AMENDED AND RESTATED
STOCK SALE AGREEMENT
BY AND BETWEEN
CALIFORNIA AND HAWAIIAN SUGAR COMPANY, INC.
('SELLER')
AND
CITICORP VENTURE CAPITAL, LTD.
('PURCHASER')
DATED AS OF DECEMBER 24, 1998
TABLE OF CONTENTS
PAGE
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ARTICLE I TERMS OF PURCHASE AND SALE............................3
1.01. Sale of the Shares...................................3
1.02. Purchase Price.......................................3
1.03. Closing..............................................3
ARTICLE II REPRESENTATIONS AND WARRANTIES OF SELLER.............4
2.01. Organization; Good Standing..........................4
2.02. Corporate Power and Authority; Effect of Agreement...4
2.03. Capitalization.......................................4
2.04. Governmental Authorization...........................5
2.05. No Conflict..........................................5
2.06. Title to Shares......................................5
2.07. Advisory Fees........................................6
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PURCHASER.........6
3.01. Organization; Good Standing..........................6
3.02. Power and Authority; Effect of Agreement.............6
3.03. Governmental Authorization...........................6
3.04. No Conflict..........................................7
3.05. Investment Representations...........................7
3.06. Tax Matters..........................................8
3.07. Advisory Fees........................................8
ARTICLE IV COVENANTS OF THE PARTIES.............................8
4.01. Cooperation; Further Assurances......................8
4.02. Certain Rights and Obligations of the Parties........8
4.03. Certain Filings.....................................10
4.04. Stockholders Agreement and Registration Rights
Agreement...........................................10
4.05. CMP Loan............................................10
4.06. Executive Stock Purchase Agreements.................11
4.07. Confidentiality.....................................11
4.06. Specific Performance................................12
ARTICLE V CONDITIONS TO CLOSING................................12
5.01. Conditions of All Parties...........................12
5.02. Conditions to the Obligations of Seller.............14
5.03. Conditions to Obligations of Purchaser..............14
ARTICLE VI TERMINATION PRIOR TO CLOSING........................15
6.01. Termination.........................................15
6.02. Effect on Obligations...............................15
ARTICLE VII MISCELLANEOUS......................................16
7.01. Expenses............................................16
7.02. Notices.............................................16
7.03. Governing Law.......................................18
7.04. Entire Agreement....................................18
7.05. Counterparts; Effectiveness.........................18
7.06. Amendments; No Waivers..............................18
7.07. Severability........................................19
7.08. Captions............................................19
7.09. Successors and Assigns..............................19
7.10. Restrictive Legend..................................19
EXHIBITS
Exhibit A Form of Subordinated Credit Agreement between Newco, as borrower, and
Citicorp Mezzanine Partners, L.P., as lender (including form of
warrant to purchase common stock)
Exhibit B Form of Stockholders Agreement
Exhibit C Form of Registration Rights Agreement
AMENDED AND RESTATED
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STOCK SALE AGREEMENT
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This AMENDED AND RESTATED STOCK SALE AGREEMENT (this 'Agreement'), dated
as of December 24, 1998, is by and between California and Hawaiian Sugar
Company, Inc., a Hawaii corporation (the 'Seller'), and Citicorp Venture
Capital, Ltd., a New York corporation ('Purchaser').
RECITALS
WHEREAS, Seller is a party to that certain Amended and Restated Asset
Purchase Agreement, dated as of the date hereof, by and among, among others,
Seller and Sugar Acquisition Corporation, a Delaware corporation ('Newco') (the
'Asset Purchase Agreement'), pursuant to which Newco proposes to issue to
Seller 810,000 shares of Newco Common Stock (as defined in the Asset Purchase
Agreement), 25,000 shares of Newco Exchangeable Preferred Stock (as defined in
the Asset Purchase Agreement), 90,000 shares of Newco Class B Common Stock (as
defined in the Asset Purchase Agreement), 24,000 shares of Newco Junior
Preferred Stock (as defined in the Asset Purchase Agreement) and the Newco Note
(as defined in the Asset Purchase Agreement), as partial consideration for the
transfer of substantially all of the assets and business of Seller to Newco;
WHEREAS, following the consummation of the transactions contemplated by
the Asset Purchase Agreement, Seller desires to sell to Purchaser, and
Purchaser desires to purchase from Seller, the number of shares of Newco Common
Stock, Newco Class B Common Stock, and Newco Junior Preferred Stock, set forth
on Schedule I for the consideration set forth on Schedule I; and.
WHEREAS, Seller and Purchaser have previously entered into a Stock Sale
Agreement dated as of August 5, 1998 relating to the foregoing transactions,
and Seller and Purchaser desire to amend and restate the Stock Sale Agreement
as of the date hereof on the terms described herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements, and upon the terms and subject to the
conditions, hereinafter set forth, the parties hereby agree as follows:
DEFINITIONS
'Affiliate' means, with respect to any Person, any Person directly or
indirectly controlling, controlled by or under direct or indirect common
control with such other Person.
'Applicable Law' means, with respect to any Person, any domestic or
foreign, federal, state or local statute, law, ordinance, rule, administrative
interpretation, regulation, order, writ, injunction, judgment, decree or other
requirement of any Governmental Authority applicable to such Person or any of
its Affiliates or any of their respective properties, assets, officers,
directors, employees, consultants or agents (in connection with such officer's,
director's, employee's, consultant's or agent's activities on behalf of such
Person or any of its Affiliates).
'CMP' means Citicorp Mezzanine Partners, L.P.
'CMP Loan' means that certain $25,000,000 loan from CMP to Newco to be
consummated at the Closing (as defined in Section 1.03 hereof) pursuant to the
CMP Loan Agreement.
'CMP Loan Agreement' means that certain Subordinated Credit Agreement
providing for the CMP Loan, to be executed as of the Closing Date by Newco and
CMP, substantially in the form attached hereto as Exhibit A.
'Governmental Authority' means any foreign, domestic, federal,
territorial, state or local governmental authority, quasi-governmental
authority, instrumentality, court, government or self-regulatory organization,
commission, tribunal or organization or any regulatory, administrative or other
agency, or any political or other subdivision, department or branch of any of
the foregoing.
'Material Adverse Effect' means a change in, or effect on, Seller that (A)
results in a material adverse effect on, or a material adverse change in, the
assets, operations, financial condition or results of operations of Newco
(excluding (i) adverse changes of an industry-wide impact or (ii) adverse
changes attributable to the execution of this Agreement and the publicity
attendant thereto) or (B) materially impairs or prohibits the ability of Seller
and Purchaser to consummate the transactions contemplated hereby.
'Person' means an individual, corporation, partnership, limited liability
company, association, trust, estate or other entity or organization, including
a Governmental Authority.
ARTICLE I
TERMS OF PURCHASE AND SALE
1.01. SALE OF THE SHARES. At the Closing (as defined in Section 1.03
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hereof), subject to the terms and conditions set forth herein, Seller shall
sell to Purchaser, and Purchasershall purchase from Seller, the number of
shares of Newco Common Stock, NewcoClass B Common Stock and Newco Junior
Preferred Stock (collectively, the 'Securities') set forth on Schedule I.
1.02. PURCHASE PRICE. Subject to the terms and conditions of this
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Agreement, in full payment of the purchase price for the Securities, Purchaser
shall pay to Seller in cash the purchase price for the Securities set forth
on Schedule I (the 'Purchase Price').
1.03. CLOSING.
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(a) The closing of the transactions contemplated hereby (the
'Closing') shall take place at the offices of Gibson, Dunn & Crutcher LLP,
333 South Grand Avenue, Los Angeles, California 90071, on the date on which the
last of the conditions to Closing set forth in Sections 5.01, 5.02 and 5.03
have been satisfied or waived by the party or parties entitled to waive the
same or such other date as to which Seller and Purchaser may agree (the
'Closing Date').
(b) At the Closing, subject to the terms and conditions set forth
herein, Seller shall deliver or cause to be delivered to Purchaser certificates
representing the Securities, duly endorsed in blank for transfer. The
Securities shall bear legends giving notice of restrictions on transfer as set
forth in Section 7.10 hereof.
(c) At the Closing, subject to the terms and conditions set forth
herein, Purchaser shall pay and deliver to Seller the Purchase Price allocable
to the Securities being purchased by Purchaser. The Purchase Price shall be
payable to Seller at the Closing by wire transfer in immediately available
funds to a bank account designated by Seller in writing.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser as follows:
2.01. ORGANIZATION; GOOD STANDING. Seller is duly organized, validly
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existing and in good standing under thelaws of the state of its incorporation
or organization and has all requisite power and authority under such laws to
carry on its business as now conducted.
2.02. CORPORATE POWER AND AUTHORITY; EFFECT OF AGREEMENT. The
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execution, delivery and performance by Seller of this Agreement, and
the consummation by Seller of the transactions contemplated herein, including
the sale of the Securities, have been duly authorized by all necessary action
on the part of Seller. This Agreement has been duly and validly executed and
delivered by Seller and constitutes a valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms, except to the extent
that such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to creditors' rights
generally and is subject to general principles of equity.
2.03. CAPITALIZATION. As of the Closing, (i) the authorized capital
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stock of Newco shall consist solely of the Newco Common Stock, the Newco Class
B Common Stock, Newco Exchangeable Preferred Stock and the Newco Junior
Preferred Stock in the amounts, and having the rights, preferences and
privileges, referred to in the Asset Purchase Agreement and (ii) other than the
shares of Newco Common Stock, Newco Class B, Newco Junior Preferred Stock and
warrants to purchase Newco Common Stock issuable pursuant to the Asset Purchase
Agreement and warrants to purchase Newco Class B Common Stock issuable in
connection with the funding of the CMP Loan, there shall be no outstanding
securities, options, warrants, calls, stock appreciation rights, profit sharing
plans, phantom stock awards, rights, commitments, agreements, arrangements or
understandings of any kind, to which Newco is a party or by which it is bound,
obligating Newco to issue, deliver or sell, or cause to be issued, delivered or
sold, additional shares of capital stock or other voting securities of Newco,
or obligating Newco to issue, grant, extend or enter into any such security,
option, warrant, call, right, commitment, agreement, arrangement or undertaking
or any agreements or instruments having a similar economic effect.
2.04. GOVERNMENTAL AUTHORIZATION. The execution, delivery and
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performance by Seller of this Agreement require no action by, consent or
approval of, or filing with, any Governmental Authority other than (a)
compliance with any applicable requirements of the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the 'HSR Act') and federal and state
securities laws or (b) any actions, consents, approvals or filings otherwise
expressly referred to in this Agreement.
2.05. NO CONFLICT. Except as disclosed on Schedule 3.04(c) to the Asset
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Purchase Agreement, the execution, delivery and performance by Seller of this
Agreement and the consummation by Seller of the transactions contemplated
herein will not, with or without the giving of notice or the lapse of time, or
both, violate, conflict with or constitute a default under (a) any provision of
law, rule or regulation to which Seller is subject, (b) any order, judgment or
decree applicable to Seller, (c) any provision of the charter documents of
Seller or (d) any indenture, agreement or other instrument by which Seller is
bound.
2.06. TITLE TO SHARES.
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(a) As of the Closing, Seller will own and will have good and
marketable title to, and sole record and legal ownership of, the Securities,
free and clear of any and all liens, security interests, pledges, mortgages,
charges, limitations, claims, restrictions, rights of first refusal, rights of
first offer, rights of first negotiation or other encumbrances of any kind or
nature whatsoever (collectively, 'Encumbrances').
(b) Upon consummation of the Closing, without exception, Purchaser
will acquire from Seller legal and beneficial ownership of, and good and
marketable title to the Securities to be sold to Purchaser by Seller, free and
clear of all Encumbrances other than those provided for in the Securityholders
Agreement (as defined below).
2.07. ADVISORY FEES. Except for Goldman, Sachs & Co., PaineWebber
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Incorporated and Cybus Capital Markets, LLC, there is no investment banker,
broker, finder or other intermediary or financial advisor that has been
retained by or is authorized to act on behalf of Seller who might be entitled
to any fee, commission or reimbursement of expenses upon consummation of the
transactions contemplated by this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller as follows:
3.01. ORGANIZATION; GOOD STANDING. Purchaser is duly organized, validly
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existing and in good standing under the laws of the state of its incorporation
or organization and has all requisite power and authority under such laws to
carry on its business as now conducted.
3.02. POWER AND AUTHORITY; EFFECT OF AGREEMENT. The purchase of the
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Securities to be acquired by Purchaser, the payment and delivery of the
Purchase Price, the execution, delivery and performance by Purchaser of this
Agreement and the consummation by Purchaser of the transactions contemplated
herein have been duly authorized by all necessary action on the part of
Purchaser. This Agreement has been duly and validly executed and delivered by
Purchaser and constitutes a valid and binding obligation of Purchaser,
enforceable against Purchaser in accordance with its terms, except to the
extent that such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to creditors' rights
generally and is subject to general principles of equity.
3.03. GOVERNMENTAL AUTHORIZATION. The execution, delivery and
--------------------------
performance by Purchaser of this Agreement require no action by, consent or
approval of, or filing with, any Governmental Authority or any other Person
other than (i) compliance with any applicable requirements of the HSR Act and
federal and state securities laws or (ii) any actions, consents, approvals or
filings otherwise expressly referred to in this Agreement.
3.04. NO CONFLICT. The execution, delivery and performance by Purchaser
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of this Agreement and the consummation by Purchaser of the transactions
contemplated herein will not, with or without the giving of notice or the lapse
of time, or both, violate, conflict with or constitute a default under (a) any
provision of law, rule or regulation to which Purchaser is subject, (b) any
order, judgment or decree applicable to Purchaser, (c) any provision of the
charter documents of Purchaser or (d) any indenture, agreement or other
instrument by which Purchaser is bound.
3.05. INVESTMENT REPRESENTATIONS.
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(a) The Securities to be acquired by Purchaser will be acquired by
Purchaser for its own account, not as a nominee or agent, and not with a view
to or in connection with the sale or distribution of any part thereof, other
than pursuant to a valid exemption from the registration requirements of the
Securities Act of 1933 (the 'Securities Act').
(b) Purchaser understands that the Securities being purchased
hereunder will not be registered under the Securities Act on the ground that
the sale of the Securities provided for in this Agreement is exempt from
registration under the Securities Act and that the reliance of Seller on such
exemption is predicated in part on Purchaser's representations set forth in
this Agreement.
(c) Purchaser acknowledges that it is able to fend for itself in
the transactions contemplated by this Agreement and has the ability to bear the
economic risks of its investment pursuant to this Agreement.
(d) Purchaser understands that the Securities being purchased by
Purchaser hereunder are restricted securities within the meaning of Rule 144
under the Securities Act and that the Securities are not registered and must be
held indefinitely unless they are subsequently registered or an exemption from
such registration is available.
3.06. TAX MATTERS. Neither Purchaser nor any direct or indirect
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transferee of the Securities shall at any time transfer cash or other property
to Newco in amanner that would cause Purchaser or such transferee to be treated
as having transferred property to Newco for purposes of applying Section 351
of the Internal Revenue Code of 1986, as amended, to the transactions con-
templated hereby and by the Asset Purchase Agreement.
3.07. ADVISORY FEES. Except for Goldman, Sachs & Co., PaineWebber
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Incorporated and Cybus Capital Markets LLC, there is no investment banker,
broker, finder or other intermediary or financial advisor that has been
retained by or is authorized to act on behalf of Purchaser who might be
entitled to any fee, commission or reimbursement of expenses upon
consummation of the transactions contemplated by this Agreement.
ARTICLE IV
COVENANTS OF THE PARTIES
4.01. COOPERATION; FURTHER ASSURANCES. The parties hereto will use all
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commercially reasonable efforts, and will cooperate with each other, to secure
all necessary consents, approvals, authorizations, exemptions and waivers from
third parties as shall be required in order to comply with Applicable Laws and
to effectuate the transactions contemplated hereby, and will otherwise use all
reasonable efforts to cause the consummation of such transactions in accordance
with the terms and conditions hereof. At any time or from time to time after
the Closing, at the request of Seller or Purchaser, the parties shall execute
and deliver any further instruments or documents and take all such further
action as may be reasonably necessary in order to evidence or otherwise
facilitate the consummation of the transactions contemplated hereby.
4.02. CERTAIN RIGHTS AND OBLIGATIONS OF THE PARTIES.
---------------------------------------------
(a) Seller hereby agrees that Purchaser is entitled to rely on the
representations and warranties made to Seller by Newco in Article IV of the
Asset Purchase Agreement; and, that, in connection therewith, Purchaser, in its
capacity as purchaser of the Securities, shall have all of the rights and
remedies that Seller shall have against Newco pursuant to Article IX of the
Asset Purchase Agreement with respect to any breach of any representation or
warranty by Newco, and Purchaser shall be entitled to exercise Seller's rights
and remedies against Newco. In addition to the foregoing, Seller agrees and
acknowledges that Purchaser shall have the right, on behalf of and for the
benefit of Newco, to enforce the obligations of Seller to Newco under the Asset
Purchase Agreement on the terms and conditions set forth in this Section 4.02.
(b) Seller agrees and acknowledges that Purchaser shall be
entitled, on behalf of and for the benefit of Newco, (i) to enforce any and all
covenants and agreements of Seller contained in the Asset Purchase Agreement,
(ii) from and after the Closing Date, to make any determination as to whether
Newco should seek indemnification pursuant to Article IX of the Asset Purchase
Agreement and, as appropriate, to direct Newco to pursue such indemnification
and (iii) to make any and all other determinations on behalf of Newco with
respect to the rights (including rights pursuant to Sections 2.06, 2.07 and
6.07 of the Asset Purchase Agreement) and remedies of Newco under the Asset
Purchase Agreement. Purchaser agrees to exercise their rights on behalf of and
for the benefit of Newco in good faith and in a commercially reasonable manner.
Following the Closing, Seller shall cooperate with Purchaser as reasonably
required in order to enable Purchaser to assert such rights on behalf of Newco.
(c) Seller agrees that it shall not, without the prior written
consent of Purchaser, agree, cause to be made, or consent to any waiver,
amendment or modification of any of the terms of the Asset Purchase Agreement.
(d) In the event that the Closing occurs, Purchaser will have no
direct rights, remedies or recourse against Seller for any breach of any
representation, warranty or covenant of Seller contained in the Asset Purchase
Agreement, and Purchaser's sole remedy pursuant to this Section 4.02 and the
Asset Purchase Agreement for such breach shall be its right to direct the
activities of Newco, on behalf of and for the benefit of Newco, in its pursuit
of any claims or causes of action that it may have against Seller.
(e) Purchaser agrees with Seller that it will cooperate with
Seller and use its commercially reasonable efforts, prior to the consummation
of the transactions contemplated in the Asset Purchase Agreement and this
Agreement, to arrange for (i) the CMP Loan and (ii) a revolving working capital
credit facility for Newco pursuant to which Newco will have not less than
$75,500,000 of borrowing capacity as of the Closing.
4.03. CERTAIN FILINGS. The parties hereto shall cooperate with one
---------------
another in determining whether any action by or in respect of, or filing with,
any Governmental Authority ('Required Governmental Approvals') is required or
reasonably appropriate, or any action, consent, approval or waiver from any
party to any contract ('Required Contractual Consents') is required or
reasonably appropriate, in connection with the consummation of the transactions
contemplated by this Agreement. Subject to the terms and conditions of this
Agreement, in taking such actions or making any such filings, the parties
hereto shall furnish information required in connection therewith and seek
timely to obtain any such actions, consents, approvals or waivers. Without
limiting the foregoing, the parties hereto shall each promptly complete and
file all reports and forms, and respond to all requests or further requests for
additional information, if any, as may be required or authorized under the HSR
Act and federal and state securities laws.
4.04. STOCKHOLDERS AGREEMENT AND REGISTRATION RIGHTS AGREEMENT.
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Simultaneously with the Closing, the parties hereto shall execute a
Stockholders Agreement in substantially the form attached hereto as Exhibit B
and a Registration Rights Agreement in substantially the form attached hereto
as Exhibit C.
4.05. CMP LOAN. Simultaneously with the Closing, upon the funding of
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the CMP Loan, Newco will use the proceeds of such CMP Loan and other funds of
Newco to repay, in full, the Newco Note issued to Seller pursuant to the Asset
Purchase Agreement.
4.06. EXECUTIVE STOCK PURCHASE AGREEMENTS. Simultaneously with the
-----------------------------------
Closing, Newco shall issue an aggregate of 100,000 shares of Newco Common Stock
to certain executives of Newco at a purchase price of $1.00 per share pursuant
to Executive Stock Purchase Agreements in form and substance satisfactory to
Seller and Purchaser (the 'Executive Stock Purchase Agreements').
4.07. CONFIDENTIALITY.
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(a) The parties hereto will, and will cause their Affiliates and
representatives to, treat any data and information obtained with respect to any
of the other parties hereto or any of their Affiliates from any representative,
officer, director or employee of any of the other parties hereto, or from any
books or records of any of the other parties hereto in connection with this
Agreement or the Asset Purchase Agreement, confidentially and with commercially
reasonable care and discretion, and will not disclose any such information to
third parties; provided, however, that the foregoing shall not apply to
(i) information in the public domain or that becomes public through disclosure
by any party other than the party required by this Section 4.05 to treat the
information as confidential, or its Affiliates or representatives, so long as
such other party is not in breach of a confidentiality obligation,
(ii) information required to be disclosed by Applicable Law, (iii) information
required to be disclosed, on a confidential basis, whenever possible, to obtain
any Required Governmental Approvals or Required Contractual Consents; or
(iv) any information that is disclosed, on a confidential basis, whenever
possible, to any actual or prospective lenders or investors in connection with
financing the transactions contemplated by this Agreement or the Asset Purchase
Agreement.
(b) In the event that the Closing fails to take place and this
Agreement is terminated, each party hereto, upon the written request of any
other party hereto, will, and will cause its Affiliates and representatives to,
promptly deliver to the requesting party any and all documents or other
materials furnished by that party in connection with this Agreement or the
Asset Purchase Agreement without retaining any copy thereof and without using
any confidential information to solicit any customers of that party. In the
event of such request, all other documents, whether analyses, compilations or
studies, that contain or otherwise reflect the information so furnished shall
be destroyed or shall be returned, and it shall be confirmed in writing that
all such materials have been returned or destroyed. No failure or delay by any
party hereto in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any right,
power or privilege hereunder.
4.06. SPECIFIC PERFORMANCE. The parties hereto recognize and agree that
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in the event of a breach by any party hereto of Section 4.05, money damages
would not be an adequate remedy for such breach and, even if money damages were
adequate, it would be impossible to ascertain or measure with any degree of
accuracy the damages sustained therefrom. Accordingly, if there should be a
breach or threatened breach by any party hereto of provisions of Section 4.05,
each other party hereto shall be entitled without the requirement of posting a
bond or other security to an injunction restraining any breach without showing
or proving actual damage. Nothing in the preceding sentence shall limit or
otherwise affect any remedies otherwise available under Applicable Law.
ARTICLE V
CONDITIONS TO CLOSING
5.01. CONDITIONS OF ALL PARTIES.
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(a) All Required Governmental Approvals for the transactions
contemplated by this Agreement shall have been obtained without the imposition
of any conditions that would have a Material Adverse Effect. All such Required
Governmental Approvals shall be in effect, and no actions, suits, hearings,
arbitrations or proceedings (public or private) (collectively, 'Proceedings')
shall have been instituted or threatened by any Governmental Authority against
Seller or Purchaser (or any of their Affiliates) with respect thereto as to
which there is a material risk of a determination that would terminate the
effectiveness of, or otherwise materially and adversely modify the terms of,
any such Required Governmental Approval; all applicable waiting periods with
respect to such Required Governmental Approvals shall have expired; and all
conditions and requirements prescribed by Applicable Law or by such Required
Governmental Approvals to be satisfied on or prior to the Closing shall have
been satisfied allowing all such Required Governmental Approvals to be and to
remain in full force and effect assuming continued compliance with the terms
thereof after the Closing.
(b) The Required Contractual Consents shall have been obtained
without the imposition of any conditions that would have a Material Adverse
Effect. All such Required Contractual Consents shall be in full force and
effect and no Proceeding shall have been instituted or threatened with respect
thereto that would have a Material Adverse Effect. All conditions and
requirements prescribed by any required Contractual Consent (or any such other
consent) to be satisfied on or prior to the Closing Date shall have been
satisfied in all material respects.
(c) The transactions contemplated by this Agreement and the
consummation of the Closing shall not violate any Applicable Law. No temporary
restraining order, preliminary or permanent injunction, cease and desist order
or other order issued by any court of competent jurisdiction or any competent
Governmental Authority or any other legal restraint or prohibition preventing
the consummation of the transactions contemplated hereby shall be in effect,
and there shall be no pending or threatened actions or proceedings by any
Governmental Authority (or determinations by any Governmental Authority) or by
any other Person challenging or in any manner seeking to restrict or prohibit
the consummation of the transactions contemplated hereby.
(d) Concurrently with the Closing, the parties shall have executed
a Stockholders Agreement and a Registration Rights Agreement substantially in
the forms attached hereto as Exhibit B and Exhibit C, respectively.
(e) Concurrently with the Closing, CMP and Newco shall have
executed the CMP Loan Agreement and CMP shall have funded the CMP Loan.
(f) Concurrently with the Closing, Newco shall have entered into
Executive Stock Purchase Agreements with certain executives of Newco and Newco
shall have issued an aggregate of 100,000 shares of Newco Common Stock to such
executives pursuant thereto.
(g) The parties to the Asset Purchase Agreement shall have
complied in all material respects with each of their agreements and covenants
contained therein to be performed on or prior to the Closing Date.
(h) The transactions contemplated under the Asset Purchase
Agreement shall have been consummated.
5.02. CONDITIONS TO THE OBLIGATIONS OF SELLER. Seller's obligation to
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sell the Shares shall be subject to the satisfaction or waiver of the following
conditions on or prior to the Closing Date:
(a) Purchaser shall have performed and satisfied in all material
respects its obligations hereunder required to be performed or satisfied by it
on or prior to the Closing Date. Seller shall have received a certificate
signed by Purchaser to the foregoing effect.
(b) The representations and warranties of Purchaser contained in
this Agreement shall be true, complete and accurate in all material respects at
and as of the Closing Date, as if made at and as of the Closing Date. Seller
shall have received a certificate signed by Purchaser to the foregoing effect.
(c) Seller shall have acquired the Securities from Newco pursuant
to the Asset Purchase Agreement.
(d) Concurrently with the Closing, Newco shall have repaid in full
the Newco Note issued to Seller pursuant to the Asset Purchase Agreement.
(e) Concurrently with the Closing, Purchaser shall have delivered
to Seller the Purchase Price in accordance with Article I hereof.
5.03. CONDITIONS TO OBLIGATIONS OF PURCHASER. The obligation of
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Purchaser to purchase the Securities shall be subject to the satisfaction or
waiver of the following conditions on or prior to the Closing Date:
(a) Seller shall have performed and satisfied in all material
respects its obligations hereunder required to be performed or satisfied by it
on or prior to the Closing Date. Purchaser shall have received a certificate
signed by a duly authorized executive officer of Seller to the foregoing effect
and to the effect that, to the knowledge of such executive officer, the
foregoing conditions have been satisfied.
(b) The representations and warranties of Seller contained in this
Agreement shall be true, complete and accurate in all material respects at and
as of the Closing Date, as if made at and as of the Closing Date. Purchaser
shall have received a certificate signed by a duly authorized executive officer
of Seller to the foregoing effect and to the effect that, to the knowledge of
such executive officer, the foregoing condition has been satisfied.
(c) Seller shall have delivered for sale to Purchaser on or prior
to the Closing Date those certificates (and any necessary stock transfer
instruments) representing all Securities to be sold by Seller to Purchaser
pursuant to Article I hereof.
(d) All actions taken by Newco with respect to the performance of
its obligations, the enforcement or waiver of its rights under the Asset
Purchase Agreement, including without limitation, the terms and conditions of
all financing transactions entered into in connection with such transactions,
shall be satisfactory to Purchaser.
ARTICLE VI
TERMINATION PRIOR TO CLOSING
6.01. TERMINATION. This Agreement may be terminated at any time prior
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to the Closing:
(a) By the mutual written consent of Seller and Purchaser; or
(b) By either Seller or Purchaser by written notice if the closing
of the transactions contemplated by the Asset Purchase Agreement has not been
consummated by March 31, 1999 (the 'Outside Date').
6.02. EFFECT ON OBLIGATIONS. Termination of this Agreement pursuant to
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this Article VI shall terminate all rights and obligations of the parties
hereunder other than those contained in Section 4.02 hereof and this Section
6.02. In the event that the Asset Purchase Agreement is terminated pursuant to
Sections 10.01(b) or (c) of the Asset Purchase Agreement, Seller agrees and
acknowledges that Purchaser shall be entitled, in its own name and for its own
benefit, to pursue any and all claims, rights and causes of action of Newco
against Seller.
ARTICLE VII
MISCELLANEOUS
7.01. EXPENSES.
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(a) Except as otherwise provided herein, Purchaser and Seller
shall cause all costs, expenses, liabilities, taxes and other charges incurred
by Purchaser and Seller in connection with this Agreement and the transactions
contemplated hereby to be paid by Newco, including the reasonable fees and
expenses of investment banks, attorneys and other advisors.
(b) In the event that this Agreement is terminated and/or the
transactions contemplated hereby are not consummated, Seller shall be
responsible for all of its expenses (including any fees and expenses of
investment banks, attorneys and other advisors engaged by Seller) and Purchaser
shall be responsible for its expenses (including any fees and expenses of
investment banks, attorneys and other advisors engaged by Purchaser).
7.02. NOTICES. All notices, requests, demands, claims and other
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communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given (i) if
personally delivered, when so delivered, (ii) if mailed, five Business Days
after having been sent by registered or certified mail, return receipt
requested, postage prepaid and addressed to the intended recipient as set forth
below, (iii) if given by telex or telecopier, once such notice or other
communication is transmitted to the telex or telecopier number specified below
and the appropriate answer back or telephonic confirmation is received,
provided that such notice or other communication is promptly thereafter mailed
in accordance with the provisions of clause (ii) above or (iv) if sent through
an overnight delivery service in circumstances to which such service guarantees
next day delivery, the day following being so sent:
If to Seller:
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Alexander & Baldwin, Inc.
333 Market Street, 30th Floor
San Francisco, CA 94105
Attention: Chief Financial Officer
Telecopier: (415) 546-9630
with copies to:
--------------
Alexander & Baldwin, Inc.
Post Office Box 3440
Honolulu, HI 96801
Attention: General Counsel
Telecopier: (808) 525-6678
Bradford P. Weirick, Esq.
Gibson, Dunn & Crutcher LLP
333 S. Grand Avenue
Los Angeles, CA 90071
Telecopier: (213) 229-7520
If to Purchaser:
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David Howe
Citicorp Venture Capital, Ltd.
399 Park Avenue
New York, NY 10043
Telecopier: (212) 888-2940
with a copy to:
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Kirk Radke, Esq.
Kirkland & Ellis
Citicorp Center
153 East 53rd Street
New York, NY 10022
Telecopier: (212) 446-4900
Any party may give any notice, request, demand, claim or other
communication hereunder using any other means (including ordinary mail or
electronic mail), but no such notice, request, demand, claim or other
communication shall be deemed to have been duly given unless and until it
actually is received by the individual for whom it is intended. Any party may
change the address to which notices, requests, demands, claims and other
communications hereunder are to be delivered by giving the other parties notice
in the manner herein set forth.
7.03. GOVERNING LAW. This Agreement shall be construed in accordance
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with and governed by the internal laws (without reference to choice or conflict
of laws) of the State of California.
7.04. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
----------------
between the parties with respect to the subject matter hereof and supersedes
all prior agreements (including the Letter of Intent, dated May 5, 1998),
understandings and negotiations, both written and oral, between the parties
with respect to the subject matter of this Agreement. Neither this Agreement
nor any provision hereof is intended to confer upon any Person other than the
parties hereto any rights or remedies hereunder.
7.05. COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have
received a counterpart hereof signed by the other parties hereto.
7.06. AMENDMENTS; NO WAIVERS.
----------------------
(a) Any provision of this Agreement may be amended or waived if,
and only if, such amendment or waiver is in writing and signed, in the case
of an amendment, by all parties hereto, or in the case of a waiver, by the
party against whom the waiver is to be effective.
(b) No waiver by a party of any default, misrepresentation or
breach of warranty or covenant hereunder, whether intentional or not, shall be
deemed to extend to any prior or subsequent default, misrepresentation or
breach of warranty or covenant hereunder or affect in any way any rights
arising by virtue of any prior or subsequent occurrence. No failure or delay
by a party in exercising any right, power or privilege hereunder shall operate
as a waiver thereof nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. The rights and remedies herein provided shall be cumulative and
not exclusive of any rights or remedies provided by law.
7.07. SEVERABILITY. If any provision of this Agreement, or the
------------
application thereof to any Person, place or circumstance, shall be held by a
court of competent jurisdiction to be invalid, unenforceable or void, the
remainder of this Agreement and such provisions as applied to other Persons,
places and circumstances shall remain in full force and effect only if, after
excluding the portion deemed to be unenforceable, the remaining terms shall
provide for the consummation of the transactions contemplated hereby in
substantially the same manner as originally set forth at the later of the date
this Agreement was executed or last amended.
7.08. CAPTIONS. The captions herein are included for convenience of
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reference only and shall be ignored in the construction or interpretation
hereof. All referencesto an Article or Section include all subparts thereof.
7.09. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. No party hereto may assign either this Agreement or any of
its rights, interests or obligations hereunder without the prior written
approval of each other party, which approval shall not be unreasonably
withheld.
7.10. RESTRICTIVE LEGEND. The certificates representing the Securities
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will bear the following legends giving notice of restrictions on transfer as
follows:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE 'ACT'), OR UNDER THE
SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED
OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE
SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.
INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE
FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN
FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE ISSUER TO THE EFFECT
THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND
ANY APPLICABLE STATE SECURITIES LAWS.
IN WITNESS WHEREOF, Seller and Purchaser have caused this Agreement to be
executed and delivered by the undersigned duly authorized officers as of the
day and year first above written.
CALIFORNIA AND HAWAIIAN SUGAR COMPANY, INC., A
HAWAII CORPORATION
By: /s/ David G. Koncelik
---------------------
Name: David G. Koncelik
Title: President and Chief Executive Officer
CITICORP VENTURE CAPITAL, LTD.,
A NEW YORK CORPORATION
By: /s/ David Howe
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Name: David Howe
Title: Vice President
Stock Sale Agreement - California and Hawaiian Sugar Co. Inc. and Citicorp Venture Capital Ltd.
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