EXHIBIT 10.40
STOCK PURCHASE AGREEMENT
DATED MAY 30, 1998
BY AND AMONG
TRISTAR CORPORATION
AND
TRANSVIT DISTRIBUTION CORPORATION
COVERING THE PURCHASE
OF ALL OF THE CORPORATE CAPITAL OF
TRISTAR DO BRASIL COSMETICOS, LTDA.
TABLE OF CONTENTS
1. General Definitions.................................................. 1
1.1 Affiliate...................................................... 1
1.2 Governmental Authority......................................... 2
1.3 Governmental Requirement....................................... 2
1.4 Person......................................................... 2
1.5 Section........................................................ 2
1.6 Taxes.......................................................... 2
2. Purchase and Sale of the Stock; Closing Date......................... 2
2.1 Purchase and Sale.............................................. 2
2.2 Delivery and Endorsement of Certificates....................... 2
2.3 Closing Date................................................... 2
4. Representations and Warranties of Seller. .......................... 3
4.1 Incorporation.................................................. 3
4.2 Share Capital.................................................. 3
4.3 Subsidiaries................................................... 3
4.4 Effect of Agreement............................................ 3
4.5 Authorization.................................................. 3
4.6 Brokers and Finders............................................ 3
4.7 Debt of Target................................................. 3
5. Representations and Warranties of Purchaser.......................... 3
5.1 Incorporation.................................................. 4
5.2 Authorization.................................................. 4
5.3 Brokers and Finders............................................ 4
6. Conditions to Obligations of Purchaser............................... 4
6.1 Accuracy of Representations and Warranties and Fulfillment
of Covenants................................................... 4
6.2 No Governmental Actions........................................ 4
6.3 Approval of Counsel............................................ 4
6.4 Transfer and Assignment Documents.............................. 4
7. Conditions Precedent to Obligations of Seller........................ 4
7.1 Accuracy of Representations and Warranties and Fulfillment
of Covenants................................................... 4
7.2 Delivery of Purchase Price..................................... 5
7.3 Approval of Counsel............................................ 5
8. Expenses............................................................. 5
9. Further Actions...................................................... 5
10. Arbitration.......................................................... 5
11. Option to Repurchase; Exercise Price; Repurchase Closing Date........ 5
12. Notices.............................................................. 5
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13. General Provisions................................................... 6
13.1 Governing Law; Interpretation; Section Headings................ 6
13.2 Severability................................................... 6
13.3 Entire Agreement............................................... 7
13.4 Binding Effect................................................. 7
13.5 Assignment..................................................... 7
13.6 Amendment; Waiver.............................................. 7
13.7 Counterparts................................................... 7
13.8 Telecopy Execution and Delivery................................ 7
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered into
as of the 30th day of May, 1998, by and among TRISTAR CORPORATION, a Delaware
corporation ("SELLER") and TRANSVIT DISTRIBUTION CORPORATION, a Panamanian
corporation ("PURCHASER").
W I T N E S S E T H :
WHEREAS, Seller holds all of the corporate capital of Tristar do Brasil
Cosmeticos, Ltda., a limited liability quota company organized under the laws of
the Federative Republic of Brazil ("TARGET"), being 163,636 quotas (the
"STOCK"), and desires to sell the Stock to Purchaser pursuant to this Agreement
as hereinafter provided; and
WHEREAS, Purchaser desires to acquire the Stock from Seller pursuant to
this Agreement as hereinafter provided; and
WHEREAS, in addition to the Stock, Seller (a) owns certain distribution
rights with respect to its products to Chile, Argentina, Brazil, Paraguay and
Uruguay (collectively, the "MERCOSUR") and (b) desires to assign such
distribution rights to Purchaser as provided in this Agreement; and
WHEREAS, in addition to the Stock, Purchaser desires to acquire from
Seller Seller's distribution rights with respect to Seller's products in the
Mercosur (the "DISTRIBUTION RIGHTS") as provided in this Agreement; and
WHEREAS, Purchaser desires to grant to Seller an option to repurchase the
Stock and Seller's Distribution Rights in accordance with the terms and
provisions set forth herein; and
WHEREAS, Seller wishes to obtain from Purchaser an option to repurchase
the Stock and Seller's Distribution Rights in accordance with the terms and
provisions set forth herein; and
WHEREAS, Purchaser desires to obtain Seller's agreement (a) not to
distribute any products in the Mercosur (the "NON-COMPETITION AGREEMENTS") and
(b) to continue to sell its products to Target until May 31, 2001, under the
same pricing structure as is in effect immediately prior to the date of this
Agreement (the "SUPPLY AGREEMENTS"); and
WHEREAS, the parties hereto desire to set forth certain representations,
warranties and covenants made by each to the other as an inducement to the
execution and delivery of this Agreement, and to set forth certain additional
agreements related to the transactions contemplated hereby.
NOW, THEREFORE, for and in consideration of the premises, the mutual
representations, warranties and covenants herein contained and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
2. General Definitions. For purposes of this Agreement, the following
terms shall have the respective meanings set forth below:
2.1. AFFILIATE. "AFFILIATE" of any Person shall mean any Person
Controlling, Controlled by or under common Control with such Person.
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2.2. GOVERNMENTAL AUTHORITY. "GOVERNMENTAL AUTHORITY" shall mean any and
all foreign, federal, state or local governments, governmental institutions,
public authorities and governmental entities of any nature whatsoever, and any
subdivisions or instrumentalities thereof, including, but not limited to,
departments, boards, bureaus, commissions, agencies, courts, administrations and
panels, and any divisions or instrumentalities thereof, whether permanent or ad
hoc and whether now or hereafter constituted or existing.
2.3. GOVERNMENTAL REQUIREMENT. "GOVERNMENTAL REQUIREMENT" shall mean any
and all laws (including, but not limited to, applicable common law principles),
statutes, ordinances, codes, rules, regulations, interpretations, guidelines,
directions, orders, judgments, writs, injunctions, decrees, decisions or similar
items or pronouncements, promulgated, issued, passed or set forth by any
Governmental Authority.
2.4. PERSON. "PERSON" shall mean any natural person, any Governmental
Authority and any entity the separate existence of which is recognized by any
Governmental Authority or Governmental Requirement, including, but not limited
to, corporations, partnerships, joint ventures, joint stock companies, trusts,
estates, companies and associations, whether organized for profit or otherwise.
2.5 SECTION. "SECTION" shall mean the section of this Agreement referred
to by number.
2.6. TAX. "TAX" and "TAXES" shall mean any and all income, excise,
franchise or other taxes and all other charges or fees imposed or collected by
any Governmental Authority or pursuant to any Governmental Requirement, and
shall also include any and all penalties, interest, deficiencies, assessments
and other charges with respect thereto.
3. PURCHASE AND SALE OF THE STOCK; CLOSING DATE
3.1 "PURCHASE AND SALE". Subject to the terms and conditions herein
contained, Seller agrees (a) to sell, assign, transfer and deliver to Purchaser
at the Closing (as hereinafter defined) all right, title and interest in and to
the Stock, the Stock being all of the issued and outstanding capital stock of
Target and the Distribution Rights and (b) to be subject to the Supply Agreement
and the Non-Competition Agreements. Subject to the terms and conditions herein
contained, Purchaser agrees to purchase from Seller the Stock and the
Distribution Rights to pay at the Closing the Purchase Price (as hereinafter
defined) pursuant to the provisions of SECTION 3 below.
3.2 "DELIVERY AND ENDORSEMENT OF CERTIFICATES". At the Closing, Seller
shall deliver to Purchaser certificates representing the Stock, duly endorsed in
blank by Seller, or accompanied by stock powers duly executed in blank by
Seller, and with all necessary transfer tax and other revenue stamps, acquired
at Seller's expense, affixed and canceled. Seller agrees to cure any
deficiencies with respect to the endorsements of the certificates representing
the Stock or with respect to the stock powers accompanying any such
certificates.
3.3 "Closing Date". Subject to the terms and conditions contained herein,
the consummation of transactions referred to above shall take place (the
"Closing") on or before May 30, 1998, at the offices of Fulbright & Jaworski,
L.L.P. in San in San Antonio, Texas, or at such other time, date and place as
Purchaser and Seller shall in writing designate (the "CLOSING DATE").
4. PURCHASE PRICE AND PAYMENT. The aggregate consideration for the Stock,
the Distribution Rights, the Non-Competition Agreements and the Supply
Agreements (the "PURCHASE PRICE") an aggregate reduction of $2,800,000 to the
principal amounts owed by Seller to Purchaser pursuant to the
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terms of (a) that one certain promissory note dated August 31, 1993 in the
original principal amount of $1,500,000 executed by Seller and payable to the
order of Nevell Investment S.A. ("NEVELL"), (b) that one certain promissory note
dated April 25, 1994 in the original principal amount of $2,600,000 executed by
Seller and payable to the order of Nevell and (c) that one certain promissory
note dated December 13, 1994 in the original principal amount of $4,000,000
executed by Seller and payable to the order of Nevell (said promissory notes,
collectively, the "TRISTAR INDEBTEDNESS").
5. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and
warrants to Purchaser as follows:
5.1 INCORPORATION. Target is a limited liability quota company organized
under the laws of the Federative Republic of Brazil.
5.2 SHARE CAPITAL. The corporate capital of Target consists of 163,636
quotas. There are no outstanding subscriptions, options, warrants, calls,
commitments, obligations or agreements relating to any of the corporate capital
of Target. Seller owns all of the Stock free and clear of all liabilities,
liens, encumbrances, pledges, trusts, voting trusts or stockholders' agreements,
equities, charges, options, conditional sale or title retention agreements,
covenants, restrictions, reservations, commitments, obligations or other burdens
or encumbrances of any nature whatsoever, and the consummation of the purchase
and sale contemplated by this Agreement will transfer to Purchaser title to the
Stock free and clear of any such items.
5.3 SUBSIDIARIES. Target does not, directly or indirectly, own or control
any capital stock, bonds or other securities of, or have any proprietary
interest in, any corporation, association, partnership, firm or business
organization or enterprise, nor does it directly or indirectly control the
management of any such entities, nor does it have any obligation to acquire any
such interest in the future.
5.4 EFFECT OF AGREEMENT. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby will not (a) result in
any breach of any of the terms or conditions of the organizational documents of
Target or (b) conflict with, or result in a breach of or default under, the
terms of any agreement, contract, indenture or other instrument to which the
Target is a party or to which any of its property is subject.
5.5 AUTHORIZATION. Seller has full legal right, power and authority to
enter into and deliver this Agreement and to consummate the transactions set
forth herein and to perform all the terms and conditions hereof to be performed
by Seller. This Agreement has been duly executed and delivered by Seller and is
a legal, valid and binding obligation of Seller enforceable in accordance with
its terms, except as limited by applicable bankruptcy, moratorium, insolvency or
other laws affecting generally the rights of creditors or by principles of
equity.
5.6 BROKERS AND FINDERS. No broker or finder has acted for Target or
Seller in connection with this Agreement or the transactions contemplated by
this Agreement and no broker or finder is entitled to any brokerage or finder's
fee or to any commission in respect thereof based in any way on agreements,
arrangements or understandings made by or on behalf of Seller or Target.
5.7 DEBT OF TARGET. To Seller's knowledge, Target has no material debt or
obligations of any kind, fixed or contingent, matured or unmatured, other than
those obligations that have ben previously disclosed to Purchase by Seller.
6. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents and
warrants to Seller as follows:
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6.1 INCORPORATION. Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the British Virgin Islands.
6.2 AUTHORIZATION. Purchaser has full legal right and corporate power to
enter into and deliver this Agreement and to consummate the transactions set
forth herein and to perform all the terms and conditions hereof to be performed
by it. This Agreement has been duly executed and delivered by Purchaser and is a
legal, valid and binding obligation of Purchaser enforceable in accordance with
its terms, except as limited by applicable bankruptcy, moratorium, insolvency or
other laws affecting generally the rights of creditors or by principles of
equity.
6.3 BROKERS AND FINDERS. No broker or finder has acted for Purchaser in
connection with this Agreement or the transactions contemplated by this
Agreement and no broker or finder is entitled to any brokerage or finder's fee
or to any commission in respect thereof based in any way on agreements,
arrangements or understandings made by or on behalf of Purchaser.
7. CONDITIONS TO OBLIGATIONS OF PURCHASER. The obligations of Purchaser
hereunder to proceed to closing are, at the option of Purchaser, subject to the
satisfaction, on or prior to the Closing Date, of the following conditions (any
of which may be waived by Purchaser in its sole discretion):
7.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES AND FULFILLMENT OF
COVENANTS. The representations and warranties of Seller contained in this
Agreement shall be true and correct on and as of the Closing Date with the same
effect as though such representations and warranties had been made on and as of
such date. Each and all of the agreements and covenants of Seller to be
performed on or before the Closing Date pursuant to the terms hereof shall have
been performed.
7.2 GOVERNMENTAL ACTIONS. No action or proceeding before a Governmental
Authority shall have been instituted or threatened to restrain or prohibit the
transactions contemplated by this Agreement. No Governmental Authority shall
have taken any other action as a result of which the management of Purchaser
reasonably deems it inadvisable to proceed with the transactions contemplated by
this Agreement.
7.3 APPROVAL OF COUNSEL. All actions, proceedings, instruments and
documents required or incidental to carrying out this Agreement and all other
related legal matters shall have been approved by Akin, Gump, Strauss, Hauer &
Feld, L.L.P., counsel to Purchaser.
7.4 TRANSFER AND ASSIGNMENT DOCUMENTS. Seller shall have delivered to
Purchaser all documents reasonably necessary or required to effectively transfer
and assign the Stock and the Distribution Rights to Purchaser, such transfers
and assignments to convey title to the Stock to Purchaser, free and clear of all
liens and encumbrances whatsoever, and to be in form and substance reasonably
satisfactory to Purchaser and its counsel.
8. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER. The obligations of
Seller hereunder are, at its option, subject to the satisfaction, on or prior to
the Closing Date, of the following conditions (any of which may be waived by
Seller, in its sole discretion):
8.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES AND FULFILLMENT OF
COVENANTS. The representations and warranties of Purchaser contained in this
Agreement shall be true and correct on and as of the Closing Date with the same
effect as though such representations and warranties had been made on and as of
such date. Each of the agreements and covenants of Purchaser to be performed on
or before the Closing Date shall have been performed.
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8.2 DELIVERY OF PURCHASE PRICE. Purchaser shall delivered to Seller all
documents, in form and substance reasonably acceptable to Seller's counsel,
necessary to evidence the aggregate reduction of $2,800,000 in the principal
amounts owed by Seller pursuant to the terms of the Tristar Indebtedness.
8.3 APPROVAL OF COUNSEL. All actions, proceedings, instruments and
documents required or incidental to carrying out this Agreement and all other
related legal matters shall have been approved by Fulbright & Jaworski, L.L.P.,
counsel to Seller.
9. EXPENSES. Whether or not the transactions contemplated hereby are
consummated, each of the parties will pay all costs and expenses of its
performance of and compliance with this Agreement.
10. FURTHER ACTIONS. From time to time, at the request of any party
hereto, the other parties hereto shall execute and deliver such instruments and
take such action as may be reasonably requested to evidence the transactions
contemplated hereby.
11. ARBITRATION. The parties agree that any dispute or controversy arising
out of or in connection with this Agreement or any alleged breach hereof shall
be settled by arbitration in San Antonio, Texas pursuant to the rules of the
State of Texas. If Purchaser, on the one hand, and Seller, on the other hand,
cannot jointly select a single arbitrator to determine the matter, one
arbitrator shall be chosen by Purchaser, on the one hand, and Seller, on the
other hand (or, if either fails to make a choice, by a court of competent
jurisdiction on behalf of such party), and the two arbitrators so chosen will
select a third. The decisions of the single arbitrator jointly selected by the
parties, or, if three arbitrators are selected, the decision of any two of them,
will be final and binding upon the parties and the judgment of a court of
competent jurisdiction may be entered thereon. Each party shall pay the fees and
expenses of its chosen arbitrator, and the fees and expenses of the third
arbitrator shall be shared equally by the parties.
12. OPTION TO REPURCHASE EXCERSISE PRICE; REPURCHASE CLOSING DATE.
Purchaser hereby grants to Seller the option to repurchase the Stock and the
Distribution Rights and to terminate the Non-Competition Agreements (the
"REPURCHASE OPTION") on the same terms and conditions as Purchaser purchased the
same from Seller hereunder; PROVIDED, HOWEVER, the purchase price for the Stock
and the Distribution Rights and the termination of the Non-Competition
Agreements (the "REPURCHASE PRICE") shall be an amount equal to the sum of (a)
the difference between (i) $2,800,000 MINUS (ii) the net book value of Target as
of the Closing Date, PLUS (b) interest at the rate of ten percent (10%) per
annum on (i) such difference from the Closing Date until the closing of the
repurchase of the Stock and Distribution Rights and the termination of the
Non-Competition Agreements (the "REPURCHASE CLOSING") and (ii) any additional
investment(s) made by Purchaser to Target after the Closing Date from the from
date of such investment(s) until the Repurchase Closing PLUS (c) the net book
value of Target as of the Repurchase Closing. The Repurchase Option shall be
exercisable at any time prior to the fifth anniversary of this Closing Date by
written notice from Seller to Purchaser. If Seller exercises the Repurchase
Option, the Repurchase Closing shall take place at the offices of Fulbright &
Jaworski, L.L.P., 300 Convent, Suite 2200, San Antonio, Texas commencing at
10:00 a.m. local time not later than 60 days following Seller's exercise of the
Option (the "REPURCHASE CLOSING DATE").
13. NOTICES. All notices, requests, demands and other communications
required or permitted to be given hereunder shall be in writing and shall be
deemed to have been duly given if delivered personally, given by prepaid telex
or telegram or by facsimile or other similar instantaneous electronic
transmission device or mailed first class, postage prepaid, certified United
States mail, return receipt requested, as follows:
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(a) If to Purchaser, at:
Transvit Distribution Corporation
P.O. Box 7707
Dubai, U.A.E.
Attention: B.J. Harid
Facsimile No. (011) 9714 556885
With a copy to:
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
300 Convent, Suite 1500
San Antonio, Texas 78205
Attention: Cecil Schenker
Facsimile No. (210) 224-035
(b) If to Seller, at:
Tristar Corporation
12500 San Pedro Avenue, Suite 500
San Antonio, TX 78216
Attention: President
Facsimile No. (210) 402-2216
With a copy to:
Fulbright & Jaworski L.L.P.
300 Convent Street, Suite 2200
San Antonio, Texas 78205
Attention: Phillip M. Renfro
Facsimile No. (210) 270-7205
provided that any party may change its address for notice by giving to the other
party written notice of such change. Any notice given under this SECTION 15
shall be effective (i) if delivered personally, when delivered, if sent by telex
or telegram or by facsimile or other similar instantaneous electronic
transmission device, 24 hours after sending and (ii) if mailed, 48 hours after
mailing.
14. GENERAL PROVISIONS
14.1 GOVERNING LAW; INTERPRETATION; SECTION. This Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of Texas. The section headings contained herein are for purposes of convenience
only, and shall not be deemed to constitute a part of this Agreement or to
affect the meaning or interpretation of this Agreement in any way.
14.2 SEVERABILITY. Should any provision of this Agreement be held
unenforceable or invalid under the laws of the United States of America or the
State of Texas, or under any other applicable laws of any other jurisdiction,
then the parties hereto agree that such provision shall be deemed modified for
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purposes of performance of this Agreement in such jurisdiction to the extent
necessary to render it lawful and enforceable, or if such a modification is not
possible without materially altering the intentions of the parties hereto, then
such provision shall be severed herefrom for purposes of performance of this
Agreement in such jurisdiction. The validity of the remaining provisions of this
Agreement shall not be affected by any such modification or severance, except
that if any severance materially alters the intentions of the parties hereto as
expressed herein (a modification being permitted only if there is no material
alteration), then the parties hereto shall use commercially reasonable effort to
agree to appropriate equitable amendments to this Agreement in light of such
severance, and if no such agreement can be reached within a reasonable time, any
party hereto may initiate arbitration as provided in SECTION 13 above.
14.3 ENTIRE AGREEMENT. This Agreement sets forth the entire agreement and
understanding of the parties hereto with respect to the transactions
contemplated hereby, and supersedes all prior agreements, arrangements and
understandings related to the subject matter hereof. No representation, promise,
inducement or statement of intention has been made by any party hereto which is
not embodied in this Agreement, and no party hereto shall be bound by or liable
for any alleged representation, promise, inducement or statement of intention
not so set forth.
14.4 SURVIVABILITY; BINDING EFFECT. The representations and warranties set
forth herein shall survive the consummation of this Agreement. All the terms,
provisions, covenants and conditions of this Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns.
14.5 ASSIGMENT. Except as specifically permitted herein, this Agreement
and the rights and obligations of the parties hereto shall not be assigned or
delegated by either party hereto without the prior written consent of the other
party hereto.
14.6 AMMENDMENT; WAIVER. This Agreement may be amended, modified,
superseded or canceled, and any of the terms, provisions, representations,
warranties, covenants or conditions hereof may be waived, only by a written
instrument executed by all parties hereto, or, in the case of a waiver, by the
party waiving compliance. The failure of any party at any time or times to
require performance of any provision hereof shall in no manner affect the right
to enforce the same. No waiver by any party of any condition contained in this
Agreement, or of the breach of any term, provision, representation, warranty or
covenant contained in this Agreement, in any one or more instances, shall be
deemed to be or construed as a further or continuing waiver of any such
condition or breach, or as a waiver of any other condition or of the breach of
any other term, provision, representation, warranty or covenant.
14.7 COUNTERPARTS. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement shall be
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of the parties reflected hereon as signatories.
14.8 TELECOPY EXECUTION AND DELIVERY. A facsimile, telecopy or other
reproduction of this Agreement may be executed by one or more parties hereto,
and an executed copy of this Agreement may be delivered by one or more parties
hereto by facsimile or similar instantaneous electronic transmission device
pursuant to which the signature of or on behalf of such party can be seen, and
such execution and delivery shall be considered valid, binding and effective for
all purposes. At the request of either party hereto, all parties hereto agree to
execute an original of this Agreement as well as any facsimile, telecopy or
other reproduction hereof.
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[signatures on next page]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
PURCHASER:
TRANSVIT DISTRIBUTION CORPORATION
By:______________________________
Name:____________________________
Title:___________________________
SELLER:
TRISTAR CORPORATION
By:______________________________
Name:____________________________
Title:___________________________
ACCEPTED AND AGREED TO:
NEVELL INVESTMENTS, S.A.
By:____________________________
Name:__________________________
Title:_________________________