STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") dated as of November 3, 1997
(the "Effective Date"), by and among Food For Health Co., Inc., an Arizona
corporation, having its principal office at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Company"), AMCON Distributing Company, a Delaware
corporation, having its principal office at 10228 "L" Street, Omaha, Nebraska
68127-1027 ("Purchaser"), FFH Holdings, Inc., a Delaware corporation, sole
shareholder of the Company, having its principal office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Shareholder") and Prudential Venture Partners
II, L.P., a New York limited partnership having its principal office at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Principal Shareholder").
RECITALS:
A. Company is in the business of distributing food products to
retailers throughout the western United States.
B. Shareholder owns all of the issued and outstanding shares of
capital stock in Company.
C. Principal Shareholder owns a majority of the issued and
outstanding capital stock of Shareholder.
D. Purchaser desires to acquire the ongoing business of Company and
has agreed to purchase all of the issued and outstanding shares of capital
stock in Company from Shareholder subject to the terms and conditions of this
Agreement.
AGREEMENT:
In consideration of the mutual covenants and agreements hereinafter set
forth, the parties hereby agree as follows:
1. PURCHASE AND SALE OF STOCK. Subject to and upon the terms and
conditions set forth in this Agreement, the Shareholder will sell, transfer,
convey, assign and deliver to Purchaser, and Purchaser will purchase, at the
Closing hereunder, all of the outstanding stock of the Company (the "Shares"),
free and clear of all liabilities, obligations, liens and encumbrances.
2. PURCHASE PRICE. In consideration of the transfer and delivery of
the Shares by Shareholder to Purchaser, and in reliance upon the
representations and warranties made in this Agreement by Company and
Shareholder, Purchaser will pay to Shareholder at the Closing, by wire
transfer, a total purchase price of the sum of $4,400,000.00.
2.1. REIMBURSEMENT PAYMENT. As an accommodation to Purchaser,
Shareholder agrees that it will execute Form 8023-A and otherwise cooperate
with Purchaser in Purchaser's election to treat this transaction as a sale of
assets under I.R.C. Section 338(h)(10), conditioned upon and in consideration
for payment by Purchaser, simultaneously with Shareholder's execution of Form
8023-A, of an amount that is certified by Shareholder's and Purchaser's
accountants to be the additional tax burden imposed on Shareholder by any
taking authority from the election by Purchaser under I.R.C. Section
338(h)(10). In addition, if any taxing authority subsequently assesses any
additional taxes that increase the additional tax burden imposed on
Shareholder as a result of the I.R.C. Section 338(h)(10) election, Purchaser
shall indemnify Shareholder for such additional taxes (including any penalties
and interest). Purchaser agrees that no representative of Shareholder shall
have any authority to execute the Form 8023-A on behalf of Shareholder without
the consent of ▇▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇ or their successors.
3. CLOSING. The Closing shall take place on the later to occur of
(i) 12:00 p.m. local time, on or before November 10, 1997, or (ii) such other
date as Purchaser and Company may agree at the offices of ▇▇▇▇▇ and Roca LLP,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or such other time and
place as the parties may agree upon. The day on which the Closing actually
occurs shall be referred to herein as the "Closing Date".
4. SHAREHOLDER' OBLIGATIONS AT CLOSING; FURTHER ASSURANCES.
4.1 DELIVERIES. At the Closing, Company and Shareholder will
deliver to Purchaser:
4.1.1 duly endorsed, issued and executed stock
certificates representing the Shares, free and clear of all liens,
encumbrances and rights in favor of third parties, together with assignments
separate from certificates duly executed by the Shareholder;
4.1.2 the Shareholder's Certificate, Opinion of Seller's
Counsel and Opinion of Principal Shareholder's Counsel, described in Section
12 below; and
4.1.3 all other documents required to be delivered to
Purchaser under the provisions of this Agreement or otherwise necessary to
give effect to the transactions contemplated by this Agreement.
4.2 OTHER ACTION. At any time and from time to time either
prior to or after the Closing, at Purchaser's request and without further
consideration, the Company and Shareholder will execute and deliver such other
instruments of sale, transfer, assignment and confirmation and take such
action as Purchaser may reasonably deem necessary or desirable in order to
more effectively convey to Purchaser, and to confirm Purchaser's title to, the
Shares, to put Purchaser in actual possession and operating control thereof
and of the business of Company and to assist Purchaser in exercising all
rights with respect thereto, provided that if Purchaser requires any
representative of Principal Shareholder to travel to Phoenix after the Closing
pursuant to this section in furtherance of obligations of Principal
Shareholder not agreed to prior to the Closing Date, Purchaser shall reimburse
the reasonable travel expenses of such representative.
5. REPRESENTATIONS AND WARRANTIES BY COMPANY AND SHAREHOLDER.
5.1 SHAREHOLDER OWNERSHIP OF SHARES. Shareholder represents and
warrants that: (a) it is the lawful record and beneficial owner of all of the
Shares of the Company's capital stock, with absolute right to sell them and
with full title thereto, free and clear of any liens, claims, encumbrances or
restrictions of any kind; (b) all of the Shares are validly issued and
outstanding, fully paid and nonassessable; there are no undisclosed interests,
present or future, in the Shares, nor does it know of any assertion of such an
interest, or of any facts or circumstances which would give any person any
such present or future interest or entitle any person to assert such an
interest; (c) there are no provisions of any contract, indenture, agreement or
other instrument to which Shareholder is a party or to which the Shares are
subject which would prevent, limit, or condition the sale or transfer of the
Shares to the Purchaser; (d) neither the execution, delivery nor performance
of this Agreement by Company or Shareholder will, with or without the giving
of notice or the passage of time, or both, conflict with, result in a default,
right to accelerate or loss of rights under, or result in the creation of any
lien, charge or encumbrance pursuant to, any provision of any law, rule or
regulation or any order, judgment or decree to which Shareholder is a party or
by which it may be bound or affected; (e) Shareholder has the full power and
authority to enter into this Agreement, to make the representations,
warranties and covenants contained herein and to carry out the transactions
contemplated hereby, and all proceedings required to be taken by Shareholder
to authorize the execution, delivery and performance of this Agreement and the
agreements relating hereto have been properly taken, and this Agreement
constitutes the valid and binding agreement of Shareholder; and (f) neither
the execution and the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will (A) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge, or
other restriction of any government, governmental agency, or court to which
the Shareholder is subject or, any provision of its charter or bylaws or (B)
conflict with or result in a breach of, constitute a default under, result in
the acceleration of, create in any party the right to accelerate, terminate,
modify, or cancel, or require any notice under any agreement, contract, lease,
license, instrument, or other arrangement to which Shareholder is a party or
by which it is bound or to which any of its assets is subject.
5.2 COMPANY ORGANIZATION, STANDING AND QUALIFICATION. Company
represents and warrants that Company is a corporation duly organized, validly
existing and in good standing under the laws of Arizona; Company has full
corporate power and authority to enter into this Agreement and the related
agreements referred to herein and to carry out the transactions contemplated
by this Agreement. Purchaser has been provided with true and complete copies
of Company's Articles of Incorporation and all amendments thereto and the
Bylaws of Company as presently in effect, certified as true and correct by
Company's Secretary.
5.3 NO FRAUDULENT WRITTEN INFORMATION PROVIDED BY SHAREHOLDER.
Shareholder represents and warrants that, to the best of the Shareholder's
knowledge, the written factual information provided by Shareholder to
Purchaser regarding the Company is free of intentional fraudulent
misrepresentation.
5.4 NO FRAUDULENT WRITTEN INFORMATION PROVIDED BY COMPANY.
Company represents and warrants that, to the best of Company's knowledge, the
written factual information provided by Company to Purchaser regarding the
Company is free of intentional fraudulent misrepresentation.
5.5 NO KNOWINGLY INACCURATE WRITTEN INFORMATION PROVIDED BY
SHAREHOLDER. Shareholder represents and warrants that, to the best of
Shareholder's knowledge, the written factual information provided by
Shareholder to Purchaser is not inaccurate in any material respect. The
representations and warranties of this subsection 5.5 shall survive for 60
days after the Closing.
5.6 NO KNOWINGLY INACCURATE WRITTEN INFORMATION PROVIDED BY
COMPANY. Company represents and warrants that, to the best of Company's
knowledge, the written factual information provided by Company to Purchaser is
not inaccurate in any material respect.
5.7 NO SHAREHOLDER KNOWLEDGE OF UNDISCLOSED MATERIAL ADVERSE
MATTERS. Shareholder represents and warrants that Shareholder is not aware of
any information that has not been disclosed to Purchaser that would have a
material adverse effect upon the Company, other than information generally
known in the industry. The representations and warranties of this subsection
5.7 shall survive for 60 days after the Closing.
5.8 NO COMPANY KNOWLEDGE OF UNDISCLOSED MATERIAL ADVERSE
MATTERS. Company represents and warrants that Company is not aware of any
information that has been disclosed to Purchaser that would have a material
adverse effect upon the Company, other than information generally known in the
industry.
5.9 BROKER'S FEES. Company represents and warrants that Company
is not obligated to pay any broker's or other finder's fees to any third party
in connection with the transactions contemplated by this Agreement.
6. REPRESENTATIONS AND WARRANTIES BY PURCHASER. Purchaser represents
and warrants to the Shareholder as follows:
6.1 ORGANIZATION. Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has full power and authority to enter into this Agreement and the related
agreements referred to herein and to carry out the transactions contemplated
by this Agreement and to carry on its business as now being conducted and to
own, lease or operate its properties.
6.2 AUTHORIZATION AND APPROVAL OF AGREEMENT. All proceedings or
actions required to be taken by Purchaser relating to the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby shall have been taken at or prior to the Closing.
6.3 EXECUTION, DELIVERY AND PERFORMANCE OF AGREEMENT. Neither
the execution, delivery nor performance of this Agreement by Purchaser will,
with or without the giving of notice or the passage of time, or both, conflict
with, result in a default, right to accelerate or loss of rights under, or
result in the creation of any lien, charge or encumbrance pursuant to, any
provision of Purchaser's Certificate of Incorporation or Bylaws or any
franchise, mortgage, deed of trust, lease, license, agreement, understanding,
law, ordinance, rule or regulation or any order, judgment or decree to which
Purchaser is a party or by which it may be bound or affected except for
breaches of agreements that will not affect Shareholder's right to receive
payment of the Purchase Price and will not have a material adverse effect upon
the transaction contemplated by this Agreement. Purchaser has full power and
authority to enter into this Agreement and to carry out the transactions
contemplated hereby, and all proceedings required to be taken by Purchaser to
authorize the execution, delivery and performance of this Agreement and the
agreements relating hereto have been properly taken and this Agreement
constitutes a valid and binding obligation of Purchaser.
6.4 LITIGATION. There is no legal action, suit, arbitration,
governmental investigation or other legal or administrative proceeding, nor
any order, decree or judgment in progress, pending or in effect, or to the
knowledge of Purchaser threatened, against or relating to Purchaser in
connection with or relating to the transactions contemplated by this
Agreement, and Purchaser does not know or have any reason to be aware of any
basis for the same.
6.5 BROKER'S FEES. Purchaser is not obligated to pay any
broker's or other finder's fees to any third party in connection with the
transactions contemplated by this Agreement.
7. CONDUCT OF BUSINESS PRIOR TO CLOSING.
7.1 CONSENTS AND APPROVALS. After the execution of this
Agreement and prior to the Closing, Purchaser, Shareholder and Company shall
undertake to use their best efforts to obtain as quickly as reasonably
possible all approvals necessary for the transactions contemplated by this
Agreement from all necessary regulatory authorities (the "Regulatory
Authorities"), Shareholder and other parties, and to comply with all
applicable laws which may be applicable to the transactions contemplated by
this Agreement.
7.2 CONDUCT OF BUSINESS IN ORDINARY COURSE. Prior to the
Closing, Company and Shareholder shall conduct the business and affairs of
Company only in the ordinary course of business and consistent with its prior
practice and shall maintain, keep and preserve its assets and properties in
good condition and repair and maintain insurance thereon in accordance with
present practices, and Company and Shareholder will use their best efforts (i)
to preserve the business and organization of Company intact, (ii) to keep
available to Purchaser the services of Company's present officers, employees,
agents and independent contractors, (iii) to preserve for the benefit of
Purchaser the goodwill of Company's suppliers, customers, landlords and others
having business relations with it, and (iv) to use reasonable efforts in
obtaining the consent of any party whose consent may be required by reason of
the transactions contemplated hereby. Without limiting the generality of the
foregoing, prior to the Closing Company will not, without Purchaser's prior
written approval:
7.2.1 change its Articles of Incorporation or Bylaws or
merge or consolidate or obligate itself to do so with or into any other
entity;
7.2.2 enter into any contract, agreement, commitment or
other understanding or arrangement except in the ordinary course of business
or as contemplated by this Agreement; or
7.2.3 perform, take any action or incur or permit to exist
any of the acts, transactions, events or occurrences of the type described in
this Agreement which would have been inconsistent with the representations and
warranties set forth therein had the same occurred prior to the date hereof.
7.3 NOTICE OF CHANGES. Company shall give Purchaser prompt
written notice of any change in any of the information contained in the
representations and warranties made in Section 5 or elsewhere in this
Agreement or the Schedules referred to herein which occurs prior to the
Closing.
7.4 NO MATERIAL CHANGES IN BUSINESS. Company shall, and
Shareholder will cause Company to, consult with Purchaser with respect to
material changes in the conduct of the business of the Company; provided,
however, that nothing contained in this Section 7.4 shall require Company to
take or fail to take any action that, in Company's reasonable and commercially
prudent judgment, is likely to give rise to a substantial penalty or a claim
for damages by any third party against Company, or is likely to result in
losses to Company, or is otherwise likely to prejudice in any material respect
or interfere with the conduct of Company's business and operations in the
ordinary course consistent with prior practice, or is likely to result in a
breach by Company of any of its representations, warranties or covenants
contained in this Agreement (unless any such breach is first waived in writing
by Purchaser).
7.5 NO ENCUMBRANCES. From the date of this Agreement, Company
and the Shareholder shall take no action that would encumber or restrict the
Shares or their sale or transfer, except any action by Company to enforce its
rights hereunder.
7.6 NO OPTIONS. From the date of this Agreement, Company and
the Shareholder shall not grant any options or other rights or interests in
the Shares.
7.7 NO ACQUISITION. Prior to the day after the deadline by
which the Closing is to occur under this Agreement, neither the Company nor
Shareholder will cause or permit any representative of them to (i) solicit,
initiate, or encourage the submission of any proposal or offer from any person
relating to the acquisition of any capital stock or other voting securities,
or any portion of the assets, of the Company (including any acquisition
structured as a merger, consolidation, or share exchange) or (ii) participate
in any discussion or negotiations regarding, furnish any information with
respect to, assist or participate in, or facilitate in any other manner any
effort or attempt by any Person to do or seek any of the foregoing. Neither
the Company, Shareholder nor Principal Shareholder will vote in favor of any
such acquisition, whether structured as a merger, consolidation, or share
exchange or otherwise. The Company will notify Purchaser immediately if any
person makes any proposal, offer, inquiry, or contact with respect to any of
the foregoing.
7.8 ACCESS. Company and Shareholder will permit and cause each
of the representatives of Purchaser to have full access to all premises,
properties, personnel, books, records (including Tax records), contracts, and
documents of or pertaining to Company.
7.9 FEES AND BONUSES RELATING TO TRANSACTION. Any broker's,
legal and other fees relating to the transaction contemplated by this
Agreement, other than legal and accounting fees of Purchaser's attorneys and
accountants, shall be paid either by Shareholder or by Principal Shareholder
and shall not be paid by Company, provided that bonuses to employees of
Company may be paid in amounts determined by Shareholder, either at the normal
payroll before Closing or on the Closing Date, as long as Shareholder pays to
Purchaser immediately at Closing an amount equal to such bonuses, payroll and
other taxes, interest charges on debt incurred to pay such bonuses, and all
other expenses related to such bonuses (collectively, "Bonus Costs") and as
long as Bonus Costs are booked as a receivable from Shareholder for the period
ending November 9, 1997.
8. INVESTIGATION, CONFIDENTIALITY AND EXCLUSIVITY.
8.1 INVESTIGATIONS. Subject to the restrictions of Section 8.2,
Company consents to Purchaser commencing a due diligence investigation of the
operations and financial status of Company. Upon reasonable notice and during
regular business hours, Company will give Purchaser and Purchaser's attorneys,
accountants and other representatives full access to Company's officers,
directors, employees, independent contractors, counsel, and independent
accountants and all properties, documents, contracts, books and records of
Company and will furnish Purchaser with copies of such documents (certified by
Company's officers if so requested) and with such information with respect to
the affairs of Company (all of which are collectively referred to as
"Information") as Purchaser may reasonably request from time to time,
including without limitation all books and records, references and customer
contracts. Purchaser may rely upon the Information without independently
verifying it, and Purchaser does not assume responsibility for its accuracy or
completeness, whether or not Purchaser independently verifies the Information.
Any such furnishing of such Information to Purchaser or any investigation by
Purchaser shall not affect Purchaser's right to rely on any representations
and warranties made in this Agreement or in connection herewith or pursuant
hereto. Subject to the restrictions of Section 8.2, Purchaser shall provide
to Company all information reasonably necessary to permit Company to evaluate
Purchaser's ability to perform under this Agreement.
8.2 CONFIDENTIALITY. Shareholder, Company and Purchaser agree
to keep the existence and terms of this Agreement confidential and to keep
confidential all information and communications concerning this Agreement,
including the fact that any meetings or discussions between Purchaser and
Company took place or were scheduled to take place, except to the extent
necessary or appropriate in preparation for or otherwise in connection with
any applicable franchise regulations. The parties contemplate that by virtue
of this Agreement, each may come into possession of the other's confidential
financial and other business information, and each party agrees that it shall
keep such information confidential and shall not engage in any activities
which would or could violate the Confidentiality and Non-Disclosure Agreement,
a copy of which is attached to this Agreement as Exhibit 8.2, and an original
of which has been signed by each party prior to or contemporaneously with its
execution and delivery of this Agreement. Each party shall make no disclosure
regarding any other party to this Agreement to any person or entity unless it
shall have first obtained and delivered to such other party, as applicable,
such person's or entity's signature on an original of the attached
Confidentiality and Non-Disclosure Agreement and also obtained such other
party's written approval for such disclosure.
8.3 PRESS RELEASES. Any public announcement of the pendency of
the transactions embodied in this Agreement shall be made only upon receiving
the prior written consent from all parties as to the necessity for the
announcement and the text to be used.
8.4 DISPOSITION OF PROPERTY UPON TERMINATION. Upon expiration
or earlier termination of this Agreement for any reason, each party shall
deliver to the other all tangible forms of confidential information, trade
secrets and other proprietary property of the other parties which is in its
possession or control, and shall certify to the other parties in writing that
it has no other such property in its possession or control, and that it has no
knowledge of the possession by others of any such property of the other
parties previously in its possession or control.
9. DIRECTOR AND SHAREHOLDER AUTHORIZATIONS.
9.1 BY COMPANY. At or prior to the Closing, Company will
deliver to Purchaser a copy of the resolutions of the Board of Directors and
the resolutions or consents of the Shareholder of Company, together with any
and all required resolutions or consents of shareholders of Shareholder,
approving the execution and delivery of this Agreement and the consummation of
all of the transactions contemplated hereby, duly certified by an officer of
Company.
9.2 BY PURCHASER. At or prior to Closing, Purchaser will
deliver of Shareholder a copy of the resolutions or consents of the Board of
Directors of Purchaser, together with any and all resolutions or consents of
shareholders of Purchaser, approving the execution and delivery of this
Agreement and the consummation of all of the transactions contemplated hereby,
duly certified by an officer of Purchaser.
10. MATERIALITY. Unless otherwise stated with respect to a specific
provision in this Agreement, the parties agree that materiality shall be
interpreted so as to exclude any single matter involving less than $60,000 and
matters involving less than $120,000 in the aggregate.
11. CONDITIONS TO EACH PARTY'S PERFORMANCE. Any provision of this
Agreement to the contrary notwithstanding, no party shall be under any
obligation to close the transactions contemplated by this Agreement unless the
following conditions shall be satisfied on or prior to the Closing Date:
11.1 APPROVAL OF AGREEMENT. The Board of Directors and
shareholders of Purchaser and the Board of Directors and shareholders of
Company shall have approved of this Agreement and related documents.
11.2 338(H)(10) ELECTION. Purchaser shall use good faith
efforts to provide to Shareholder's accountants all information reasonably
necessary to permit Shareholder's accountants to determine the incremental tax
liability to Shareholder as a result of Purchaser's election under I.R.C.
338(h)(10) (including without limitation all allocations of purchase price
among assets necessary for such determination). Shareholder shall use good
faith efforts to permit Purchaser's accountants to participate in the
determination of the incremental tax liability and to cause its accountants to
share with Purchaser's accountants the basis for their determination of such
incremental tax liability. Shareholder shall file a request for prompt
assessment under I.R.C. Section 6501(c) at the time of the filing of its final
income tax returns.
12. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS. All obligations
of Purchaser hereunder are subject, at the option of Purchaser, to the
fulfillment of each of the following conditions at or prior to the Closing,
and Company and Shareholder shall exert their best efforts to cause each such
condition to be so fulfilled on or prior to the Closing Date, or such other
date as Purchaser and Company may agree.
12.1 REPRESENTATIONS. All representations and warranties of
Company and the Shareholder contained herein or in any document delivered
pursuant hereto shall be true and correct in all material respects when made
and shall be deemed to have been made again at and as of the date of the
Closing, and shall then be true and correct in all material respects except
for changes in the ordinary course of business after the date hereof in
conformity with the covenants and agreements contained herein.
12.2 COVENANTS. All covenants, agreements and obligations
required by the terms of this Agreement to be performed by Company or by
Shareholder at or before the Closing shall have been duly and properly
performed in all material respects, and all documents required to be delivered
to Purchaser at or prior to the Closing shall have been so delivered.
12.3 DILIGENCE. Purchaser shall have completed its due
diligence by November 7, 1997 with results satisfactory to Purchaser, provided
that Purchaser shall also be satisfied with the results of due diligence with
respect to any material events or developments arising subsequent to November
7, 1997 and prior to Closing.
12.4 INTERIM FINANCIAL STATEMENTS. Purchaser shall be provided
by Company with an unaudited balance sheet of Company as at the month prior to
Closing for the period then ended.
12.5 CERTIFICATE. There shall be delivered to Purchaser a
certificate executed by the President and Secretary of Company and by each
Shareholder, individually, dated the date of the Closing, certifying that the
conditions set forth in this Section 12 have been fulfilled.
12.6 GOOD STANDING. There shall be delivered to Purchaser a
certificate issued by the Arizona Corporate Commission attesting to the
corporate existence and good standing of Company in the state of Arizona.
12.7 CONGRESS FINANCIAL CONSENT. Either there shall be
delivered to Purchaser written confirmation from Congress Financial in form
acceptable to Purchaser, that Purchaser shall be entitled, without penalty,
expense or any adverse effect, to purchase the Shares pursuant to this
Agreement, or Purchaser shall have waived this condition by prepaying or
otherwise discharging (at its sole expense) all obligations of Company and
Shareholder to Congress relating to the Company's business.
12.8 OPINION. Purchaser shall have received an opinion of
Company's counsel (substantially in the form attached) and an opinion of
Principal Shareholder's Counsel (relating to valid existence authorization and
lack of conflicts), dated the date of the Closing, in form and substance
satisfactory to counsel for Purchaser.
13. CONDITIONS PRECEDENT TO COMPANY'S AND SHAREHOLDER' OBLIGATIONS.
All obligations of Company and Shareholder at the Closing are subject, at the
option of Company, to the fulfillment of each of the following conditions at
or prior to the Closing, and Purchaser shall exert its best efforts to cause
each such condition to be so fulfilled:
13.1 REPRESENTATIONS. All representations and warranties of
Purchaser contained herein or in any document delivered pursuant hereto shall
be true and correct in all material respects when made and as of the Closing.
13.2 COVENANTS. All obligations required by the terms of this
Agreement to be performed by Purchaser at or before the Closing shall have
been duly and properly performed in all material respects.
13.3 CERTIFICATE. There shall be delivered to Shareholder a
certificate executed by an officer of the Purchaser, dated the date of the
Closing, certifying that the conditions set forth in this Section 13 have been
fulfilled.
13.4 CONGRESS FINANCIAL CONSENT. Purchaser shall at its
election have assumed or discharged all of Shareholder's obligation to
Congress Financial and there shall have been delivered to Shareholder written
confirmation from Congress Financial in form acceptable to Shareholder, either
that Purchaser shall be entitled, without penalty, expense or any adverse
effect, to effect the transactions contemplated by this Agreement, and that
Shareholder shall be released at Closing from all obligations to Congress,
whether under its guarantee or otherwise, or that Purchaser has prepaid or
otherwise discharged (at its sole expense) all obligations of Company and
Shareholder to Congress relating to the Company's business.
13.5 OPINION. Company shall have received an opinion of
Purchaser's counsel, dated the date of the Closing in form and substance
satisfactory to counsel for Company.
13.6 PURCHASE PRICE. Shareholder shall have received at Closing
payment of the Purchase Price in accordance with Section 2.
14. NOTICES. Any and all notices, offers, demands or other
communications required or permitted to be given under any of the provisions
of this Agreement shall be in writing and shall be deemed to have been duly
given when personally delivered or on the tenth business day after mailed by
first class registered or certified United States mail, return receipt
requested, addressed to the parties at the addresses set forth above (or at
such other address as any party may specify by notice to all other parties
given as aforesaid). Copies of any notice sent to Company, Shareholder or
Principal Shareholder must be sent to: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq., ▇▇▇▇▇ and Roca
LLP, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Esq., ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Citicorp Center, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇. Copies of any notice sent to Purchaser must be sent to: ▇▇▇▇
▇▇▇▇▇▇, Esq., ▇▇▇▇, ▇▇▇▇▇▇ & Roeper, ▇▇▇ "▇" ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
15. LEGAL AND OTHER COSTS.
15.1 DEFAULTS. In the event that any party (the "Defaulting
Party") defaults in his, her or its obligations under this Agreement and, as a
result thereof, the other party (the "Non-Defaulting Party") seeks to legally
enforce his, her or its rights hereunder against the Defaulting Party, then,
in addition to all damages and other remedies to which the Non-Defaulting
Party is entitled by reason of such default, the Defaulting Party shall
promptly pay to the Non-Defaulting Party an amount equal to all costs and
expenses (including reasonable attorneys' fees and costs) paid or incurred by
the Non-Defaulting Party in connection with such enforcement.
15.2 EXPENSES. Each party shall be solely responsible for its
respective expenses incurred in regard to the negotiation and drafting of this
Agreement as well as the obligations to be undertaken by the respective
parties in accordance with this Agreement and the proposed transactions
described herein, provided, however, that no fees or costs relating to this
transaction, including legal fees, accountants' fees and broker's fees, shall
be paid by Company or out of assets owned by the Company, but shall instead be
paid either by Shareholder or Principal Shareholder.
16. MISCELLANEOUS.
16.1 This writing constitutes the entire agreement of the
parties with respect to the subject matter hereof and may not be modified,
amended or terminated except by a written agreement specifically referring to
this Agreement signed by all of the parties hereto.
16.2 No waiver of any breach or default hereunder shall be
considered valid unless in writing and signed by the party giving such waiver,
and no such waiver shall be deemed a waiver of any subsequent breach or
default of the same or similar nature.
16.3 This Agreement shall be binding upon and inure to the
benefit of each party hereto, its, his or her successors, assigns, heirs and
personal representatives.
16.4 The paragraph headings contained herein are for the
purposes of convenience only and are not intended to define or limit the
contents of said paragraphs.
16.5 Each party hereto shall cooperate, shall take such further
action and shall execute and deliver such further documents as may be
reasonably requested by any other party in order to carry out the provisions
and purposes of this Agreement.
16.6 Shareholder will pay all sales, transfer and documentary
taxes, if any, payable in connection with the sale, conveyances, assignments,
transfers and deliveries to be made to Purchaser hereunder.
16.7 This Agreement may be executed in one or more counterparts,
all of which taken together shall be deemed one original.
16.8 This Agreement and all amendments thereof shall be governed
by and construed in accordance with the laws in force in the State of Arizona.
Venue for any litigation arising thereunder shall lie in the state and federal
courts situated in either Maricopa County, Arizona or San Diego County,
California.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the day and year first above written.
FOOD FOR HEALTH, CO., INC., an Arizona corporation
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇, President
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Assistant Secretary
AMCON DISTRIBUTING COMPANY, a Delaware corporation
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Its: Chairman of the Board of Directors
FFH HOLDINGS, INC., a Delaware corporation
By: ▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇, Chairman
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇, President
PRUDENTIAL VENTURE PARTNERS II, L.P.
By: Prudential Equity Investors, Inc.
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Its General Partner
By: Cornerstone Equity Investors, L.L.C.
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Its Investment Advisor
By: ▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇, Managing Director