UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
_________________
FORM 8-K
_________________
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 6, 2015
_________________
CHIQUITA BRANDS INTERNATIONAL, INC.
(Exact Name of Registrant as Specified in its Charter)
_________________
| New Jersey | 1-1550 | 04-1923360 |
| (State or Other Jurisdiction | (Commission File Number) | (IRS Employer |
| of Incorporation) | Identification No.) |
| 550 South Caldwell Street, Charlotte, North Carolina 28202 |
| (Address of Principal Executive Offices) |
Registrant’s telephone number, including area code: (980) 636-5000
N/A
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Introduction and Background
As previously disclosed, on October 26, 2014, Chiquita Brands International, Inc., a New Jersey corporation (“Chiquita”), entered into an Agreement and Plan of Merger (the “Merger Agreement”) with Cavendish Global Limited, a private limited company incorporated under the laws of England and Wales (“Parent”), Cavendish Acquisition Corporation, a New Jersey corporation and a direct, wholly owned subsidiary of Parent (“Merger Sub”), and, solely for purposes of Article IX of the Merger Agreement, Burlingtown UK LTD, a company incorporated in England and Wales (“Burlingtown”) and Erichton Investments Ltd., a company incorporated in the British Virgin Islands (“Erichton” and, together with Merger Sub, Parent and Burlingtown, “Cutrale-Safra”), pursuant to which, among other things, Merger Sub would merge with and into Chiquita (the “Merger”), with Chiquita as the surviving corporation and a wholly owned subsidiary of Parent. In accordance with the terms of the Merger Agreement, on January 6, 2015, the Merger was completed.
The foregoing description of the Merger and the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is attached as Exhibit 2.1 hereto and is incorporated by reference herein.
| Item 3.01 | Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing |
In connection with the closing of the Merger, Chiquita notified the New York Stock Exchange (the “NYSE”) on January 6, 2015, that any remaining outstanding Shares not owned, directly or indirectly, by Parent, Merger Sub or Chiquita or not held by any Chiquita subsidiary were converted into the right to receive the Offer Price and requested that the NYSE file with the Securities and Exchange Commission (the “SEC”) a Notification of Removal from Listing and/or Registration Under Section 12(b) on Form 25 to delist and deregister the Shares under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Trading of the Shares on the NYSE will be suspended prior to the opening of trading on January 7, 2015. Chiquita also intends to file with the SEC a Form 15 requesting that Chiquita’s reporting obligations under Section 13 and 15(d) of the Exchange Act with respect to the Shares, Chiquita’s 4.25% Convertible Senior Notes due 2016 and, when appropriate, Chiquita's 7.875% Senior Secured Notes due 2021, be suspended.
| Item 3.02 | Unregistered Sales of Equity Securities |
The information set forth in Item 5.01 below is incorporated by reference herein.
| Item 3.03 | Material Modification to Rights of Security Holders |
At the effective time of the Merger (the “Effective Time”), each outstanding Share, other than Shares owned, directly or indirectly, by Parent, Merger Sub or Chiquita or held by any Chiquita subsidiary which were cancelled, was converted into the right to receive the Offer Price (as defined below).
| Item 5.01 | Changes in Control of Registrant |
Pursuant to the Merger Agreement, upon the terms and subject to the conditions thereof, Merger Sub commenced a tender offer (the “Offer”) on November 4, 2014 to acquire all the outstanding shares of common stock of Chiquita, par value $0.01 per share (the “Shares”), at a price of $14.50 per Share, net to the seller in cash, without interest and subject to any required withholding of taxes (the “Offer Price”), upon the terms and subject to the conditions set forth in the Offer to Purchase, dated November 4, 2014 (the “Offer to Purchase”), and in the related Letter of Transmittal, each filed as Exhibit (a)(1)(A) and Exhibit (a)(1)(B), respectively, to the Tender Offer Statement on Schedule TO dated November 4, 2014 (as amended or supplemented from time to time, the “Schedule TO”) filed by Merger Sub and Parent.
On January 6, 2015, Cutrale-Safra announced the completion of the Offer. The Offer expired at 12:00 midnight, New York City time, at the end of the day on January 5, 2015. According to Computershare Trust Company, N.A., the depositary for the Offer, 39,791,364 Shares were validly tendered and not validly withdrawn (not including 1,748,335 Shares tendered pursuant to notices of guaranteed delivery), which represented approximately 84.46% of the outstanding Shares. Merger Sub has accepted for payment, and has made payment to the depositary (which is acting as agent for tendering stockholders for the purpose of receiving payments for tendered Shares) for all Shares that were validly tendered and not validly withdrawn in accordance with the terms of the Offer.
Under the Merger Agreement, because Parent and Merger Sub and other affiliates of Parent did not collectively beneficially own at least 90% of the Shares upon completion of the Offer, Merger Sub was deemed to have exercised the option (the “Top-Up Option”) granted to Merger Sub under the Merger Agreement to purchase directly from Chiquita newly-issued Shares at the Offer Price. Chiquita issued to Merger Sub 41,286,271 Shares (the “Top-Up Shares”) for an aggregate purchase price of $598,650,930, which was paid by delivery of a promissory note. The Top-Up Shares were issued without registration under the Securities Act of 1933, as amended (the “Securities Act”), in reliance upon the exemption from registration set forth in Section 4(2) of the Securities Act.
Upon the purchase of the Top-Up Shares on January 6, 2015, Merger Sub held a total of 81,077,635 Shares, representing more than 90% of the outstanding Shares. Following the purchase of Shares in the Offer and the exercise of the Top-Up Option, Merger Sub and Chiquita completed the Merger through the “short-form” procedures available under the New Jersey Business Corporation Act.
As a result of Merger Sub’s acquisition of Shares pursuant to the Offer and the consummation of the Merger, a change in control of Chiquita occurred and Chiquita became a wholly owned subsidiary of Parent. Merger Sub purchased the Shares (excluding the Top-Up Shares) for an aggregate amount of approximately $683 million and ultimately obtained the funds for the purchase from Parent. Parent had previously obtained equity commitments of up to $1 billion in the aggregate, or $500 million from each of Burlingtown and Erichton (whose obligations, on December 12, 2014, were transferred to and assumed by J. Safra Foods Holdings S.à.r.l.). Such commitments were honored and Parent contributed or otherwise advanced, or caused to be advanced, to Merger Sub the proceeds of the equity commitments.
The foregoing description of the Offer, Merger and the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is attached as Exhibit 2.1 hereto and is incorporated by reference herein.
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers |
In connection with the Merger, as of the Effective Time and pursuant to the Merger Agreement, the members of Chiquita’s board of directors (the “Board of Directors”) immediately prior to such time resigned as directors of Chiquita, and Michael Rubinoff (age 52), Carlos Bertaco Bomfim (age 49), Philip Warner (age 51) and Celso Barison (age 65) were appointed as the new directors of Chiquita. No director resigned because of any disagreement with Chiquita on any matter relating to its operations, policies or practices. At the time the new directors were appointed, Chiquita had not yet determined on which committees, if any, of the Board of Directors they would serve.
As described in the press release announcing completion of the Merger, Brian W. Kocher (age 45) has assumed the position of interim Chief Executive Officer and President, succeeding Edward L. Lonergan. Mr. Kocher joined Chiquita in 2005 as the Company’s Vice President, Controller and Chief Accounting Officer. From October 2007 until December 2010 he served as President of North America. In January 2011 Mr. Kocher was appointed President, Europe and the Middle East, responsible for all of the Company’s operations across that region and in February 2012 was appointed as the Company’s Senior Vice President and Chief Financial Officer. In December 2012, Mr. Kocher was appointed as the Company's Chief Operating Officer. Prior to joining Chiquita, Mr. Kocher held responsible finance and executive positions for more than 10 years at several companies.
There are no family relationships between Mr. Kocher and any director or executive officer of the Company, and he has no direct or indirect material interest in any transactions with the Company.
A copy of the press release announcing completion of the Merger, which also discusses other anticipated changes in management, is attached as Exhibit 99.2 hereto and is incorporated by reference herein.
| Item 5.03 | Amendments to Certificate of Incorporation or Bylaws; Change of Fiscal Year |
As a result of the Merger, at the Effective Time, Chiquita’s Fourth Restated Certificate of Incorporation was amended and restated (as amended and restated, the “Amended and Restated Certificate of Incorporation”) and Chiquita’s Restated By-Laws were amended and restated (as amended and restated, the “Amended and Restated By-Laws”).
The Amended and Restated Certificate of Incorporation and the Amended and Restated By-Laws are attached hereto as Exhibits 3.1 and 3.2, respectively, and are incorporated by reference herein.
| Item 8.01 | Other Events |
On January 6, 2015, Chiquita and Cutrale-Safra issued a joint press release announcing the completion of the Offer and the expected consummation of the Merger, as well as a joint press release announcing completion of the Merger. A copy of the press releases are attached as Exhibits 99.1 and 99.2 to this report and are incorporated by reference herein.
| Item 9.01 | Financial Statements and Exhibits |
| (d) | Exhibits. |
|
EXHIBIT |
DESCRIPTION | |
| 2.1 | Agreement and Plan of Merger, dated as of October 26, 2014, by and among Chiquita, Parent, Merger Sub, Burlingtown and Erichton (incorporated by reference to Exhibit 2.1 to Chiquita’s Current Report on Form 8-K filed with the SEC on October 27, 2014) | |
| 3.1 | Amended and Restated Certificate of Incorporation of Chiquita | |
| 3.2 | Amended and Restated By-Laws of Chiquita | |
| 20.1 | Offer to Purchase dated November 4, 2014 (incorporated by reference to Exhibit (a)(1)(A) to the Schedule TO, as originally filed with the SEC on November 4, 2014) | |
| 99.1 | Press Release, dated January 6, 2015 (incorporated by reference to Exhibit (a)(5)(G) to the Schedule TO, as amended and filed with the SEC on January 6, 2015) | |
| 99.2 | Press Release, dated January 6, 2015 | |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Date: January 6, 2015 | |||
| CHIQUITA BRANDS INTERNATIONAL, INC. | |||
| By: | /s/ Brian W. Kocher | ||
| Brian W. Kocher | |||
| President and Chief Executive Officer | |||
EXHIBIT INDEX
|
EXHIBIT |
DESCRIPTION | |
| 2.1 | Agreement and Plan of Merger, dated as of October 26, 2014, by and among Chiquita, Parent, Merger Sub, Burlingtown and Erichton (incorporated by reference to Exhibit 2.1 to Chiquita’s Current Report on Form 8-K filed with the SEC on October 27, 2014) | |
| 3.1 | Amended and Restated Certificate of Incorporation of Chiquita | |
| 3.2 | Amended and Restated By-Laws of Chiquita | |
| 20.1 | Offer to Purchase dated November 4, 2014 (incorporated by reference to Exhibit (a)(1)(A) to the Schedule TO, as originally filed with the SEC on November 4, 2014) | |
| 99.1 | Press Release, dated January 6, 2015 (incorporated by reference to Exhibit (a)(5)(G) to the Schedule TO, as amended and filed with the SEC on January 6, 2015) | |
| 99.2 | Press Release, dated January 6, 2015 | |
Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF
CHIQUITA BRANDS INTERNATIONAL, INC.
Chiquita Brands International, Inc., a corporation organized and existing under the laws of the State of New Jersey (the “Corporation”), hereby restates and integrates its Certificate of Incorporation, as amended, and also substantively amends such Certificate of Incorporation, to read in full as herein set forth:
ARTICLE ONE
The name of the Corporation shall be Chiquita Brands International, Inc.
ARTICLE TWO
The address of the Corporation’s current registered office is 830 Bear Tavern Road, West Trenton, New Jersey 08628 and the name of its current registered agent thereat is Corporation Services Company.
ARTICLE THREE
The objects and purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the New Jersey Business Corporation Act.
ARTICLE FOUR
The amount of the total authorized share capital of the Corporation shall be One Thousand (1,000) Common Shares, par value $0.01 per share.
The Board of Directors may from time to time offer for subscription or otherwise issue or sell any or all of the unissued shares of share capital which may be held in the treasury of the Corporation, to such persons, firms or corporations and for such consideration (so far as may be permitted by the laws of the State of New Jersey) as it shall from time to time in its absolute discretion determine. No holder of share capital shall have any pre-emptive right as such holder to subscribe for, purchase or receive any part of any new or additional issue of shares of any class, including unissued and treasury shares, or obligations or other securities convertible into or exchangeable for shares of any class, or warrants or other instruments evidencing rights or options to subscribe for, purchase or receive any shares of any class, whether now or hereafter authorized and whether issued for cash or other consideration or by way of dividend.
ARTICLE FIVE
The number of directors of the Corporation shall be such number, not less than one nor more than twenty-five, as may, from time to time, be determined in accordance with the By-Laws. The number of directors constituting the Board of Directors of the Corporation as of the date of this Amended and Restated Certificate of Incorporation is four. The names of the directors of the Corporation are as follows, and the address of the directors is 550 Fifth Avenue, New York, NY:
Michael Rubinoff
Carlos Bertaco Bomfim
Philip Warner
Celso Barison
ARTICLE SIX
Section 1. Limitation of Liability.
| (a) | For purposes of this ARTICLE SIX, the following definitions shall apply: |
(1) “Expenses” shall mean all reasonable costs, disbursements, fees of attorneys, accountants and other professionals, expert fees, investigative fees and all other similar expenses.
(2) “Indemnitee” shall mean a director, officer or employee, or trustee or other fiduciary of the Corporation or any employee benefit plan adopted or sponsored by the Corporation, or a director, officer, employee, trustee or other fiduciary, member, partner of, or persons serving in a similar capacity with any other corporation, partnership, limited liability company, joint venture, sole proprietorship, trust, employee benefit plan, or other enterprise which such person is serving at the request of the Corporation. Any person serving simultaneously as a director, officer or employee of the Corporation and as a director, officer, employee, trustee or other fiduciary, member, partner of, or in a similar capacity with (i) any enterprise in which the Corporation owns at least 20% of the equity interests of such enterprise or (ii) any employee benefit plan adopted or sponsored by such an enterprise, shall be conclusively presumed to be serving in such capacity at the request of the Corporation.
(3) “Liabilities” shall mean all Expenses and any and all amounts paid or incurred in satisfaction of settlements, judgments, fines, and penalties (including, without limitation, any excise taxes imposed in connection with service as a fiduciary of an employee benefit plan).
(4) “Proceeding” shall mean any civil, criminal, administrative, investigative or arbitration action (or other form of alternative dispute resolution), suit, or proceeding, including, without limitation, any proceeding by or in the right of the Corporation, or any appeal thereof, or any inquiry or investigation which could lead to such action, suit, or proceeding.
(b) To the fullest extent permitted by the New Jersey Business Corporation Act as the same exists or may hereafter be amended, an officer or director of the Corporation shall not be liable to the Corporation or its shareholders for damages for breach of any duty, except that nothing contained herein shall relieve an officer or a director from liability for breach of a duty based upon an act or omission (a) in breach of such person's duty of loyalty to the Corporation or its shareholders, (b) not in good faith or involving a knowing violation of law, or (c) resulting in receipt by such person of an improper personal benefit. Any amendment or modification of the foregoing provision or the applicable provisions of the New Jersey Business Corporation Act shall not adversely affect any right or protection of an officer or a director of the Corporation existing at the time of such amendment or modification, and such right or protection shall continue as to a person who has ceased to be an officer or a director and shall inure to the benefit of the heirs, executor and administrators of such a person.
(c) Each person who was or is made a party, or is threatened to be made a party to, or is otherwise involved (including as a witness) in any pending, threatened, or completed (by judgment, settlement or otherwise) Proceeding by reason of his or her being or having been an Indemnitee shall be indemnified and held harmless by the Corporation to the fullest extent not prohibited by the New Jersey Business Corporation Act, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said Act permitted prior to such amendment), from and against any and all Liabilities incurred or suffered in connection with any such Proceeding, and such indemnification shall continue as to a person who has ceased to be an Indemnitee and shall inure to the benefit of his or her heirs, executors, administrators, and assigns. Notwithstanding the foregoing and except as set forth in Section 2 of this ARTICLE SIX, the Corporation shall indemnify any person seeking indemnification in connection with a Proceeding (or part thereof) initiated by such person only if such Proceeding (or part thereof) was specifically authorized by the Board of Directors of the Corporation.
(d) The right to indemnification conferred in this ARTICLE SIX (1) shall be a contract right (and any subsequent repeal of, or amendment to, this ARTICLE SIX shall not affect the right to indemnification based upon any act or omission while this ARTICLE SIX is in effect), (2) is intended to be retroactive to events occurring prior to the adoption of this ARTICLE SIX to the fullest extent permitted by applicable law, and (3) shall include the right to be paid by the Corporation the Expenses incurred in connection with any Proceeding in advance of the final disposition of such Proceeding; provided that if the New Jersey Business Corporation Act or the Board of Directors so requires, the payment of such Expenses in advance of the final disposition of a Proceeding shall be made only upon receipt by the Corporation of an undertaking, by or on behalf of such Indemnitee, to repay all amounts so advanced if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified under this ARTICLE SIX or otherwise.
Section 2. Right of Claimant to Bring Suit. If a claim under Section 1 of this ARTICLE SIX is not paid in full by the Corporation within thirty (30) days after a written request has been received by the Corporation, the claimant may, at any time thereafter, apply to a court for an award of indemnification by the Corporation for the unpaid amount of the claim, and, if successful on the merits or otherwise in connection with any such Proceeding, or in the defense of any claim, issue, or matter therein, the claimant shall be entitled also to be paid by the Corporation any and all Expenses incurred or suffered in connection with such Proceeding. It shall be a defense to any such action (other than an action brought to enforce a claim for the advancement of Expenses incurred in connection with any Proceeding where the required undertaking, if any, has been tendered to the Corporation) that the claimant has not met the standard of conduct which makes it permissible under the New Jersey Business Corporation Act for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, its independent legal counsel, or its shareholders) to have made a determination prior to the commencement of such Proceeding that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the New Jersey Business Corporation Act, nor an actual determination by the Corporation (including its Board of Directors, its independent legal counsel, or its shareholders) that the claimant has not met such applicable standard of conduct, nor the termination of any Proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.
Section 3. Non-Exclusivity of Rights. The right to indemnification and advancement of Expenses provided by or granted pursuant to this ARTICLE SIX shall not exclude or be exclusive of any other rights to which any person (including agents) may be entitled under this Certificate of Incorporation, the By-Laws of the Corporation, agreement, vote of shareholders, statute or otherwise; provided that no indemnification shall be made to or on behalf of such person if a final, non-appealable judgment or adjudication adverse to such person establishes that such person's acts or omissions (a) were in breach of his duty of loyalty to the Corporation or its shareholders, (b) were not in good faith or involved a knowing violation of law, or (c) resulted in such person's receipt of an improper personal benefit.
Section 4. Insurance. The Corporation may purchase and maintain insurance on behalf of any Indemnitee against any Liabilities incurred or asserted against him in any Proceeding by reason of such person's being or having been such an Indemnitee, whether or not the Corporation would have the power to indemnify such person against such Expenses and Liabilities under the provisions of this ARTICLE SIX or otherwise.
Section 5. Reliance. Persons who after the date of the adoption of this provision become or remain Indemnitees or who, while an Indemnitee, become or remain a director, officer, employee or agent of a subsidiary, shall be conclusively presumed to have relied on the rights to indemnity, advance of Expenses and other rights contained in this ARTICLE SIX in entering into or continuing such service. The rights to indemnification and to the advance of Expenses conferred in this ARTICLE SIX shall apply to claims made against an Indemnitee arising out of acts or omissions which occurred or occur both prior and subsequent to the adoption hereof.
Section 6. Merger or Consolidation. For purposes of this ARTICLE SIX, references to the “Corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers and employees, so that any person who is or was a director, officer or employee of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee, trustee, member, partner or persons serving in a similar capacity of another corporation, partnership, limited liability company, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise, shall stand in the same position under this ARTICLE SIX with respect to the resulting or surviving corporation as he or she would have with respect to such constituent corporation if its separate existence had continued.
Exhibit 3.2
AMENDED AND RESTATED BY-LAWS OF
CHIQUITA BRANDS INTERNATIONAL, INC.
ARTICLE I
Meetings of Shareholders; Shareholders’
Consent in Lieu of Meeting
SECTION 1.01. Annual Meeting. The annual meeting of the shareholders for the election of directors, and for the transaction of such other business as may properly come before the meeting, shall be held at such place, date and hour as shall be fixed by the Board of Directors and designated in the notice or waiver of notice thereof.
SECTION 1.02. Special Meetings. A special meeting of the shareholders for any purpose or purposes may be called by the Board of Directors, the Chairman of the Board of Directors, the President or the Secretary of the Corporation or a shareholder or shareholders holding of record at least a majority of the shares of common shares, par value $0.01 per share, of the Corporation (“Common Shares”) issued and outstanding, such meeting to be held at such place, date and hour as shall be designated in the notice or waiver of notice thereof.
SECTION 1.03. Shareholders’ Consent in Lieu of Meeting. Any action required by the laws of the State of New Jersey to be taken at any annual or special meeting of the shareholders of the Corporation, or any action which may be taken at any annual or special meeting of such shareholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by all the shareholders.
SECTION 1.04. Quorum and Adjournment. Except as otherwise provided by law, by the Certificate of Incorporation of the Corporation or by these By-laws, the presence, in person or by proxy, of the holders of a majority of the aggregate voting power of the shares issued and outstanding, entitled to vote thereat, shall constitute a quorum for the transaction of business at all meetings of shareholders. If a quorum shall not be present at any meeting of shareholders, the shareholders present, although less than a quorum, shall have the power to adjourn the meeting.
SECTION 1.05. Majority Vote Required. When a quorum is present at any meeting of shareholders, other than the election of directors, actions by the stockholders shall be authorized by the vote of a majority of the votes cast by the holders entitled to vote thereon, unless a different vote is required by the Certificate of Incorporation, these By-laws or the New Jersey Business Corporation Act, in which case such express provision shall govern and control. In the case of an election of directors, directors shall be elected by a plurality of the votes cast at such election.
SECTION 1.06. Manner of Voting. At each meeting of shareholders, each shareholder having the right to vote shall be entitled to vote in person or by proxy. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed before being voted. Each shareholder shall be entitled to vote each share of stock having voting power registered in his or her name on the books of the Corporation on the record date fixed, as provided in Section 6.07 of these By-laws, for the determination of shareholders entitled to vote at such meeting. No election of directors need be by written ballot.
ARTICLE II
Board of Directors
SECTION 2.01. General Powers. The management of the affairs of the Corporation shall be vested in the Board of Directors, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by law or by the Certificate of Incorporation directed or required to be exercised or done by the shareholders.
SECTION 2.02. Number and Term of Office. The number of directors which shall constitute the whole Board of Directors shall be such number, not less than one nor more than twenty-five, as may be fixed from time to time by a vote of a majority of the whole Board of Directors. The term “whole Board of Directors” is used herein to refer to the total number of directors which the Corporation would have if there were no vacancies. Directors need not be shareholders. Each director shall hold office until his successor is elected and qualified, or until his earlier death or resignation or removal in the manner hereinafter provided.
SECTION 2.03. Resignation, Removal and Vacancies. Any director may resign at any time by giving written notice of his resignation to the Board of Directors, the Chairman of the Board of Directors, the President or the Secretary of the Corporation. Such resignation shall take effect at the time specified therein or, if the time be not specified, upon receipt thereof; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Any director or the entire Board of Directors may be removed, with or without cause, at any time by the holders of a majority of the shares then entitled to vote at an election of directors or by written consent of the shareholders pursuant to Section 1.03 of Article I hereof.
Vacancies in the Board of Directors and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, although less than a quorum, or by a sole remaining director.
SECTION 2.04. Meetings. (a) Annual Meeting. As soon as practicable after each annual election of directors, the Board of Directors shall meet for the purpose of organization and the transaction of other business, unless it shall have transacted all such business by written consent pursuant to Section 2.05 of this Article II.
(b) Other Meetings. Other meetings of the Board of Directors shall be held at such times and places as the Board of Directors, the Chairman of the Board of Directors or the President shall from time to time determine.
(c) Notice of Meetings. The Secretary of the Corporation shall give notice to each director of each meeting, including the time, place and purpose of such meeting. Notice of each such meeting shall be mailed to each director, addressed to him at his residence or usual place of business, at least two days before the day on which such meeting is to be held, or shall be sent to him at such place by telegraph, cable, wireless or other form of recorded communication, or be delivered personally or by telephone not later than the day before the day on which such meeting is to be held, but notice need not be given to any director who shall attend such meeting. A written waiver of notice, signed by the person entitled thereto, whether before or after the time of the meeting stated therein, shall be deemed equivalent to notice.
(d) Place of Meetings. The Board of Directors may hold its meetings at such place or places within or without the State of New Jersey as the Board of Directors may from time to time determine, or as shall be designated in the respective notices or waivers of notice thereof.
(e) Quorum and Manner of Acting. One third of the total number of directors then in office shall be present in person at any meeting of the Board of Directors in order to constitute a quorum for the transaction of business at such meeting, and the vote of a majority of those directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or act of the Board of Directors, except as otherwise expressly required by law or these By-laws. In the absence of a quorum for any such meeting, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present.
(f) Organization. At each meeting of the Board of Directors, one of the following shall act as chairman of the meeting and preside, in the following order of precedence:
| (i) | the Chairman of the Board of Directors; |
| (ii) | the President (if the President shall be a member of the Board of |
Directors at such time); and
| (iii) | any director chosen by a majority of the directors present. |
The Secretary of the Corporation or, in the case of his absence, any person (who shall be an Assistant Secretary of the Corporation, if an Assistant Secretary of the Corporation is present) whom the Chairman of the Board of Directors shall appoint shall act as secretary of such meeting and keep the minutes thereof.
SECTION 2.05. Directors’ Consent in Lieu of Meeting. Action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or committee, as the case may be, consent thereto in writing and the writing or writings are filed with the minutes or the proceedings of the Board of Directors or committee.
SECTION 2.06. Action by Means of Conference Telephone or Similar Communications Equipment. Any one or more members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors or any such committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting.
ARTICLE III
Committees of the Board
SECTION 3.01. Appointment of Executive Committee. The Board of Directors may from time to time by resolution passed by a majority of the whole Board of Directors designate from its members an Executive Committee to serve at the pleasure of the Board of Directors. The Chairman of the Executive Committee shall be designated by the Board of Directors. The Board of Directors may designate one or more directors as alternate members of the Executive Committee, who may replace any absent or disqualified member or members at any meeting of the Executive Committee. The Board of Directors shall have power at any time to change the membership of the Executive Committee, to fill all vacancies in it and to discharge it, either with or without cause.
SECTION 3.02. Procedures of Executive Committee. The Executive Committee, by a vote of a majority of its members, shall fix by whom its meetings may be called and the manner of calling and holding its meetings, shall determine the number of its members requisite to constitute a quorum for the transaction of business and shall prescribe its own rules of procedure, no change in which shall be made except by a majority vote of its members or by the Board of Directors.
SECTION 3.03. Powers of Executive Committee. During the intervals between the meetings of the Board of Directors, unless otherwise determined from time to time by resolution passed by the whole Board of Directors, the Executive Committee shall possess and may exercise all the powers and authority of the Board of Directors in the management and direction of the business and affairs of the Corporation to the extent permitted by the New Jersey Business Corporation Act, and may authorize the seal of the Corporation to be affixed to all papers which may require it, except that the Executive Committee shall not have power or authority in reference to:
| (a) | amending the Certificate of Incorporation; |
| (b) | altering or repealing these By-laws; |
| (c) | electing or appointing any director, or removing any officer or director; |
| (d) | submitting to shareholders of the Corporation any action which pursuant to the New Jersey Business Corporation Act requires shareholders approval; |
| (e) | amending or repealing any resolution adopted by the Board of Directors which by its terms is amendable or repealable only by the Board of Directors; |
| (f) | adopting an agreement of merger or consolidation; |
| (g) | recommending to the shareholders the sale, lease or exchange of all or substantially all of the Corporation’s property and assets; |
| (h) | recommending to the shareholders a dissolution of the Corporation or a revocation of a dissolution; |
| (i) | filling vacancies in the Board of Directors or in any committee or fixing compensation of members of the Board of Directors for serving on the Board of Directors or on any committee; or |
| (j) | declaring a dividend or authorizing the issuance of shares. |
SECTION 3.04. Reports of Executive Committee. The Executive Committee shall keep regular minutes of its proceedings, and all action by the Executive Committee shall be reported promptly to the Board of Directors. Such action shall be subject to review by the Board of Directors, provided that no rights of third parties shall be affected by such review.
SECTION 3.05. Other Committees. The Board of Directors, by resolution adopted by a majority of the whole Board of Directors, may designate from among its members one or more other committees, each of which shall have such authority of the Board of Directors as may be specified in the resolution of the Board of Directors designating such committee; provided, however, that any such committee so designated shall not have any powers not allowed to the Executive Committee under Section 3.03 of this Article III. The Board of Directors shall have power at any time to change the members of any such committee, designate alternate members of any such committee and fill vacancies therein; and any such committee shall serve at the pleasure of the Board of Directors.
ARTICLE IV
Officers
SECTION 4.01. Officers. The officers of the Corporation shall be a President, a Secretary and a Treasurer and may include a Chairman of the Board of Directors, one or more Vice Presidents and one or more Assistant Secretaries or Assistant Treasurers. Any two or more offices may be held by the same person.
SECTION 4.02. Authority and Duties. All officers, as between themselves and the Corporation, shall have such authority and perform such duties in the management of the Corporation as may be provided in these By-laws or, to the extent not so provided, by the Board of Directors.
SECTION 4.03. Term of Office, Resignation and Removal. All officers shall be elected or appointed by the Board of Directors and shall hold office for such term as may be prescribed by the Board of Directors. The Chairman of the Board of Directors, if any, shall be elected or appointed from among the members of the Board of Directors. Each officer shall hold office until his successor has been elected or appointed and qualified or his earlier death or resignation or removal in the manner hereinafter provided. The Board of Directors may require any officer to give security for the faithful performance of his duties.
Any officer may resign at any time by giving written notice to the President or the Secretary of the Corporation, and such resignation shall take effect at the time specified therein or, if the time when it shall become effective is not specified therein, at the time it is accepted by action of the Board of Directors. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
All officers and agents elected or appointed by the Board of Directors shall be subject to removal at any time by the Board of Directors with or without cause.
SECTION 4.04. Vacancies. If an office becomes vacant for any reason, the Board of Directors shall be entitled to fill such vacancy. Any officer so appointed or elected by the Board of Directors shall serve only until such time as the unexpired term of his predecessor shall have expired unless reelected or reappointed by the Board of Directors.
SECTION 4.05. Chairman of the Board of Directors. If there shall be a Chairman of the Board of Directors, he shall preside at meetings of the Board of Directors and of the shareholders at which he is present, and shall give counsel and advice to the Board of Directors and the officers of the Corporation on all subjects touching the welfare of the Corporation and the conduct of its business. He shall perform such other duties as the Board of Directors may from time to time determine. Except as otherwise provided by resolution of the Board of Directors he shall be ex officio a member of all committees of the Board of Directors.
SECTION 4.06. The President. The President of the Corporation shall be the Chief Executive Officer of the Corporation and, unless the Chairman of the Board of Directors be present or the Board of Directors has provided otherwise by resolution, he shall preside at all meetings of the Board of Directors and the shareholders at which he is present except, in the case of a meeting of the Board of Directors, if the President is not a member of the Board of Directors at such time. He shall have general and active management and control of the business and affairs of the Corporation subject to the control of the Board of Directors and the Executive Committee, if any, and shall see that all orders and resolutions of the Board of Directors and the Executive Committee, if any, are carried into effect.
SECTION 4.07. Vice Presidents. The Vice President of the Corporation, if any, or if there be more than one, the Vice Presidents in the order of their seniority or in any other order determined by the Board of Directors, shall, in the absence or disability of the President, perform the duties and exercise the powers of the President, and shall generally assist the President and perform such other duties as the Board of Directors or the President shall prescribe.
SECTION 4.08. The Secretary. The Secretary of the Corporation shall, to the extent practicable, attend all meetings of the Board of Directors and all meetings of the shareholders and shall record all votes and the minutes of all proceedings in a book to be kept for that purpose, and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the shareholders and of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or the President, under whose supervision he shall perform such duties. He shall keep in safe custody the seal of the Corporation and affix the same to any duly authorized instrument requiring it and, when so affixed, it shall be attested by his signature or by the signature of the Treasurer or an Assistant Secretary or Assistant Treasurer. He shall keep in safe custody the certificate books and shareholder records and such other books and records as the Board of Directors may direct and shall perform all other duties as from time to time may be assigned to him by the Chairman of the Board of Directors, the President or the Board of Directors.
SECTION 4.09. Assistant Secretaries. The Assistant Secretary of the Corporation, if any, or if there be more than one, the Assistant Secretaries in order of their seniority or in any other order determined by the Board of Directors shall, in the absence or disability of the Secretary of the Corporation, perform the duties and exercise the powers of the Secretary of the Corporation and shall perform such other duties as the Board of Directors or the Secretary of the Corporation shall prescribe.
SECTION 4.10. The Treasurer. The Treasurer of the Corporation shall have the care and custody of the corporate funds and other valuable effects, including securities, and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation, and shall deposit all moneys and other valuable effects to the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President and directors, at the regular meetings of the Board of Directors, or whenever they may require it, an account of all his transactions as Treasurer and of the financial condition of the Corporation; and, in general, perform all the duties incident to the office of Treasurer and such other duties as from time to time may be assigned to him by the President or the Board of Directors.
SECTION 4.11. Assistant Treasurers. The Assistant Treasurer of the Corporation, if any, or if there be more than one, the Assistant Treasurers in the order of their seniority or in any other order determined by the Board of Directors, shall in the absence or disability of the Treasurer perform the duties and exercise the powers of the Treasurer and shall perform such other duties as the Board of Directors or the Treasurer shall prescribe.
ARTICLE V
Contracts, Checks, Drafts, Bank Accounts, etc.
SECTION 5.01. Execution of Documents. The Board of Directors shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation, and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument to other officers, employees or agents of the Corporation; and, unless so designated or expressly authorized by these By-laws, no officer or agent or employee shall have any power or authority to bind the Corporation by any contract or engagement or to pledge its credit or to render it liable pecuniarily for any purpose or to any amount.
SECTION 5.02. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board of Directors or Treasurer or any other officer of the Corporation to whom power in this respect shall have been given by the Board of Directors shall select.
SECTION 5.03. Proxies in Respect of Shares or Other Securities of Other Corporations. The Board of Directors shall designate the officers of the Corporation who shall have authority from time to time to appoint an agent or agents of the Corporation to exercise in the name and on behalf of the Corporation the powers and rights which the Corporation may have as the holder of shares or other securities in any other corporation, and to vote or consent in respect of such shares or securities; such designated officers may instruct the person or persons so appointed as to the manner of exercising such powers and rights; and such designated officers may execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal, or otherwise, such written proxies, powers of attorney or other instruments as they may deem necessary or proper in order that the Corporation may exercise its said powers and rights.
ARTICLE VI
Shares and Their Transfer; Fixing Record Date
SECTION 6.01. Share Certificates. Every owner of shares of the Corporation shall be entitled to have a certificate certifying the number and class of shares owned by him in the Corporation, which shall otherwise be in such form as shall be prescribed by the Board of Directors. Certificates of each class shall be issued in consecutive order and shall be numbered in the order of their issue, and shall be signed by, or in the name of the Corporation by the Chairman of the Board of Directors, the President or a Vice President and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Corporation.
SECTION 6.02. Record. A record (herein called the “stock record”) in one or more counterparts shall be kept of the name of the person, firm or Corporation owning the shares represented by each certificate for shares of the Corporation issued, the number of shares represented by each such certificate, the date thereof and, in the case of cancellation, the date of cancellation. Except as otherwise expressly required by law, the person in whose name shares of stock stand on the stock record of the Corporation shall be deemed the owner thereof for all purposes as regards the Corporation.
SECTION 6.03. Registration of Shares. Registration of transfers of shares of the Corporation shall be made only on the books of the Corporation upon request of the registered holder thereof, or of his attorney thereunto authorized by power of attorney duly executed and filed with the Secretary of the Corporation, and upon the surrender of the certificate or certificates for such shares properly endorsed or accompanied by a stock power duly executed.
SECTION 6.04. Addresses of Shareholders. Each shareholder shall designate to the Secretary of the Corporation an address at which notices of meetings and all other corporate notices may be served or mailed to him, and, if any shareholder shall fail to designate such address, corporate notices may be served upon him by mail directed to him at his post office address, if any, as the same appears on the stock record books of the Corporation or at his last known post office address.
SECTION 6.05. Lost, Destroyed and Mutilated Certificates. The Board of Directors or a committee designated thereby with power so to act may, in its discretion, cause to be issued a new certificate or share certificate of the Corporation in place of any certificate issued by it and reported to have been lost, destroyed or mutilated, upon the surrender of the mutilated certificates or, in the case of loss or destruction of the certificate, upon satisfactory proof of such loss or destruction, and the Board of Directors or such committee may, in its discretion, require the owner of the lost or destroyed certificate or his legal representative to give the Corporation a bond in such sum and with such surety or sureties as it may direct to indemnify the Corporation against any claim that may be made against it on account of the alleged loss or destruction of any such certificate.
SECTION 6.06. Regulations. The Board of Directors may make such rules and regulations as it may deem expedient, not inconsistent with these By-laws, concerning the issue, transfer and registration of share certificates of the Corporation.
SECTION 6.07. Fixing Date for Determination of Shareholders of Record. In order that the Corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of shares or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than 60 nor less than 10 days before the date of such meeting, nor more than 60 days prior to any other action. A determination of shareholders entitled to notice of or to vote at a meeting of the shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
ARTICLE VII
Fiscal Year
The fiscal year of the Corporation shall end on the 31st day of December in each year unless changed by resolution of the Board of Directors.
ARTICLE VIII
Waiver of Notice
Whenever any notice whatever is required to be given by these By-laws or the Certificate of Incorporation of the Corporation or the laws of the State of New Jersey, the person entitled thereto may, in person or by attorney thereunto authorized, in writing or by telegraph, cable or other form of recorded communication, waive such notice, whether before or after the meeting or other matter in respect of which such notice is given, and in such event such notice need not be given to such person and such waiver shall be deemed equivalent to such notice.
ARTICLE IX
Amendments
The Board of Directors and the shareholders shall have the power to adopt, amend and repeal any Bylaw. Any Bylaw (including these By-laws) adopted by the shareholders may be amended or repealed by the Board of Directors, unless the resolution adopting the Bylaw by the shareholders expressly reserved to the shareholders the right to amend or repeal it.
Exhibit 99.2
The Cutrale-Safra Groups Complete Acquisition of Chiquita
Committed To Long-Term Enhancement of Chiquita as Strong Global Agribusiness Leader
Vision for Chiquita Outlined: Commitment to Excellence in Customer Service, Organizational Simplicity and Efficiency in Business
CHARLOTTE, N.C., - (January 6, 2015) – Chiquita Brands International, Inc. (“Chiquita”) and the Cutrale and Safra Groups (“Cutrale-Safra”) today announced the completion of the transactions under which Cutrale-Safra has acquired Chiquita via its affiliate, Cavendish Acquisition Corporation.
After the previously announced completion of the tender offer pursuant to which Cutrale-Safra, through Cavendish Acquisition Corporation and together with the exercise of a top-up option, acquired more than 90% of the outstanding shares of common stock of Chiquita, Cutrale-Safra consummated a “short-form” merger under the New Jersey Business Corporation Act in which all remaining shares of Chiquita common stock not tendered into the offer were cancelled and converted into the right to receive $14.50 per share to the seller in cash, without interest and subject to any required withholding of taxes. Shares of Chiquita common stock will no longer be listed on the New York Stock Exchange.
“We look forward to working with Chiquita to build the premier and most sustainable fresh produce platform in the industry,” said Cutrale-Safra. “The expertise of the Cutrale Group, one of the world’s most highly regarded agribusiness and juice companies, and the extensive global relationships of the Safra Group will be important strategic differentiators for Chiquita. We are confident this combination will benefit customers and consumers of the Chiquita and Fresh Express brands around the world. We will focus with Chiquita on strengthening its businesses and brands, including Chiquita bananas and Fresh Express salads and snacks, and enable further success in this very competitive environment through investments in the brands and operations. We bring to Chiquita a history of successful investment in the agribusiness sector; a commitment to providing customers the highest quality products and best service levels, and a focus on delivering healthy products to consumers around the world.”
Chiquita will continue its ongoing strategic objective of refocusing the business on its core brands and strengths, while maintaining excellence in its customer relationships. As a result of this refocus and with Chiquita no longer a publicly owned company, Brian Kocher, Chief Operating Officer of Chiquita, has assumed the position of interim Chief Executive Officer, succeeding Ed Lonergan. Rick Frier, Executive Vice President and Chief Financial Officer, will as well be exiting. Cutrale-Safra express their appreciation to Mr. Lonergan and Mr. Frier for their leadership of Chiquita and wish them well in their next endeavors. Mr. Lonergan stated, “We are proud of the success of Chiquita’s ‘return to the core’ strategic plan, thank Cutrale-Safra for their support in this transition, and wish them long term success with this great company and team.”
About Cutrale Group
The Cutrale Group refers to the global agribusiness operations that collectively make up one of the world’s most highly regarded agribusiness and juice companies in the world, and one of the world’s leading orange juice processors for frozen concentrated orange juice and not-from-concentrate fresh juices. The global business operations include oranges, apples, peaches, lemons and soybeans. The operations have a vast network and knowhow of farms, processing, technology, sourcing, distribution, logistics, marketing and trading of agriculture products.
About Safra Group
The Safra Group, with total assets under management of over $200 billion and aggregate stockholders equity of over $15.3 billion, is controlled by Joseph Safra. The Group consists of privately owned banks under the Safra name and investment holdings in asset based business sectors such as real estate and agribusiness. The Group’s banking interests, which have over 150 locations globally, are: J. Safra Sarasin, headquartered in Basel, Switzerland; Banco Safra, headquartered in Sao Paulo, Brazil; and Safra National Bank of New York headquartered in New York City, all independent from one another from a consolidated supervision standpoint. The Group’s real estate holdings consist of more than 100 premier commercial, residential, retail and farmland properties worldwide, such as New York City’s 660 Madison Avenue office complex and London’s iconic Gherkin Building. Its investments in other sectors include, among others, agribusiness holdings in Brazil and Chiquita Brands International, Inc. With deep relationships in markets worldwide, the Safra Group is able to greatly enhance the value of businesses which are part of the Group. There are more than 27,000 employees associated with The Safra Group.
Media Contacts:
For Chiquita and Cutrale Group:
Jeremy Fielding / Stef Goodsell
Kekst and Company
(212) 521-4858/4878
jeremy-fielding@kekst.com/stef-goodsell@kekst.com
For Safra Group:
Robert Siegfried
Kekst and Company
(212) 521-4832
robert-siegfried@kekst.com