "knowledge", "knowledge"
means the actual knowledge of the person making such statement at the time or times
that such statement is made. If the statement is made by a corporation, the actual
knowledge of the corporation's officers and directors is imputed to the Company;
otherwise, the actual knowledge of a person shall not be imputed to any other person.
9.15 Benefits to Others. The representations, warranties and covenants contained in this
Agreement are for the sole benefit of the parties hereto and they shall not confer and
are not intended to confer any rights on any other persons.
9.16 Construction. The parties agree and acknowledge that they have jointly participated
in the negotiation and drafting of this Agreement. In the event of an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed as if
drafted jointly by the parties and no presumptions or burdens of proof shall arise
favoring any 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.
9.17 Arm's Length Negotiations. Each party herein expressly represents and warrants to all
other parties hereto that (a) before executing this Agreement, said party has fully
informed itself of the terms, contents, conditions and effects of this Agreement; (b)
said party has relied solely and completely upon its own judgment in executing this
Agreement; (c) said party has had the opportunity to seek and has obtained the advice
of counsel before executing this Agreement; (d) said party has acted voluntarily and
of its own free will in executing this Agreement; (e) said party is not acting under
duress, whether economic or physical, in executing this Agreement; and (f) this
Agreement is the result of arm's length negotiations conducted by and among the
parties and their respective counsel.
ARTICLE 10 AUSTRALIAN AND NEW ZEALAND CORPORATION COMPLIANCE
10.1 Compliance. This Agreement and completion of it is conditional upon the Buyer taking
all actions necessary to ensure that this Agreement and the entering into of the
Securities complies with the provisions of sections 260A-E of the Corporations Xxx
0000 (Australia) and the provisions of Sections 76-80 of the Companies Act, 1993 (New
Zealand) in relation to the provision of financial assistance by a company for the
acquisition of shares in it.
10.2 Buyer. The Buyer must give all necessary notices, undertake all necessary meetings
and circulate all necessary information so as to comply with all legal requirements in
this regard, at its own expense, not later than 28 October 2004.
10.3 Rescission. If by 28 October 2004 the Buyer has been unable to obtain the required
shareholder approval or if any regulatory authority or any other party validly objects
to the transaction or conditions are imposed upon it which are not acceptable to the
Seller or to the Buyer in relation to either or both of the Companies, then without
further action being taken by either party, this Agreement and the Securities are
rescinded at that time and shall cease to have any further force or effect saving as
remaining as security until the transfer back envisaged by this article 10.3 has been
completed. The Shares must be transferred back to the Seller by the Buyer and all
necessary meetings undertaken and other actions taken to reinstate the parties to the
position they were in prior to the entering into of this Agreement. Neither party in
such circumstances will have any right to claim damages or any other amounts from the
other as a result of this rescission, excepting for any accrued rights for subsisting
breach of any other rights of either party.
10.4 Other Parties. Each party agrees to sign all necessary documents, to give all
necessary consents or other documents and to co-operate with each other (all at the
Buyer's cost), as may be reasonably required by the Buyer to ensure compliance with
the provisions of this Article 10.
10.5 Certification and delivery of Company Charges. Forthwith upon the provisions of this
Article 10 being satisfied the Buyer must certify that this has occurred to the Seller
by notice in writing to the Seller to that effect which must have enclosed with it the
duly executed Company Charges referred to in clause 1.4.2 together with evidence of
payment of any transaction duties, taxes or fees and all associated documentation
necessary to enable them to be registered. Upon delivery of the same, the provisions
of this Article 10 will be deemed to have been satisfied and this Agreement becomes
unconditional in relation to the provisions of Article 10. If either the
certification or the duly executed Company Charges (and supporting documents or any of
them) have not been delivered to the Seller by the Buyer on or before 29 October 2004,
then the condition contained in this Article 10 shall be deemed to have not been
satisfied and the provisions of Article 10.3 will apply.
10.6 Indemnity. Subject to Article 10.3 The Buyer indemnifies the Seller from any claims
or penalties which may be made or incurred as a result of any failure by the Purchaser
to comply with this Article 10.
Signatures on the following page
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
Signed by Xxxx Box:
Signature: /s/ Xxxx Xxxxxxx Box
Name: Xxxx Xxxxxxx Box
Signed by Xxxx Xxxxxxxx:
Signature: /s/ Xxxxxx Xxxx Xxxxxxxx
Name: Xxxxxx Xxxx Xxxxxxxx
Witness
EXEcuted by Farah (Australia) Pty Ltd in accordance with
section 127 of the Corporations Xxx 0000:
Signature: /s/ Xxxxxxx Xxxxx Signature: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx Xxxxx Name: Xxxxxxx X. Xxxxxx
Director Director
EXEcuted by Farah (New Zealand) Limited in accordance
with section 127 of the Corporations Xxx 0000:
Signature: /s/ Xxxxxxx Xxxxx Signature: Xxxxxxx X. Xxxxxx
Name: Xxxxxxx Xxxxx Name: Xxxxxxx X. Xxxxxx
Director Director
EXEcuted by Savane International Corp in accordance with
section 127 of the Corporations Xxx 0000:
Signature: /s/ Xxxxxxx Xxxxx Signature: /s/ Xxxx X. Xxxxxx
Name: Xxxxxxx Xxxxx Name: Xxxx X. Xxxxxx
Director Assistant Secretary
EXEcuted by Tropical Sportswear Int'l Corporation with
section 127 of the Corporations Xxx 0000:
Signature: /s/ Xxxxxxx Xxxxx Signature: /s/ Xxxx X. Xxxxxx
Name: Xxxxxxx Xxxxx Name: Xxxx X. Xxxxxx
Director Assistant Secretary
EXEcuted by South Pacific Apparel Pty Limited in
accordance with section 127 of the Corporations Xxx 0000:
Signature: /s/ Xxxx Xxxxxxx Box Signature: /s/ Andew Xxxx Xxxxxxxx
Name: Xxxxxx Xxxx Xxxxxxxx Name: Xxxxxx Xxxx Xxxxxxxx
Director Director and Secretary