Exhibit 10.22
Execution Copy
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SUBSCRIPTION AND SHARE PURCHASE AGREEMENT
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This Subscription and Share Purchase Agreement (the "Agreement") is entered into
as of the 20th day of November, 2003, by and among THL Food Products Holding
Co., a Delaware corporation (the "Company"), and THL-MF Investors, LLC, a
Delaware limited liability company (the "Purchaser").
WHEREAS, the Purchaser wish to purchase from the Company, and the Company
wishes to issue and sell to the Purchaser, shares of the Company's common stock,
$0.01 par value per share ("Common Stock").
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in this Agreement, the parties to
this Agreement, intending to be legally bound, mutually agree as follows:
ARTICLE I
Purchase and Sale of Shares
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1.1 Sale and Issuance of Shares. Subject to the terms and conditions of
this Agreement, the Purchaser does hereby subscribe for and agree to purchase
concurrently with the Closing (as defined below), and the Company does hereby
agree to sell to the Purchaser concurrently with the Closing, the number of
shares of Common Stock set forth opposite the name of the Purchaser on Schedule
I attached hereto (collectively, the "Shares") for the total purchase price set
forth opposite the name of the Purchaser on Schedule I attached hereto (the
"Purchase Price"). Neither the Company nor the Purchaser shall be obligated to
proceed with the Closing unless each other party hereto is prepared to
simultaneously proceed with the Closing.
1.2 Closing. The issuance, sale and purchase of the Shares hereunder shall
occur at a closing (the "Closing") to be held concurrently with the closing of
the transactions contemplated by that certain Agreement and Plan of Merger,
dated as of October 10, 2003 (as amended from time to time, the "Merger
Agreement") among M-Foods Investors, LLC (as stockholder representative), THL
Food Products Holding Co., THL Food Products Co., M-Foods Holdings, Inc. and the
Stockholders (as defined therein). Payment of the Purchase Price shall be made
by the Purchaser (against receipt of a share certificate delivered by the
Company) to the Company or its designee at the Closing by delivery of a wire
transfer of same day funds denominated in U.S. dollars, unless otherwise
mutually agreed in writing with the Company.
ARTICLE II
Representations and Warranties of the Company
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The Company represents and warrants to the Purchaser that:
2.1 Organization and Standing. The Company is a limited liability company
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has
all requisite limited liability company power and authority to carry on its
business as now conducted and as proposed to be conducted.
2.2 Authorization. All limited liability company action on the part of the
Company necessary for the authorization, execution, delivery and performance of
this Agreement by the Company, and for the authorization, issuance and delivery
of the Shares being sold under this Agreement, has been taken. This Agreement,
when executed and delivered by all parties hereto, shall constitute the valid
and legally binding obligation of the Company, except to the extent the
enforceability thereof may be limited by bankruptcy laws, insolvency laws,
reorganization laws, moratorium laws or other laws affecting creditors' rights
generally or by general equitable principles.
2.3 Validity of Shares. The Shares, when issued, sold and delivered in
accordance with the terms of this Agreement, shall be duly and validly issued,
and fully paid and nonassessable.
2.4 Securities Act. The sale of Shares in accordance with the terms of
this Agreement (assuming the accuracy of the representations and warranties of
the Sponsor contained in Article III hereof) is exempt from the registration
requirements of the Securities Act of 1933, as amended (the "1933 Act").
ARTICLE III
Representations, Warranties and Agreements of the Purchaser
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The Purchaser hereby represents and warrants to the Company that:
3.1 Authorization. This Agreement, when executed and delivered by it, will
constitute its valid and legally binding obligation, except to the extent the
enforceability thereof may be limited by bankruptcy laws, insolvency laws,
reorganization laws, moratorium laws or other laws affecting creditors' rights
generally or by general equitable principles.
3.2 Investment Representations.
(a) The Shares to be received by it will be acquired by it for
investment for its own account, not as a nominee or agent, and not with a view
to the sale or distribution of any part thereof in violation of applicable
federal and state securities laws, and it has no current intention of selling,
granting participation in or otherwise distributing the same, in each case, in
violation of applicable federal and state securities laws. By executing this
Agreement, the Purchaser further represents that it does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participation to such person, or to any third person, with respect to any of the
Shares, in each case, in violation of applicable federal and state securities
laws.
(b) The Purchaser understands that the Shares have not been
registered under the 1933 Act on the basis that the sale provided for in this
Agreement and the issuance of
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securities hereunder is exempt from registration under the 1933 Act pursuant to
Section 4(2) thereof and regulations issued thereunder.
(c) It has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of its investment.
The Purchaser further represents that it has had access, during the course of
the transactions contemplated hereby and prior to its purchase of the Shares, to
the same kind of information that is specified in Part I of a registration
statement under the 1933 Act and that it has had, during the course of the
transactions contemplated hereby and prior to its purchase of the Shares, the
opportunity to ask questions of, and receive answers from, the Company
concerning the terms and conditions of the offering and to obtain additional
information (to the extent the Company possessed such information or could
acquire it without unreasonable effort or expense) necessary to verify the
accuracy of any information furnished to it or to which it had access. The
Purchaser understands that no federal or state agency has passed upon this
investment or upon the Company, nor has any such agency made any finding or
determination as to this investment.
(d) The Purchaser understands that the Shares may not be sold,
transferred or otherwise disposed of without registration under the 1933 Act or
an exemption therefrom, and that in the absence of an effective registration
statement covering the Shares or an available exemption from registration under
the 1933 Act, the Shares must be held indefinitely. The Purchaser must be
prepared to bear the economic risk of this investment for an indefinite period
of time. In particular, the Purchaser acknowledges that it is aware that the
Shares may not be sold pursuant to Rule 144 promulgated under the 1933 Act
unless all of the conditions of that Rule are met. Among the current conditions
for use of Rule 144 by certain holders is the availability to the public of
current information about the Company. Such information is not now available,
and the Company has no current plans to make such information available. The
Purchaser represents that, in the absence of an effective registration statement
covering the Shares, it will sell, transfer or otherwise dispose of the Shares
only in a manner consistent with its representations set forth herein.
(e) The Purchaser acknowledges that this investment is not
recommended for investors who have any need for a current return on this
investment or who cannot bear the risk of losing their entire investment. The
Purchaser acknowledges that: (i) it has adequate means of providing for its
current needs and possible personal contingencies and has no need for liquidity
in this investment; (ii) its commitment to investments which are not readily
marketable is not disproportionate to its net worth; and (iii) its investment in
the Shares will not cause its overall financial commitments to become excessive.
ARTICLE IV
Conditions to Obligations of the Purchaser at Closing
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The obligations of the Purchaser under Article I of this Agreement are
subject to the fulfillment on or before the Closing of each of the following
conditions:
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4.1 Representations and Warranties. The representations and warranties of
the Company contained in Article II hereof shall be true on and as of the
Closing with the same force and effect as if they had been made at the Closing.
4.2 Performance. The Company shall have performed and complied with all
agreements and conditions contained in this Agreement required to be performed
or complied with by it on or before the Closing.
4.3 Qualifications. All authorizations, approvals or permits, if any, of
any governmental authority or regulatory body of the United States or of any
state that are required in connection with the lawful issuance and sale of the
Shares pursuant to this Agreement shall have been duly obtained and shall be
effective on and as of the Closing.
4.4 Concurrent Closing. The closing of the transactions contemplated by
the Merger Agreement shall occur simultaneously with the Closing hereunder.
ARTICLE V
Conditions to the Obligations of the Company at Closing
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The obligations of the Company under Article I of this Agreement are
subject to the fulfillment on or before the Closing of each of the following
conditions:
5.1 Representations. The representations, warranties and agreements of the
Purchaser contained in Article III hereof shall be true on and as of the Closing
Date with the same force and effect as if they had been made at the Closing.
5.2 Qualifications. All authorizations, approvals or permits, if any, of
any governmental authority or regulatory body of the United States or of any
state that are required in connection with the lawful issuance and sale of the
Shares pursuant to this Agreement shall have been duly obtained and shall be
effective on and as of the Closing.
5.3 Performance. The Purchaser shall have performed in all material
respects all of its obligations and materially complied with each and all of its
covenants required to be performed or complied with on or prior to the Closing,
including without limitation the execution and delivery of the agreements and
undertakings provided for in this Agreement.
ARTICLE VI
Miscellaneous
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6.1 No Waiver; Modifications in Writing. This Agreement sets forth the
entire understanding of the parties, and supersedes all prior agreements,
arrangements and communications, whether oral or written, with respect to the
subject matter hereof. No waiver of or consent to any departure from any
provision of this Agreement shall be effective unless signed in writing by the
party entitled to the benefit thereof, provided that notice of any such waiver
shall be given to each party hereto as set forth below. Except as otherwise
provided herein, no amendment, modification or termination of any provision of
this Agreement shall be effective
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unless signed in writing by or on behalf of the Company and the Purchaser. Any
amendment, supplement or modification of or to any provision of this Agreement,
any waiver of any provision of this Agreement, and any consent to any departure
by the Company from the terms of any provision of this Agreement, shall be
effective only in the specific instance and for the specific purpose for which
made or given. Except where notice is specifically required by this Agreement,
no notice to or demand on the Company in any case shall entitle the Company to
any other or further notice or demand in similar or other circumstances.
6.2 Notices. All notices, requests, consents and other communications
hereunder to any party shall be deemed to be sufficient if contained in a
written instrument delivered in person or sent by telecopy,
nationally-recognized overnight courier or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to such party at the
address set forth below or such other address as may hereafter be designated in
writing by such party to the other parties:
If to the Company: THL Food Products Holding Co.
c/o Thomas H. Lee Partners, L.P.
75 State Street
Boston, MA 02109
Attention: Anthony J. DiNovi
Attention: Kent R. Weldon
Attention: Todd M. Abbrecht
Facsimile: 617-227-3153
If to the Purchaser: THL-MF Investors, LLC
c/o Thomas H. Lee Partners, L.P.
75 State Street
Boston, Massachusetts 02109
Attention: Anthony J. DiNovi
Attention: Kent R. Weldon
Attention: Todd M. Abbrecht
Facsimile: 617-227-3153
With a copy to: Weil, Gotshal & Manges LLP
100 Federal Street
Boston, Massachusetts 02110
Attention: James Westra, Esq.
Facsimile: 617-772-8333
All such notices, requests, consents and other communications shall be
deemed to have been delivered (a) in the case of personal delivery or delivery
by telecopy, on the date of such delivery, (b) in the case of dispatch by
nationally-recognized overnight courier, on the next business day following such
dispatch and (c) in the case of mailing, on the third business day after the
posting thereof.
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6.3 Costs, Expenses and Taxes. The Company agrees to pay on demand all
expenses incurred by the Purchaser and its affiliates or any of them in
connection with this Agreement, including but not limited to the fees and
disbursements of Weil, Gotshal & Manges LLP, counsel to the Purchaser, and any
other consultants or advisors retained by the Purchaser, including but not
limited to the preparation, negotiation and execution of this Agreement or the
transactions contemplated hereby. The Company shall pay any and all stamp,
transfer and other similar taxes payable or determined to be payable in
connection with the execution and delivery of this Agreement or the issuance of
the Shares or any capital stock of the Company issued upon the redemption or
exchange of the Shares but excluding all federal, state and local income or
similar taxes and shall save and hold the Purchaser harmless from and against
any and all liabilities with respect to or resulting from any delay in paying,
or omission to pay, such taxes.
6.4 Execution of Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto on separate counterparts,
each of which counterparts, when so executed and delivered, shall be deemed to
be an original and all of which counterparts, taken together, shall constitute
but one and the same Agreement.
6.5 Binding Effect; Assignment. The rights and obligations of the
Purchaser under this Agreement may not be assigned to any other person. Except
as expressly provided in this Agreement, this Agreement shall not be construed
so as to confer any right or benefit upon any person other than the parties to
this Agreement, and their respective successors and assigns. This Agreement
shall be binding upon the Company and the Purchaser and its and their respective
successors and assigns.
6.6 Governing Law. This Agreement shall be governed by the laws of the
State of Delaware as to all matters, including but not limited to matters of
validity, construction, effect, performance and remedies.
6.7 Severability of Provisions. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
6.8 Exhibits and Headings. All Exhibits to this Agreement shall be deemed
to be a part of this Agreement. The Article and Section headings used or
contained in this Agreement are for convenience of reference only and shall not
affect the construction of this Agreement.
6.9 Injunctive Relief. Each of the parties to this Agreement hereby
acknowledges that in the event of a breach by any of them of any material
provision of this Agreement, the aggrieved party may be without an adequate
remedy at law. Each of the parties therefore agrees that, in the event of a
breach of any material provision of this Agreement, the aggrieved party may
elect to institute and prosecute proceedings to enforce specific performance or
to enjoin the continuing breach of such provision, as well as to obtain damages
for breach of this Agreement. By seeking or obtaining any such relief, the
aggrieved party will not be precluded from seeking or obtaining any other relief
to which it may be entitled.
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6.10 Attorneys' Fees. In any action or proceeding brought to enforce any
provision of this Agreement, or where any provision hereof or thereof is validly
asserted as a defense, the successful party shall be entitled to recover
reasonable attorneys' fees in addition to any other available remedy.
6.11 Survival of Agreements, Representations and Warranties. All
agreements, representations and warranties contained herein or made in writing
by or on behalf of the Company or the Purchaser, as the case may be, in
connection with the transactions contemplated by this Agreement shall survive
the execution and delivery of this Agreement and the sale and purchase of the
Shares and payment therefor.
6.12 Indemnification. The Company hereby agrees to indemnify, exonerate and
hold the Purchaser, and its respective partners, shareholders, affiliates,
directors, officers, fiduciaries, employees and agents and each of the partners,
shareholders, affiliates, directors, officers, fiduciaries, employees and agents
of each of the foregoing (collectively, the "Indemnitees") free and harmless
from and against any and all actions, causes of action, suits, losses,
liabilities and damages, and expenses in connection therewith, including without
limitation reasonable attorneys' fees and disbursements (collectively, the
"Indemnified Liabilities"), incurred by the Indemnitees or any of them as a
result of, or arising out of, or relating to the execution, delivery,
performance, enforcement or existence of this Agreement or the transactions
contemplated hereby except for any such Indemnified Liabilities arising on
account of such Indemnitee's gross negligence or willful misconduct, and if and
to the extent that the foregoing undertaking may be unenforceable for any
reason, the Company hereby agrees to make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law. None of the Indemnitees shall be liable to the
Company or any of its affiliates for any act or omission suffered or taken by
such Indemnitee that does not constitute gross negligence or willful misconduct.
*** Remainder of Page Intentionally Left Blank ***
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SUBSCRIPTION AND SHARE PURCHASE AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as an instrument under seal, as of the date first above written.
THL FOOD PRODUCTS HOLDING CO.
By: /s/ Gregg A. Ostrander
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Name: Gregg A. Ostrander
Title:
PURCHASER:
THL-MF INVESTORS, LLC
By: /s/ Gregg A. Ostrander
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Name: Gregg A. Ostrander
Title:
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Schedule 1
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Common Aggregate Purchase
Purchaser Shares Price
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THL-MF Investors, LLC 475,000 $ 297,819,162.45
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