STOCK PURCHASE AGREEMENT
BY AND BETWEEN
CORE-MARK L.L.C.
AND
CORE-MARK INTERNATIONAL, INC.
JUNE 17, 1996
STOCK PURCHASE AGREEMENT
AGREEMENT, made this 17th day of June, 1996, by and between Core-Mark
L.L.C., a Delaware limited liability company (hereinafter referred to as
"Seller"), and Core-Mark International, Inc., a Delaware corporation
(hereinafter referred to as "Purchaser").
W I T N E S S E T H :
WHEREAS, Seller currently owns 100 shares of common stock, par value
$0.01 per share, of Purchaser (the "Common Stock"), which, as of the date
hereof, represents all of the issued and outstanding capital stock of Purchaser;
and
WHEREAS, immediately following the issuance and sale by Purchaser of
38.70968 shares of its Common Stock to CM/J Acquisition, LLC, a Delaware limited
liability company (hereinafter referred to as "CAC"), pursuant to the terms of
the Stock Subscription Agreement, dated the date hereof, between Purchaser and
CAC (the "CAC Subscription Agreement"), Seller will sell to Purchaser, and
Purchaser will purchase from Seller, 87.09677 shares of Common Stock (the
"Seller Shares"), for the purchase price and upon the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, the parties hereto agree as follows:
1. PURCHASE AND SALE OF SHARES; PURCHASE PRICE. (a) On the terms
and subject to the conditions set forth in this Agreement, Seller hereby agrees
to sell to Purchaser, and Purchaser hereby agrees to purchase from Seller, at
the Closing (as hereinafter defined), the Seller Shares.
(b) The total purchase price to be paid by Purchaser for the Seller
Shares (the "Purchase Price") shall be $125,000,000 plus the Additional
Consideration (as hereinafter defined), which Purchase Price shall be payable in
U.S. dollars in immediately available funds.
(c) Any funds held pursuant to the Escrow Agreement (as defined in
the CAC Subscription Agreement) at the termination thereof following the
distribution to CAC of all payments therefrom to which it is entitled shall be
distributed by the escrow agent in the manner to be determined by the members of
Seller, which distribution of the remaining funds held pursuant to the Escrow
Agreement shall constitute additional consideration for the Seller Shares (the
"Additional Consideration").
2. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser hereby
represents and warrants to Seller as follows:
(a) ORGANIZATION AND GOOD STANDING. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has full corporate power and authority to own its properties and
carry on its business as it is now being conducted.
(b) EXECUTION OF AGREEMENT. Purchaser has the corporate power and
authority to enter into this Agreement and to carry out the transaction
contemplated hereby. The
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execution and delivery of this Agreement and the consummation of the transaction
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Purchaser. This Agreement has been duly executed and delivered
by Purchaser and constitutes the legal, valid and binding obligation of
Purchaser, enforceable against it in accordance with its terms.
(c) NO RESTRICTION. The execution and delivery of this Agreement and
the consummation of the transaction contemplated hereby will not conflict with
or result in a breach of any applicable law or judicial or administrative order
or decree or any terms of any agreement to which Purchaser is a party, except
for such conflicts and breaches of any agreement that in the aggregate have no
reasonable likelihood of having a material adverse effect on Purchaser's ability
to consummate the transaction contemplated by this Agreement, nor will it
violate any of the provisions of Purchaser's organizational documents.
(d) GOVERNMENTAL CONSENTS. No consent, approval or authorization of,
or filing with, any governmental authority on the part of Purchaser is required
in connection with the execution and delivery of this Agreement or the
consummation of the transaction contemplated hereby.
3. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby
represents and warrants to Purchaser as follows:
(a) ORGANIZATION AND GOOD STANDING. Seller is a limited liability
company duly organized, validly existing and in good standing under the laws of
the State of Delaware, and
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has the requisite power and authority to own its properties and carry on its
business as it is now being conducted.
(b) EXECUTION OF AGREEMENT. Seller has the requisite power and
authority to enter into this Agreement and to carry out the transaction
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transaction contemplated hereby have been duly authorized by
all necessary action on the part of Seller. This Agreement has been duly
executed and delivered by Seller and constitutes the legal, valid and binding
obligation of Seller, enforceable against it in accordance with its terms.
(c) NO RESTRICTION. The execution and delivery of this Agreement and
the consummation of the transaction contemplated hereby will not conflict with
or result in a breach of any applicable law or judicial or administrative order
or decree or any terms of any agreement to which Seller is a party, except for
such conflicts and breaches of any agreement that in the aggregate have no
reasonable likelihood of having a material adverse effect on Seller's ability to
consummate the transaction contemplated by this Agreement, nor will it violate
any of the provisions of Seller's organizational documents.
(d) GOVERNMENTAL CONSENTS. No consent, approval or authorization of,
or filing with, any governmental authority on the part of Seller is required in
connection with the execution and delivery of this Agreement or the consummation
of the transaction contemplated hereby.
(e) OWNERSHIP OF SELLER SHARES. Seller owns and has good and valid
title to the Seller Shares free and clear of all security interests, liens,
claims and similar encumbrances.
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4. CONDITIONS PRECEDENT TO PURCHASER'S AND SELLER'S OBLIGATIONS. The
obligations of Purchaser and Seller to consummate the sale and purchase of the
Seller Shares on the Closing Date is conditioned only upon the occurrence of the
consummation of the transactions contemplated by the CAC Subscription Agreement.
5. CLOSING DATE; CLOSING. (a) The closing hereunder (herein called
the "Closing") shall take place at the offices of Weil, Gotshal & Manges LLP,
767 Fifth Avenue, New York, N.Y. 10153 immediately following the consummation of
the transactions contemplated by the CAC Subscription Agreement. The date of
the Closing is referred to in this Agreement as the "Closing Date".
(b) At the Closing, Seller shall deliver, or shall cause to be
delivered, to Purchaser certificates representing the Seller Shares duly
endorsed in blank or accompanied by duly executed stock powers as requested by
Purchaser.
(c) At the Closing, Purchaser shall cause the wire transfer of
$125,000,000 in U.S. dollars in immediately available funds to be made to an
account specified by Seller.
6. EXPENSES. Provided that the transactions contemplated by this
Agreement and the CAC Subscription Agreement are consummated, Seller hereby
agrees to be responsible for and to pay all costs and expenses incurred by it
and Purchaser in connection with the transactions contemplated by the CAC
Subscription Agreement and this Agreement, including without limitation, the
fees and expenses of Lazard Freres & Co. LLC, Weil, Gotshal & Manges LLP,
Kessal, Young & Logan and Purchaser's accountants and advisors. All such costs
and expenses shall be paid to Purchaser simultaneously with the Closing. From
and after
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the time the transactions contemplated by this Agreement and the CAC
Subscription Agreement are consummated, Seller will indemnify and hold Purchaser
and CAC harmless from and against any and all liability to which Purchaser or
CAC may be subjected by reason of any broker's, finder's or similar fee with
respect to the transactions contemplated by this Agreement or the CAC
Subscription Agreement to the extent such fee is attributable to any action
undertaken by or on behalf of Seller or Purchaser. If the CAC Subscription
Agreement and this Agreement are terminated without the consummation of the
transactions contemplated thereby and hereby, Purchaser will be responsible for
and pay the expenses incurred by it and Seller pursuant to the CAC Subscription
Agreement and this Agreement.
7. NO INCONSISTENT ACTIVITIES. Seller will not solicit, and will
direct its members, officers and other representatives not to, directly or
indirectly encourage, or participate in any way in discussions or negotiations
with, or provide any information or assistance to any third party concerning the
acquisition of shares of capital stock of Purchaser or a substantial portion of
the total assets of Purchaser (whether by merger, purchase of assets or
otherwise). Seller will promptly communicate to Purchaser and CAC the terms of
any proposal or contact it may receive in respect of any such transaction.
Seller shall not release any third party from any confidentiality or standstill
agreement to which Seller is a party without the prior written consent of CAC.
8. SPECIFIC PERFORMANCE. The parties hereto acknowledge that
irreparable damage would result to the parties and to CAC if this Agreement is
not specifically enforced. Therefore, the rights and obligations of the parties
under this Agreement, including, without
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limitation, their respective rights and obligations to sell and to purchase the
Seller Shares, shall be enforceable by the parties and by CAC a decree of
specific performance issued by any court of competent jurisdiction, and
appropriate injunctive relief may be applied for and granted in connection
therewith. Such remedies shall, however, be cumulative and not exclusive and
shall be in addition to any other remedies which any party may have under this
Agreement or otherwise.
9. TERMINATION. This Agreement may be terminated only if the CAC
Subscription Agreement is terminated, in which event this Agreement
automatically shall terminate. In the event that this Agreement shall be
terminated pursuant to this Section 9, all further obligations of the parties
under this Agreement shall terminate without further liability of either party
to the other.
10. NOTICES. Any notice or other communication hereunder may be
given to a party at its address set forth below or to such other address as such
party shall have given notice of pursuant hereto. Any notice shall be in
writing and sent by registered or certified mail, postage prepaid, return
receipt requested, by facsimile, by personal delivery or reputable overnight
courier. Notices shall be deemed to have been given in case of personal
delivery when receipt has been confirmed, in the case of delivery to a reputable
overnight courier, on the next day, in the case of mail, on the third business
day following deposit in the mails and in the case of facsimile, when telecopied
with confirmation of transmission.
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In the case of Purchaser:
Core-Mark L.L.C.
395 Oyster Point Blvd., Suite 415
South San Francisco, CA 94060
Attention: Gary L. Walsh
Telecopy: 415-952-4284
In the case of Purchaser:
Core-Mark International, Inc.
395 Oyster Point Blvd., Suite 415
South San Francisco, CA 94060
Attention: Leo F. Korman
Telecopy: 415-952-4284
11. ENTIRE AGREEMENT. This Agreement represents the entire
understanding and agreement between the parties hereto with respect to the
subject matter hereof and can be amended, supplemented or changed, and any
provision hereof can be waived, only by written instrument making specific
reference to this Agreement signed by the party against whom enforcement of any
such amendment, supplement, modification or waiver is sought.
12. SUCCESSORS. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
assigns; provided, however, that this Agreement and all rights and obligations
hereunder may not be assigned or transferred without the prior written consent
of the other party hereto.
13. SECTION HEADINGS. The section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
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14. APPLICABLE LAW. This Agreement shall be governed by, construed
and enforced in accordance with the law of the State of New York.
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
16. PRESS RELEASE. Prior to the Closing or thereafter, Seller shall
not make any press release or public announcement in connection with the
transactions contemplated hereby without the prior written consent of Purchaser
and CAC or, if disclosure is required by law, without prior consultation with
Purchaser and CAC.
17. THIRD PARTY BENEFICIARY; AMENDMENT. This Agreement is for the
benefit of the parties hereto and for the benefit of CAC. The parties
acknowledge and agree that CAC, as a third party beneficiary of this Agreement,
is executing the CAC Subscription Agreement in reliance on this Agreement and
CAC may enforce this Agreement as if it were a party hereto. The parties agree
that this Agreement will not be amended without the prior written consent of
CAC.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the day and year first above written.
CORE-MARK L.L.C.
By:
/s/ Gary L. Walsh
------------------------------
Name: Gary L. Walsh
Title: Managing General Partner of CMI Parntership,
Holder of all the Class A Interests
CORE-MARK INTERNATIONAL, INC.
By:
/s/ Leo F. Korman
------------------------------
Name: Leo F. Korman
Title: Senior Vice President
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AMENDMENT NO. 1
TO
STOCK PURCHASE AGREEMENT
BY AND BETWEEN
CORE-MARK L.L.C.
AND
CORE-MARK INTERNATIONAL, INC.
AUGUST 6, 1996
AMENDMENT NO. 1 TO
STOCK PURCHASE AGREEMENT
AMENDMENT NO. 1, made this 6th day of August, 1996, by and between
Core-Mark L.L.C., a Delaware limited liability company (hereinafter referred to
as "Seller"), and Core-Mark International, Inc., a Delaware corporation
(hereinafter referred to as "Purchaser").
W I T N E S S E T H :
WHEREAS, Seller and Purchaser are parties to the Stock Purchase
Agreement, dated June 17, 1996 (the "Agreement"); and
WHEREAS, Seller and Purchaser wish to amend the Agreement in certain
respects, upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, the parties hereto agree as follows:
1. DEFINITIONS. Except as otherwise defined in this Amendment No.
1, terms defined in the Agreement are used herein as defined therein.
2. AMENDMENTS. Effective as of the date hereof, the Agreement is
hereby amended as follows:
(a) The second "WHEREAS" clause in the recitals to the
Agreement shall be amended to read, in its entirety, as follows:
"WHEREAS, immediately following the issuance and
sale by Purchaser to CM/J Acquisition, LLC, a Delaware
limited liability company (hereinafter referred to as
"CAC"), of 26.61290 shares of its Common Stock and a
Subordinated Note (as defined in the CAC Subscription
Agreement) with an original issue price of $18,750,000,
pursuant to the terms of the Stock Subscription Agreement,
dated the date hereof, between Purchaser and CAC (the "CAC
Subscription Agreement"), Seller (or assigns) will sell to
Purchaser, and Purchaser will purchase from Seller (or
assigns), 91.12903 shares of Common Stock (the "Seller
Shares"), for the purchase price and upon the terms and
conditions hereinafter set forth;
(b) Section 1 of the Agreement shall be amended to read, in its
entirety, as follows:
"1. PURCHASE AND SALE OF SHARES; PURCHASE PRICE. (a) On the terms
and subject to the conditions set forth in this Agreement, Seller hereby agrees
to sell to Purchaser, and Purchaser hereby agrees to purchase from Seller, at
the Closing (as hereinafter defined), the Seller Shares.
(b) The total purchase price to be paid by Purchaser for the Seller
Shares (the "Purchase Price") shall be $131,250,000 plus the Additional
Consideration (as hereinafter defined), which Purchase Price shall be payable
(i) $125,000,000 in U.S. dollars in immediately available funds, and (ii) the
remainder by delivery of Subordinated Notes with an original issue price of
$6,250,000.
(c) Any funds held pursuant to the Escrow Agreement (as defined in
the CAC Subscription Agreement) at the termination thereof following the
distribution to CAC of all payments therefrom to which it is entitled shall be
distributed by the escrow agent in the manner to be determined by the members of
Seller (or assigns)n, which distribution of the remaining funds held pursuant to
the Escrow Agreement shall constitute additional consideration for the Seller
Shares (the "Additional Consideration")."
(c) Section 5(c) of the Agreement shall be amended to read, in its
entirety, as follows:
"(c) At the Closing, Purchaser shall (i) cause the wire transfer of
$125,000,000 in U.S. dollars in immediately available funds to be made to an
account specified by Seller and shall issue and deliver Subordinated Notes with
an aggregate original issue price of $6,250,000 as specified on Schedule 3(b) to
the CAC Subscription Agreement."
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3. EFFECTIVENESS. This Amendment No. 1 shall become effective upon
the amendment of the CAC Subscription Agreement as provided herein, which the
Company represents has occurred concurrently with the execution of this
Amendment No. 1.
4. MISCELLANEOUS. Except as provided herein, the Agreement shall
remain unchanged and in full force and effect. This Amendment No. 1 shall be
governed by, and construed and enforced in accordance with, the law of the State
of New York.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment No. 1 to Stock Purchase Agreement on the day and year first above
written.
CORE-MARK L.L.C.
By: /s/ Gary L. Walsh
------------------------------
Name: Gary L. Walsh
Title: Managing General Partner of CMI
Partnership, holder of all the Class A
Interests
CORE-MARK INTERNATIONAL, INC.
By: /s/ Leo F. Korman
------------------------------
Name: Leo F. Korman
Title: Senior Vice President
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