SECURITIES PURCHASE AGREEMENT dated as of December 30, 1996 (this
"Agreement"), by and between PFIZER, INC., a Delaware corporation (the
"Seller") and NOUVELLE HOLDING GUYOMARC'H S.A. (the "Purchaser").
WHEREAS, the Seller desires to sell to the Purchaser, and the Purchaser
desires to purchase from the Seller, the securities described on Schedule I
hereto of Opta Food Ingredients, Inc., a Delaware corporation (the "Company")
(collectively, and as such numbers of securities may be adjusted pursuant to
any stock splits, stock dividends or other similar events prior to the Closing
Date as contemplated by Section 9.14, the "Securities"), upon the terms and
subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the respective
agreements hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
Definitions
"Agreed Interest Rate" means 5.8125%.
"Closing" shall have the meaning given to such term in Article IV.
"Closing Date" shall have the meaning given to such term in Article IV.
"Encumbrances" means liens, security interests, claims, pledges, options,
rights of first refusal, charges, security agreements, mortgages or any other
encumbrances, restrictions or limitations on use or irregularities in title
thereto.
"Purchase Price Per Share" means $8.50.
"Securities Act" means the Securities Act of 1933, as amended.
ARTICLE II
Purchase and Sale
On the Closing Date, and upon the terms and subject to the conditions
herein set forth, the Seller agrees to sell, assign and transfer to the
Purchaser, free and clear of all Encumbrances, and the Purchaser hereby agrees
to purchase and accept from the Seller, the Securities. On the Closing Date
the Seller shall deliver to the Purchaser (against payment of the Purchase
Price provided for in Article III) certificates representing the Securities,
duly endorsed in blank, or accompanied by stock powers duly executed in blank,
in each case with signatures guaranteed.
ARTICLE III
Purchase Price
SECTION 3.01. Purchase Price. On the Closing Date, the Purchaser shall
pay to the Seller $7,265,579 ($8.50 x 854,774 shares) (the "Purchase Price").
The Purchase Price shall be paid in immediately available funds by wire
transfer.
SECTION 3.02. Adjustment to Purchase Price. If within one (1) year of
the date hereof, the Purchaser sells any of the Securities for cash at any
time during the period beginning after the formal commencement of a tender
offer for all of the outstanding shares of the Company or a self tender offer
for more than 50% of the outstanding shares of the Company (each, a "Tender
Offer") and ending prior to the termination, withdrawal or expiration of such
Tender Offer (the "Tender Offer Period"), then the Purchaser shall pay the
Seller, out of payments received in respect of such Securities, an amount
equal to fifty percent (50%) of the excess of (I) the dollar amount received
for all of the Securities sold during the Tender Offer Period, over (II) (a)
the Purchase Price Per Share multiplied by the total number of Securities sold
during the Tender Offer Period multiplied by the sum of (i) one plus (ii) the
quotient obtained by dividing (A) the product of (x) the sum of Agreed
Interest Rate plus two percent (2%), multiplied by (y) the number of days the
Securities have been held, by (B) 360.
ARTICLE IV
The Closing
SECTION 4.01. Closing Date. Upon the terms and subject to the conditions
herein set forth, the purchase and sale provided for herein (the "Closing")
shall take place on January 7, 1997, or on such other time and date as shall
be fixed by agreement among the parties hereto. The date and time of Closing
are herein referred to as the "Closing Date".
ARTICLE V
Representations and Warranties of the Seller
Seller represents and warrants to the Purchaser as follows:
SECTION 5.01. Title to Securities. The Seller is the beneficial and
record owner of all of the Securities, free and clear of all Encumbrances.
The delivery of the Securities to the Purchaser pursuant to the provisions of
this Agreement will transfer to the Purchaser valid title thereto, free and
clear of all liens and Encumbrances.
SECTION 5.02. Authority of the Seller. The Seller has full right, power
and authority to sell, transfer and deliver to the Purchaser all of the
Seller's right, title and interest in the Securities and to consummate the
transactions contemplated herein. This Agreement has been duly and validly
executed and delivered by the Seller and is the legal, valid and binding
obligation of the Seller enforceable against the Seller in accordance with its
terms. No action, consent or approval by, or filing (except for a Form 144
with respect to certain of the Securities) with, any Federal, state,
municipal, foreign or other court or governmental or administrative body or
agency, or any other regulatory or self-regulatory body, by reason of
authority over the affairs of the Seller, is required to be made by the Seller
in connection with the execution and delivery by the Seller of this Agreement
or the consummation by the Seller of the transactions contemplated hereby.
SECTION 5.03. No Conflicts; No Violations. None of the execution,
delivery or performance of this Agreement by the Seller will (i) conflict with
the Seller's organizational documents or result in any breach of any terms or
provisions of, or constitute a default under, any contract, agreement or
instrument to which the Seller is a party or by which the Seller or its
property is bound or (ii) violate any judgment, order, decree, statute, law,
rule or regulation applicable to the Seller.
SECTION 5.04. Holdings by the Seller. The number of shares of capital
stock of the Company held by the Seller, including those not being sold
pursuant to this Agreement, the dates of the Seller's purchase of such shares
of capital stock of the Company and the corresponding certificate numbers of
any shares of capital stock of the Company, as of the date of this Agreement,
are set forth in Schedule II hereto.
SECTION 5.05. Transferability. Seller acquired certificate no. OF-0066
for 604,774 shares of the Company's common stock on March 11, 1992 and
certificate no. OF-0611 for 250,000 shares of such stock on August 11, 1994.
The Seller has not been an affiliate (as defined in Rule 144(a)(1) under the
Securities Act) of the Company at any time in the last three months. Provided
the Purchaser is not a "dealer" as used in Section 4(1) of the Securities Act
and is not an affiliate of the Company at the time of the Purchaser's resale
of Securities (and for the three month period immediately preceding such
resale), then pursuant to Securities Act Rule 144, the Purchaser will not be
deemed an "underwriter" of the Securities and therefore, (i) pursuant to
subsection (k) of Securities Act Rule 144, the Securities represented by
certificate number OF-0066 shall not require registration under the Securities
Act in order to be resold in a public offering, (ii) pursuant to subsection
(k) of Securities Act Rule 144, the Securities represented by certificate
number OF-0611 shall not require registration under the Securities Act in
order to be resold in a public offering as of August 11, 1997 and (iii)
pursuant to subsection (b) of Securities Act Rule 144, the Securities
represented by certificate number OF-0611 shall not require registration under
the Securities Act in order to be resold prior to August 11, 1997 if sold in
compliance with all of the conditions of Rule 144. In the event that the
Purchaser is an affiliate of the Company (or has been an affiliate of the
Company at any time during the three month period preceding such sale), the
Securities represented by the certificates numbered OF-0066 and OF-0611 shall
not require registration under the Securities Act if resold in accordance with
the volume limitations and other requirements of Rule 144.
ARTICLE VI
Representations and Warranties of the Purchaser
The Purchaser represents and warrants to the Seller as follows:
SECTION 6.01. Authority of the Purchaser. The Purchaser has full right,
power and authority to consummate the transactions contemplated herein. This
Agreement has been duly and validly executed and delivered by the Purchaser
and is the legal, valid and binding obligation of the Purchaser enforceable
against the Purchaser in accordance with its terms. No action, consent or
approval by, or filing (other than those required under Section 13 of the
Securities Exchange Act of 1934) with, any Federal, state, municipal, foreign
or other court or governmental or administrative body or agency, or any other
regulatory or self-regulatory body, by reason of authority over the affairs of
the Purchaser, is required to be made or obtained by the Purchaser in
connection with the execution and delivery by the Purchaser of this Agreement
or the consummation by the Purchaser of the transactions contemplated hereby.
SECTION 6.02. No Conflicts; No Violations. None of the execution,
delivery or performance of this Agreement by the Purchaser will (i) conflict
with the Purchaser's organizational documents or result in any breach of any
terms or provisions of, or constitute a default under, any contract, agreement
or instrument to which the Purchaser is a party or by which the Purchaser or
its property is bound or (ii) violate any judgment, order, decree, statute,
law, rule or regulation applicable to the Purchaser.
ARTICLE VII
Conditions Precedent to Obligations of Purchaser
Notwithstanding any other provisions of this Agreement, the obligation of
the Purchaser to consummate the transactions contemplated hereby shall be
subject to the fulfillment, prior to or at the date hereof, of each of the
following conditions precedent, any of which may be waived by the Purchaser:
SECTION 7.01. Accuracy of Representations and Warranties. The
representations and warranties of the Seller contained in this Agreement
shall, when made and at and as of the date hereof, be true and correct.
SECTION 7.02. Performance by the Seller. The Seller shall have duly
performed and complied in all material respects with all terms, agreements and
conditions required by this Agreement to be performed or complied with by it
prior to or at the Closing Date.
SECTION 7.03. Legal Proceedings. There shall not be any injunction or
temporary restraining order granted by any court of competent jurisdiction in
effect which restrains, prohibits or invalidates the Purchaser's or the
Seller's entry into, or the performance by the Purchaser or the Seller of the
transactions contemplated by, this Agreement.
SECTION 7.04. Opinion. The Purchaser shall receive from ▇▇▇▇▇▇ ▇▇▇▇▇,
counsel to the Seller, an opinion addressed to the Purchaser, dated as of the
date hereof, satisfactory in form and substance to the Purchaser.
ARTICLE VIII
Conditions Precedent to Obligations of the Seller
Notwithstanding any other provision of this Agreement, the obligation of
the Seller to consummate the transactions contemplated hereby shall be subject
to the fulfillment, prior to or at the date hereof, of each of the following
conditions precedent, any of which may be waived by the Seller.
SECTION 8.01. Accuracy of Representations and Warranties. The
representations and warranties of the Purchaser contained in this Agreement
shall, when made and as of the Closing Date, shall be true and correct.
SECTION 8.02. Performance by the Purchaser. The Purchaser shall have
duly performed and complied in all material respects with all terms,
agreements and conditions required by this Agreement to be performed or
complied with by the Purchaser prior to or at the date hereof.
SECTION 8.03. Legal Proceedings. There shall not be any injunction or
temporary restraining order granted by any court of competent jurisdiction in
effect which restrains, prohibits or invalidates the Purchaser's or the
Sellers' entry into, or the performance by the Purchaser or the Seller of the
transactions contemplated by, this Agreement.
ARTICLE IX
Miscellaneous
SECTION 9.01. Reasonable Efforts; Further Actions. The parties hereto
each will use all reasonable efforts to take or cause to be taken all action
and to do or cause to be done all things necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement. If, at any time after the date
hereof, any further action is necessary or desirable to carry out the purposes
of this Agreement or to vest the Purchaser with good and marketable title to
the Securities free and clear of all Encumbrances, the proper officers,
directors, partners or duly authorized representatives of each party to this
Agreement shall take all such necessary action.
SECTION 9.02. Consents. The Purchaser and the Seller will cooperate with
each other in filing any necessary applications, reports or other documents
with, giving any notices to, and seeking any consents from, all regulatory
bodies and all governmental agencies and authorities and all third parties
(including, without limitation, any other stockholders) as may be necessary or
desirable in connection with the consummation of the transactions contemplated
by this Agreement.
SECTION 9.03. Amendment and Waiver; Remedies Cumulative. (a) This
Agreement may not be amended or supplemented except by an instrument in
writing signed by the Purchaser and the Seller. Any term or provision of this
Agreement may be waived, but only in writing by the party which is entitled to
the benefit thereof.
(b) The rights and remedies of a party under this Agreement shall be
cumulative and not exclusive of any rights or remedies which such party would
otherwise have hereunder or at law or in equity or by statute, and no failure
or delay by such party in exercising any right or remedy shall impair any such
right or remedy or operate as a waiver of such right or remedy, nor shall any
single or partial exercise of any power or right preclude its other or further
exercise or the exercise of any other power or right. The waiver by any party
hereto of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any preceding or succeeding breach and no failure by
either party to exercise any right or privilege hereunder shall be deemed a
waiver of such party's rights or privileges hereunder or shall be deemed a
waiver of such party's rights to exercise the same at any subsequent time or
times hereunder.
SECTION 9.04. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one instrument. It shall not be necessary for each
party to sign each counterpart so long as every party has signed at least one
counterpart.
SECTION 9.05. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been given if delivered
personally or sent by registered or certified mail (return receipt requested),
postage prepaid, or by telecopy to the parties to this Agreement at the
following addresses or at such other address for a party as shall be specified
by like notice:
If to the Seller, at:
Pfizer, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Purchaser, at:
Nouvelle Holding Guyomarc'h S.A.
▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy:
and to:
White & Case
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
All such notices and communications shall be deemed to have been received
on the date of delivery, on the date that the telecopy is confirmed as having
been received or on the third business day after the mailing thereof, as the
case may be.
SECTION 9.06. Assignment. Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable by any party to this Agreement without the prior written consent of
the other party, and any attempt to assign any right, remedy, obligation or
liability arising hereunder without such consent shall be void.
SECTION 9.07. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, written and oral.
SECTION 9.08. Binding Effect; Parties in Interest. This Agreement shall
be binding upon and incurred to the benefit of the parties to this Agreement
and their respective successors and permitted assigns, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any rights, benefits or remedies of any nature whatsoever under or by
reason of this Agreement.
SECTION 9.09. Expenses; Attorney Fees. Each of the parties hereto shall
pay its own costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby, including, without limitation, the fees
and expenses of counsel, irrespective of when incurred. Any stamp duty,
transfer tax or other similar cost connected with the transfer of the
Securities to the Purchaser shall be paid by the Seller.
SECTION 9.10. Applicable Law; Waiver of Jury Trial. (a) This Agreement
shall be governed by and construed in accordance with the laws of the State of
New York without reference to any applicable principles of conflict of laws to
the extent that the application of the laws of another jurisdiction would be
required thereby.
(b) Each party waives, to the fullest extent permitted by applicable
law, any right it may have to a trial by jury in respect of any litigation
arising out of or relating to this Agreement. Each party (i) certifies that
no representative, agent or attorney of another party has represented,
expressly or otherwise, that such other party would not, in the event of
litigation, seek to enforce the foregoing waiver and (ii) acknowledges that it
has been induced to enter into this Agreement by, among other things, the
mutual waivers and certifications set forth in this Section 9.10.
SECTION 9.11. Article and Section Headings. The article, section and
other headings contained in this Agreement are for reference purposes only and
shall not affect the meaning or interpretation of this Agreement.
SECTION 9.12. Termination. This Agreement may be terminated at any time
prior to the Closing (i) by the mutual consent of the Purchaser and the Seller
and (ii) by any party hereto if all of the conditions to the Closing shall not
have been fulfilled or waived (other than as a result of a breach of this
Agreement by the terminating party) and as a result the Closing Date shall not
have occurred on or before January 15, 1997.
SECTION 9.13. Specific Enforcement. Each of the parties hereto
acknowledges and agrees that in the event of any breach of this Agreement, the
non-breaching party would be irreparably harmed and could not be made whole by
monetary damages. It is accordingly agreed that the parties hereto will waive
the defense in any action for specific performance that a remedy at law would
be adequate and that the parties hereto, in addition to any other remedy to
which they may be entitled at law or in equity, shall be entitled to an
injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically the terms and provisions hereof without
the necessity of proving actual damage or securing or posting any bond or
providing prior notice.
SECTION 9.14. Recapitalization, Exchanges, etc., Affecting Securities.
The provisions to this Agreement shall apply, to the full extent set forth
herein with respect to the Securities, to any and all shares of capital stock
of Company or any successor or assign of Company (whether by merger,
consolidation, sale of assets or otherwise) which may be issued in respect of,
in exchange for, or in substitution of the Securities, by reason of any stock
dividend, stock split, stock issuance, reverse stock split, combination,
recapitalization, reclassification, merger, consolidation or otherwise. Upon
the occurrence of any such events, amounts hereunder shall be appropriately
adjusted if necessary.
IN WITNESS WHEREOF, each party hereto has executed this Agreement as of
the day and year first above written.
PFIZER, INC.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. Telling
Name: ▇▇▇▇▇▇▇▇▇ ▇. Telling
Title: Vice President
NOUVELLE HOLDING GUYOMARC'H S.A.
By /s/ ▇. ▇▇▇▇▇▇▇
Name: ▇. ▇▇▇▇▇▇▇
Title: Chairman
Schedule I
Number of Shares Certificate Number Class of Capital Stock Par Value Date
1. 604,774 OF-0066 Common $.01 3-11-92
2. 250,000 OF-0611 Common $.01 8-11-94
Schedule II
Number of Shares Certificate Number Original Purchase
Date
604,774 OF-0066 3-11-92
250,000 OF-0611 8-11-94
99,271 OF-1273 8-8-95
