EXHIBIT
10.1
Share Sale and
Transfer Agreement
regarding all
shares in
Haleko
Hanseatisches Lebensmittelkontor GmbH & Co.
OHG,
Food-Tech
Handelsgesellschaft mbH,
Aktivkost
Handelsgesellschaft mbH,
HPH Hamburger
Pharma Handelsgesellschaft mbH
of
17
June 2005
among
Weider Nutrition
GmbH,
Haleko Management
GmbH,
and
Atlantic Grupa
d.o.o.
Hopen Investments
B.V.,
Svalbard
Investments GmbH
This share sale and transfer
agreement (this " Agreement ") is made on
17 June 2005 by
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Weider Nutrition GmbH, registered
in the commercial register at the local court in Hamburg under
registration number HRB 68089 with business address as
Holsteinischer Kamp 1, 22081 Hamburg, Germany;
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("
Seller 1
")
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Haleko Management GmbH, registered
in the commercial register at the local court in Hamburg under
registration number HRB 67421 with headquarters at Holsteinischer
Kamp 1, 22081 Hamburg, Germany;
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(“
Seller 2
”)
(Seller 1 and Seller 2
collectively referred to herein as the " Sellers ")
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Atlantic Grupa d.o.o., Turinina 3,
10010 Zagreb, Croatia
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Hopen Investments B.V., registered
in the commercial register at the trade register of the Chamber of
Commerce and Industries for Rotterdam under no. 24378086
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Svalbard Investments GmbH,
registered in the commercial register at the local court in Hamburg
under registration number HRB 93737 with headquarters at
Alsterarkaden 27, 20354 Hamburg, Germany (currently named TACITA
Vermögensverwaltungsgesellschaft mbH).
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(Purchaser 1 and
Purchaser 2 collectively referred to herein as the "
Purchasers
")
- the Sellers and the Purchasers
individually also referred to herein as the “
Party
”, and, collectively, as the “ Parties ” -
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Seller 1
holds, inter alia ,
a share in the amount of DM 50,000 (fifty thousand German Marks) in
Seller 2. Seller 2 holds a partnership interest in the amount of DM
4,000 (four thousand German Marks) (" Participation 2 ") in Haleko
Hanseatisches Lebensmittelkontor GmbH & Co. OHG (“
Haleko
”), a partnership organised under German law, registered in
the commercial register at the local court of Hamburg under
registration no. HRA 92767. The sole other partner in Haleko is
Seller 1 with a partnership interest of DM 1,496,000 (one million
four hundred ninety-six thousand German Marks) ("
Participation
1 "). Participation 1 and Participation 2
are collectively referred to herein as the "
Participation ". The business
year of Haleko runs from 1 May to 30 April the
following year. Haleko itself holds all of the shares in Multipower
Nutrition S.a.r.l, Haleko Italia S.r.l. and Power Gym Ltd. Power
Gym Ltd. holds 50 % of the shares in Sports Direct Ltd..
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Appendix A to this Agreement shows the shareholder
accounts as of 30 April 2005 which are kept at Haleko for
the shareholders comprising accounts for the fixed capital (
Festkapitalkonten
), current accounts resulting from the former transformation of
Haleko GmbH into Haleko OHG ( Gesellschafterverrechnungskonten aus
Umwandlung ), retained earnings of the shareholders (
Gewinnguthaben )
and current accounts for the shareholders ( Gesellschafterverrechnungskonten )
which result from transactions between Haleko and its
shareholders.
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Seller 1 also holds in each of the
following entities the entire stated capital with a share
in
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Aktivkost Handelsgesellschaft mbH,
a private limited company organised under the laws of Germany,
registered in the commercial register at the local court in Hamburg
under registration number HRB 32457, with headquarters at
Holsteinischer Kamp 1, 22081 Hamburg, Germany ("
Aktivkost
") in the nominal amount of DM 50,000 (fifty thousand German Marks)
(" Share 1
" ) ; the
business year of Aktivkost runs from
1 May to 30 April the following
year;
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Food-Tech Handelsgesellschaft mbH,
a private limited company organised under the laws of Germany,
registered in the commercial register at the local court in Hamburg
under registration number HRB 37276, with headquarters at
Holsteinischer Kamp 1, 22081 Hamburg, Germany ("
Food-Tech
") in the nominal amount of DM 100,000 (hundred thousand German
Marks) (" Share
2 " ) ; the business year of
Food-Tech runs from 1 May to 30 April the
following year, and
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HPH Hamburger Pharma
Handelsgesellschaft mbH, a private limited company organised under
the laws of Germany, registered in the commercial register at the
local court in Hamburg under registration number HRB 49842, with
headquarters at Holsteinischer Kamp 1, 22081 Hamburg, Germany ("
HPH ") in
the nominal amount of DM 100,000 (hundred thousand German Marks) ("
Share 3 "
) ; the
business year of HPH runs from
1 May to 30 April the following
year.
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Share 1, Share 2 and
Share 3 collectively referred to herein as the "
Share
".
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Haleko owes to Seller 1 an amount
of € 831,918.76 due to unpaid interest for a loan granted
from Seller 1 to Haleko in 1999. The principal has been repaid in
full. The still outstanding amount does not bear any interest ("
Loan
").
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By assumption
agreement of 21 December 1998, Weider Nutrition S.L. assumed a
guarantee ( Bürgschaft ) furnished to Haleko in the amount of DM
550,000 to secure certain claims by Haleko against Food-Tech (the
“ Weider
Spain Surety ”) . The Weider Spain Surety has not been enforced and
is still existing.
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The Sellers wish to sell, and the
Purchasers wish to buy, the Participation and the Share and the
Loan subject to the terms and subject to the conditions set out in
this Agreement.
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THEREFORE, the Sellers and the
Purchasers agree as follows:
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Pursuant to the terms and
conditions set forth in this Agreement, Seller 1 hereby sells, and
Purchaser 1 hereby accepts to buy, Participation 1, Share 1, Share
2 and Share 3 with commercial effect on 1 May 2005
(hereinafter the " Effective Date ") free and
clear of any encumbrances, together with all ancillary rights,
including - as applicable - the right to receive all undistributed
dividends of previous business years and the current business
year.
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For the avoidance of doubt, by
Purchaser 1 acquiring the Participation 1 with commercial
effect as of the Effective Date Purchaser 1 also assumes the
existing shareholder accounts kept at Haleko for Seller 1,
i.e. the fixed capital, the current account resulting from
transformation and the retained earnings as set forth in
Appendix A, provided, however, as regards the current account
from transactions and the retained earnings account of
Seller 1 those two accounts shall be set-off against each
other so that Purchaser 1 only assumes the balance between those
two accounts.
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Pursuant to the terms and
conditions set forth in this Agreement, Seller 2 hereby sells, and
Purchaser 2 hereby accepts to buy, Participation 2 with commercial
effect on 1 May 2005 (hereinafter the "
Effective
Date ") each of it and free and clear of any
encumbrances, together with all ancillary rights, including - as
applicable - the right to receive all undistributed dividends of
previous business years and the current business year.
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For the avoidance of doubt, by
Purchaser 2 acquiring the Participation 2 with commercial
effect as of the Effective Date Purchaser 1 also assumes the
existing shareholder accounts kept at Haleko for Seller 2,
i.e. the fixed capital, the current account resulting from
transformation and the retained earnings as set forth in
Appendix A, provided, however, as regards the current account
from transactions and the retained earnings account of
Seller 2 those two accounts shall be set-off against each
other so that Purchaser 2 only assumes the balance between those
two accounts.
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Pursuant to the terms and
conditions set forth in this Agreement Seller 1 hereby sells, and
Purchaser 1 hereby accepts to buy, the Loan with commercial effect
as of the Effective Date.
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The purchase price for the Share 1
(the " Share 1 Purchase
Price ") is
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The purchase price for the Share 2
(the " Share 2 Purchase
Price ") is
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The purchase price for the Share 3
(the " Share 3 Purchase
Price ") is
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The purchase price for the
Participation 1 (the " Participation 1 Purchase
Price ") is
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The purchase price for the
Participation 2 (the " Participation 2 Purchase
Price ") is
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The purchase price for the Loan
(the " Loan Purchase
Price ") is
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(the Share 1, 2 and 3 Purchase
Price, the Participation 1 Purchase Price, the
Participation 2 Purchase Price and the Loan Purchase Price
collectively hereinafter also referred to as the "
Total
Purchase
Price " which all together amounts to
€ 12,500,000 (in words: Euro twelve million five hundred
thousand).
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In addition,
Purchasers undertake that the receivable by Haleko against Weider
Nutrition Group, Inc. in the amount of € 344,198.52 is
reduced by 50 % to € 172,099.26. Seller 1 undertakes that the
remaining receivable in the amount of € 172,099.26 is paid to
Haleko within 10 days after the date hereof.
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[Intentionally left
blank.]
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[Intentionally left
blank.]
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Payment of the Total Purchase
Price
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The Total Purchase Price will be
paid at notarisation of the agreement by SWIFT Transaction to the
following account of the Seller 1
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(b)
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Seller 1 herewith confirms to
Purchaser 1 and Purchaser 2 the receipt of the Total Purchase
Price.
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For the avoidance of doubt,
Seller 1 and Seller 2 will internally decide upon
splitting the Total Purchase Price as between themselves. By
confirming to Purchaser 1 and Purchaser 2 that the Total
Purchase Price has been received by Seller 1 , the
Purchaser 1 and Purchaser 2 shall be discharged from
their respective obligation to pay the relevant part of the
Purchase Price for the acquisition of the
Shares 1, 2 and 3 and Participation 1 and
Participation 2 as well as the Loan.
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The represented notary is
instructed to file immediately the shareholder resolutions attached
hereto as Appendix 5.3
(a), on the resignation of Philip Cooper and where
applicable, Joseph W. Baty or any other representative of the
Sellers or any of their direct or indirect shareholders as a
managing director of each of Aktivkost, Food-Tech, Power Gym Ltd.
(UK) and HPH, with the commercial register ( Handelsregister ) at the local
court ( Amtsgericht
) Hamburg as far as Aktivkost, Food-Tech and HPH are concerned, and
with the relevant register, if applicable, as far as Power Gym Ltd.
(UK) is concerned.
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The represented notary is
instructed to file immediately the shareholder resolutions attached
hereto as Appendix 5.3
(b) , on the termination of the domination and
profit and loss transfer agreement between Seller 1 and
Aktivkost.
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The represented notary is
instructed to file immediately the application of entry at the
Commercial Register at the lower court of Hamburg of the change in
ownership of the Participation attached hereto as
Appendix 5.3
(c) .
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TRANSFER OF SHARE, LOAN AND
PARTICIPATIONS
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Seller 1 hereby assigns and
transfers Participation 1 and each of Share 1, Share 2, Share 3 to
Purchaser 1 who accepts each of such assignments and
transfers.
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Seller 2 hereby assigns and
transfers Participation 2 to Purchaser 2 who accepts such
assignment and transfer.
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Seller 1 hereby assigns and
transfers the Loan to Purchaser 1 who accepts such assignment
and transfer.
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REPRESENTATIONS AND WARRANTIES OF
THE SELLERS
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The Sellers and Purchasers hereby
agree pursuant to section 311, subsection 1, of the German Civil
Code (“ BGB ”) ( selbständiges
Garantieversprechen ) that the following is true as of
the date hereof (unless otherwise indicated) (the “
Representations and
Warranties ”). The Parties agree that all
Representations and Warranties, unless stated otherwise below,
apply to Haleko, Aktivkost, Food-Tech, HPH and the Subsidiaries (as
listed in Schedule 7.1 (b)). As far as Sports Direct Ltd., Power
Gym Ltd. and Multipower Nutrition S.a.r.l. are concerned, the
Representation and Warranties (except for section 7.1 of this
Agreement) are only given to the Seller’s
Knowledge.
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(a)
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Haleko, Aktivkost, Food-Tech and
HPH (the " Companies ") and the
Subsidiaries are duly organised and validly existing under the laws
of Germany or any other laws of the country of incorporation. The
statements contained in paragraph A and C and D of the Preamble to
this Agreement are correct and complete. The statements contained
in paragraph B of the Preamble to this Agreement are, to
Sellers’ knowledge, correct and complete in all material
respects.
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(b)
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The Companies have no direct or
indirect subsidiaries or affiliates and own no security or similar
interest in any company or entity except for as disclosed in
Schedule 7.1
(b) (the entities disclosed in Schedule 7.1 (b) are
referred to herein as the “ Subsidiaries
”).
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(c)
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The Sellers have delivered to the
Purchasers a complete and correct copy of the current version of
the valid articles of association of the Companies. Except for the
shareholder resolution described in section 5.3 of this Agreement
and except for as disclosed in Schedule 7.1 (c) , there are no
applications to the commercial register regarding changes of the
articles of association which have not been registered and no
shareholder resolutions which must be registered and have not yet
been filed with a commercial register.
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(d)
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The Companies and the Subsidiaries
have all material governmental and other authorisations, licenses
or permits necessary to carry on their respective business as now
conducted, except where the failure to have such authorization,
license, or permit would not have a Material Adverse Effect on the
Companies or the Subsidiaries
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Capitalisation and
Dividends
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(a)
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[Intentionally left
blank]
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(b)
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Seller 1 owns the Share and
Participation 2, and Seller 2 owns Participation 1. Seller 1 has
the unrestricted power and authority to dispose of the Share and
Participation 2, and Seller 2 has the unrestricted power and
authority to dispose of Participation 1.
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(c)
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The Share and the Participation as
well as all shares in the Subsidiaries have been validly issued,
are free of any encumbrances and are fully paid in, and no event
has occurred which could be regarded as a repayment of share
capital. Neither the Share, the Participation nor the shares in any
of the Subsidiaries are subject to or have been issued in violation
of pre-emptive or similar rights. No options or other rights to
acquire shares in the Companies or any of the Subsidiaries have
been granted. Neither the Share, the Participation nor any of the
shares in any of the Subsidiaries are subject to any voting or
trust agreements or arrangements or shareholders' agreement and
sub-participation or similar rights.
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(d)
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Since 1 January 2005 neither the
Sellers nor any of the affiliated companies of the Sellers has
directly or indirectly withdrawn any amount of cash from the
Companies or any of the Subsidiaries and no direct or indirect
payments have been made by the Companies or any of the Subsidiaries
to any of the Sellers or any of Sellers' affiliated companies other
than in the ordinary course of business and on arms’ length
terms and the measures which led to the receivable mentioned in
section 2.7 of this Agreement.
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No insolvency
proceedings
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Neither the Companies nor any of
the Subsidiaries have incurred the obligation to initiate
bankruptcy, insolvency or judicial composition proceedings. To the
Seller’s Knowledge, no bankruptcy, insolvency or judicial
composition proceedings have been initiated or applied for under
the laws under which the Companies or any of the Subsidiaries, as
applicable, are registered and, to the Seller’s Knowledge,
there exist no circumstances which would justify the opening of
such proceedings or the avoidance, challenge or rescission of this
Agreement under the German Insolvency Code.
To
the Seller’s Knowledge, the audited financial statements of
Haleko and the financial statements of the other Companies, each
for the period ended 30 April 2005, as attached as copies in
Schedule 7.4
(a) (the “ Financial Statements ”)
are true and accurate in all material respects, have been prepared
in accordance with the rules of the German Commercial Code and with
generally accepted German (or other locally applicable) accounting
standards and present, in all material respects, a true and fair
view of the assets and liabilities ( Vermögenslage ), financial
condition ( Finanzlage ) and results of
operation ( Ertragslage ) of the Companies. To
the Seller’s knowledge, the Companies, on a consolidated
basis do not have any material contingent liabilities other than
those shown in the Financial Statements or incurred in the ordinary
course of business or except such liabilities which would not have
a Material Adverse Effect on the Companies.
To
the Seller’s Knowledge, all material accounts, books,
financial and other records (the “ Records ”) of the
Companies and each of the Subsidiaries have been fully, properly
and accurately maintained, in all material respects, to a standard
appropriate for the Records, are in the possession or under the
control of the Companies or the Subsidiaries, as applicable, and
provide a fair and accurate representation of the Companies' and
each of the Subsidiaries’ business in all material
respects.
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Absence of certain
changes
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(a)
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the Sellers have not resolved to
distribute any dividends and no such distribution has taken place
nor have the Companies or any of the Subsidiaries made other
payments to the Sellers or any affiliate thereof other than in an
arm's length transaction in the ordinary course of business;
and
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(b)
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no
transaction has taken place or has been initiated relating to the
Companies, any of the Subsidiaries or any of their respective
assets other than in the ordinary course of business or other than
stated in this Agreement, the schedules and exhibits thereto or
disclosed to the Purchasers or Atlantic Grupa or their advisors in
the Data Room (as defined below), except as such transaction that
would not have a Material Adverse Effect on the Companies or any of
the Subsidiaries, as applicable.
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Title to and condition of the
assets
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The Companies and any of the
Subsidiaries:
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(a)
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except as stated in
Schedule
7.7(a), hold unrestricted title to, or are
authorized to use, all material assets necessary for their business
operation. No assets are encumbered by third party rights with the
exception of statutory pledges, reservations of title and security
transfers of title as well as other encumbrances entered into in
the normal course of business (e.g. bank loan agreements);
and
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(b)
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their material machinery and
equipment currently used is in proper working conditions in all
material respects except for normal wear and tear and except as
listed in Schedule
7.7.(b) ,
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except for the inaccuracy of the
foregoing representations (a) and (b) that would not have a
Material Adverse Effect on the Companies and any of the
Subsidiaries.
Seller 1 has legal and beneficial
title to the Loan of which as of the date of this Agreement are
outstanding no more than € 831,918.76. The Loan is free
of any encumbrances or other third party rights. No payments on the
Loan have been made since 30 April 2005.
Information has been made available
to the Purchasers and Atlantic Grupa and their advisors in a data
room (the “ Data
Room ”), the index for which (the “
Index
”) is attached hereto as Exhibit 7.9.
To
the Sellers’ Knowledge, the Companies and the Subsidiaries
have submitted all material tax returns, relating to any domestic
and foreign taxes required to be filed in the 3 (three) years prior
hereto, and all material Taxes imposed on the Companies and/or the
Subsidiaries and due in the relevant period have been paid or have
been provided for in the relevant balance sheet of the Companies or
the Subsidiaries, as applicable. "Tax" or "Taxes" shall
mean any taxes, charges, duties, and levies of any kind imposed by
any federal, state, local or foreign governmental authority
competent for the imposition of such tax.
To
the Sellers' Knowledge, the consummation of the sale and transfer
of the Participation 1 and Participation 2 to
Purchaser 1 and Purchaser 2 respectively should in view
of the supplemental tax balance sheets kept for Seller 1 and
Seller 2 in relation to the Participation 1 and
Participation 2 and loss carried forward not cause additional
trade tax burdens for Haleko and/or Purchaser 1 and
Purchaser 2.
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