New Jersey
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1-550
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04-1923360
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||
(State or Other Jurisdiction
of Incorporation)
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(Commission File Number)
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(IRS Employer
Identification No.)
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550 South Caldwell Street, Charlotte, North Carolina 28202
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(Address of Principal Executive Offices)
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x
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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¨
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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¨
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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¨
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01
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Entry Into a Material Definitive Agreement.
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•
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the adoption of the Transaction Agreement by the affirmative vote of a majority of the votes cast by Chiquita shareholders at a shareholder meeting called for such purpose;
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•
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the approval of the Scheme by a majority in number of the Fyffes shareholders representing 75% or more in value of the Fyffes ordinary shares held by such holders, present and voting either in person or by proxy, at a meeting of Fyffes shareholders convened by order of the Irish High Court pursuant to Section 201 of the Irish Companies Act of 1963, and the approval by Fyffes shareholders of certain other resolutions at an extraordinary general meeting of shareholders convened for such purpose, and the sanction by the Irish High Court of the Scheme;
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•
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the approval by the New York Stock Exchange for listing (subject to satisfaction of any conditions to which such approval is expressed to be subject) of the ChiquitaFyffes shares to be issued in the Combination and the Merger;
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•
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all applicable waiting periods under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 having expired or having been terminated, in each case in connection with the Scheme and the Merger;
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•
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all consents, clearances, approvals, permissions, permits, nonactions, orders and waivers to be obtained from, and all registrations, applications, notices and filings to be made with or provided to, any relevant authority or other third party referred to in conditions 3(d) to 3(h) of the Conditions Appendix and all other required merger and regulatory clearances in connection with the Combination and the Merger, under relevant antitrust, competition or foreign investment laws having been obtained and remaining in full force and effect and applicable waiting periods having expired, lapsed or terminated (as appropriate) (the “Merger/Regulatory Clearances”). The precise terms of the Merger/Regulatory Clearances are contained in conditions 3(d) to 3(h) of the Conditions Appendix. The parties have undertaken to take all steps necessary to resolve any objections, if any, that a relevant authority may assert under any antitrust law with respect to the Combination or the Merger, except action that would reasonably be expected to result in a material adverse effect on (i) ChiquitaFyffes and its subsidiaries, taken as a whole (following consummation of the Combination and the Merger) or (ii) the benefits anticipated to be realised from the transactions contemplated by the Transaction Agreement (any such action, a “Burdensome Condition”);
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•
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no injunction, restraint or prohibition by any court of competent jurisdiction which prohibits consummation of the Combination or the Merger or is reasonably likely, individually or in the aggregate, to constitute (if not removed), a Burdensome Condition having been entered and which is continuing to be in effect;
|
•
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the Registration Statement on Form S-4 to be filed by ChiquitaFyffes in connection with the Transactions having become effective under the Securities Act of 1933 and not being the subject of any stop order or proceedings seeking any stop order; and
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||
•
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the Transaction Agreement not having been terminated in accordance with its terms.
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•
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the accuracy of the other party’s representations and warranties in the Transaction Agreement, subject to specified materiality standards; and
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•
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the performance by the other party of its obligations under the Transaction Agreement in all material respects.
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Item 5.02
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Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
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EXHIBIT
NO.
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|
DESCRIPTION
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2.1
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Transaction Agreement, dated as of March 10, 2014, by and among Chiquita, Fyffes, ChiquitaFyffes, US Holdco and Merger Sub.
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2.2
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Part A of Appendix III to Rule 2.5 Announcement, dated March 10, 2014 (Conditions of the Scheme Transaction and the Scheme).
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2.3
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Expenses Reimbursement Agreement, dated as of March 10, 2014, by and between Chiquita and Fyffes.
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2.4
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Deed of Irrevocable Undertaking by the Balkan Entities, in favor of Chiquita and ChiquitaFyffes, dated March 9, 2004.
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10.1
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Consent and Amendment No. 1 to Credit Agreement, dated as of March 10, 2014, to the Credit Agreement dated February 5, 2013, by and among Chiquita, certain of its subsidiaries as borrowers, Wells Fargo Bank, National Association, as administrative agent, and the other lenders party thereto.
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CHIQUITA BRANDS INTERNATIONAL, INC.
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||
By:
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/s/ James E. Thompson
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James E. Thompson
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||
Executive Vice President,
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||
General Counsel and Secretary
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TRANSACTION AGREEMENT
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1.
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INTERPRETATION
|
2
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1.1
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Definitions
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2
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1.2
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Construction
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21
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1.3
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Captions
|
22
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|
1.4
|
Time
|
22
|
|
2.
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RULE 2.5 ANNOUNCEMENT AND THE SCHEME DOCUMENT
|
23
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2.1
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Rule 2.5 Announcement
|
23
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2.2
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Scheme
|
23
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2.3
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Change in Shares
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24
|
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3.
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IMPLEMENTATION OF THE SCHEME; CHIQUITA SHAREHOLDERS MEETING
|
24
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3.1
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Responsibilities of Fyffes in Respect of the Scheme
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24
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3.2
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Responsibilities of Chiquita and IrHoldco in Respect of the Scheme
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28
|
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3.3
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Mutual Responsibilities of the Parties
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29
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3.4
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Dealings with the Panel and compliance with the Takeover Rules
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30
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3.5
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No Scheme Amendment by Fyffes
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32
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3.6
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Switching to a Takeover Offer
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32
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3.7
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Preparation of Joint Proxy Statement and Form S-4; Chiquita Shareholders Meeting
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35
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|
4.
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EQUITY AWARDS
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37
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|
4.1
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Fyffes Equity Award Holder Proposal
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37
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4.2
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Treatment of Fyffes Options
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38
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4.3
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Treatment of Fyffes Short Term Incentive Plan
|
40
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4.4
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Other Actions in Connection with the Assumption of Fyffes Options and Fyffes Share Awards
|
40
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|
4.5
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Chiquita Share Awards
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41
|
|
4.6
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Assumption of Chiquita Share Plans
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43
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4.7
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Corporate Actions
|
44
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4.8
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Amendment of Articles
|
44
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4.9
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Fractional Entitlements
|
44
|
|
5.
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FYFFES AND CHIQUITA CONDUCT
|
45
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5.1
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Conduct of Business by Fyffes
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45
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5.2
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Conduct of Business by Chiquita
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52
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5.3
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Non-Solicitation Applicable to Fyffes
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60
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5.4
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Non-Solicitation Applicable to Chiquita
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66
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6.
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REPRESENTATIONS AND WARRANTIES
|
70
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6.1
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Fyffes Representations and Warranties
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70
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6.2
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Chiquita Representations and Warranties
|
92
|
|
7.
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ADDITIONAL AGREEMENTS
|
114
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7.1
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Investigation
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114
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7.2
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Consents and Regulatory Approvals
|
115
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7.3
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Directors’ and Officers’ Indemnification and Insurance
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120
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|
7.4
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Employment and Benefit Matters
|
124
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|
7.5
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Stock Exchange Listing
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128
|
|
7.6
|
Corporate Governance Matters
|
128
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7.7
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Rule 16b-3 Actions
|
129
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|
7.8
|
Financing Cooperation
|
130
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|
7.9
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Dividends
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131
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|
7.10
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Creation of Distributable Reserves
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131
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|
7.11
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Certain IrHoldco Shareholder Resolutions
|
132
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|
7.12
|
IrHoldco’s Obligations
|
132
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|
7.13
|
Transaction Litigation
|
133
|
|
7.14
|
Steps to be Compliant with the Sarbanes-Oxley Act
|
133
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7.15
|
Support Letter
|
133
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|
8.
|
COMPLETION OF Combination AND MERGER
|
133
|
|
8.1
|
Completion
|
133
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|
8.2
|
Merger
|
138
|
|
9.
|
TERMINATION
|
144
|
|
9.1
|
Termination
|
144
|
|
10.
|
GENERAL
|
146
|
|
10.1
|
Announcements
|
146
|
|
10.2
|
Notices
|
147
|
|
10.3
|
Assignment
|
149
|
|
10.4
|
Counterparts
|
149
|
|
10.5
|
Amendment
|
149
|
|
10.6
|
Entire Agreement
|
149
|
|
10.7
|
Inadequacy of Damages
|
149
|
|
10.8
|
Remedies and Waivers
|
150
|
|
10.9
|
Severability
|
150
|
|
10.10
|
No Partnership and No Agency
|
150
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|
10.11
|
Further Assurance
|
150
|
|
10.12
|
Costs and Expenses
|
151
|
|
10.13
|
Governing Law and Jurisdiction
|
151
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|
10.14
|
Third Party Beneficiaries
|
153
|
|
10.15
|
Non survival of Representations and Warranties
|
153
|
Exhibit 4.2(a)(1)
|
Form of Consent
|
Exhibit 4.2(a)(2)
|
Form of Rule Change
|
Exhibit 7.6(c)
|
Senior Executives of Combined Company
|
Exhibit 8.1(c)(iv)
|
Form of IrHoldco Memorandum and Articles of Association
|
1.
|
Chiquita has agreed to combine with Fyffes on the terms set out in the Rule 2.5 Announcement (as defined below).
|
2.
|
This Agreement (this “Agreement”) sets out certain matters relating to the conduct of the Combination (as defined below) and the Merger (as defined below) that have been agreed by the Parties.
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3.
|
The Parties intend that the Combination will be implemented by way of the Scheme, although this may, subject to the consent of the Panel (where required) be switched to the Takeover Offer in accordance with the terms set out in this Agreement.
|
4.
|
The Combination is intended to qualify as a “reorganization” within the meaning of Section 368(a)(1) of the Code (as defined below), with each of IrHoldco and Fyffes as a party to such reorganization.
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1.
|
INTERPRETATION
|
|
1.1
|
Definitions
|
|
1.2
|
Construction
|
|
(a)
|
In this Agreement, words such as “hereunder”, “hereto”, “hereof” and “herein” and other words commencing with “here” shall, unless the context clearly indicates to the contrary, refer to the whole of this Agreement and not to any particular section or clause thereof.
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|
(b)
|
In this Agreement, save as otherwise provided herein, any reference herein to a section, clause, schedule or paragraph shall be a reference to a section, sub-section, clause, sub-clause, paragraph or sub-paragraph (as the case may be) of this Agreement.
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(c)
|
In this Agreement, any reference to any provision of any legislation shall include any amendment, modification, re-enactment or extension thereof and shall also include any subordinate legislation made from time to time under such provision, and any reference to any provision of any legislation, unless the context clearly indicates to the contrary, shall be a reference to legislation of Ireland.
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(d)
|
In this Agreement, the masculine gender shall include the feminine and neuter and the singular number shall include the plural and vice versa.
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(e)
|
In this Agreement, any reference to an Irish legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than Ireland, be deemed to include a reference to what most nearly approximates in that jurisdiction to the Irish legal term.
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|
(f)
|
In this Agreement, any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
|
|
(g)
|
In this Agreement, any agreement or instrument defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement or instrument as from time to time amended, modified or supplemented, including by waiver or consent, and all attachments thereto and instruments incorporated therein.
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|
1.3
|
Captions
|
|
1.4
|
Time
|
2.
|
RULE 2.5 ANNOUNCEMENT AND THE SCHEME DOCUMENT
|
|
2.1
|
Rule 2.5 Announcement
|
|
(a)
|
Each Party confirms that its respective board of directors (or a duly authorised committee thereof) has approved the contents and release of the Rule 2.5 Announcement.
|
|
(b)
|
Forthwith upon the execution of this Agreement, Fyffes shall, in accordance with, and for the purposes of, the Takeover Rules, procure the release of the Rule 2.5 Announcement to a Regulatory Information Service by no later than 11:59 a.m., New York City time, on March 10, 2014, or such later time as may be agreed between the Parties in writing.
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|
(c)
|
The obligations of Fyffes and Chiquita under this Agreement, other than the obligations under Clause 2.1(b), shall be conditional on the release of the Rule 2.5 Announcement to a Regulatory Information Service on March 10, 2014.
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|
(d)
|
Fyffes confirms that, as of the date hereof, the Fyffes Board considers that the terms of the Scheme as contemplated by this Agreement are fair and reasonable and that the Fyffes Board has resolved to recommend to the Fyffes Shareholders that they vote in favour of the Resolutions. The recommendation of the Fyffes Board that the Fyffes Shareholders vote in favour of the Resolutions, and the related recommendation of the financial advisers to the Fyffes Board, are set out in the Rule 2.5 Announcement and, subject to Clause 5.3, shall be incorporated in the Scheme Document and any other document sent to Fyffes Shareholders in connection with the Combination to the extent required by the Takeover Rules.
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|
(e)
|
The Conditions are hereby incorporated in and shall constitute a part of this Agreement.
|
|
2.2
|
Scheme
|
|
(a)
|
Fyffes agrees that it will put the Scheme to the Fyffes Shareholders in the manner set out in Clause 3 and, subject to the satisfaction or, in the sole discretion of the applicable Party, waiver (where applicable) of the Conditions (with the exception of Conditions 2(c) and 2(d)), will, in the manner set out in Clause 3, petition the High Court to sanction the Scheme so as to facilitate the implementation of the Combination.
|
|
(b)
|
Each of Chiquita and IrHoldco agrees that it will participate in the Scheme and agrees to be bound by its terms, as proposed by Fyffes to the Fyffes Shareholders, and that it shall, subject to the satisfaction or, in the sole discretion of the applicable Party, waiver (where applicable) of the Conditions (with the exceptions of Conditions 2(c) and 2(d)), effect the Combination through the Scheme on the terms set out in this Agreement and the Scheme.
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|
(c)
|
Each of the Parties agrees that it will fully and promptly perform all of the obligations required of it in respect of the Combination on the terms set out in this Agreement and/or the Scheme, and each will, subject to the terms and conditions of this Agreement, use all of its reasonable endeavours to take such other steps as are within its power and are reasonably required of it for the proper implementation of the Scheme, including those required of it pursuant to this Agreement in connection with Completion.
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|
2.3
|
Change in Shares
|
3.
|
IMPLEMENTATION OF THE SCHEME; CHIQUITA SHAREHOLDERS MEETING
|
|
3.1
|
Responsibilities of Fyffes in Respect of the Scheme
|
|
(a)
|
be responsible for the preparation of the Scheme Document and all other documentation necessary to effect the Scheme and to convene the EGM and Court Meeting;
|
|
(b)
|
for the purpose of implementing the Scheme, instruct a barrister (of senior counsel standing) and provide Chiquita and its advisers with the opportunity to attend any meetings with such barrister to discuss substantive matters pertaining to the Scheme and any issues arising in connection with it (except to the extent the barrister is to advise on matters relating to the fiduciary duties of the directors of Fyffes or their responsibilities under the Takeover Rules);
|
|
(c)
|
as promptly as reasonably practicable after the definitive Joint Proxy Statement is filed with the SEC, or, if the preliminary Joint Proxy Statement is reviewed and commented upon by the SEC, after the filing of the first amendment to the preliminary Joint Proxy Statement with the SEC, Fyffes shall cause to be filed with the Panel the Joint Proxy Statement (in definitive or preliminary form, as the case may be);
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|
(d)
|
keep Chiquita reasonably informed and consult with Chiquita as to the performance of the obligations and responsibilities required of Fyffes pursuant to the Agreement and/or the Scheme and as to any material developments relevant to the proper implementation of the Scheme including the satisfaction of the Conditions;
|
|
(e)
|
as promptly as reasonably practicable, notify Chiquita of any other matter of which it becomes aware which would reasonably be expected to materially delay or prevent filing of the Scheme Document with the Panel or implementation of the Scheme or the Combination as the case may be;
|
|
(f)
|
as promptly as reasonably practicable, notify Chiquita upon the receipt of any comments from the Panel on, or any request from the Panel for amendments or supplements to, the Scheme Document and the related forms of proxy, insofar as lies within its powers of procurement, to be so filed or furnished;
|
|
(g)
|
prior to filing or despatch of any amendment or supplement to the Scheme Document requested by the Panel, or responding in writing to any comments of the Panel with respect thereto, Fyffes shall:
|
|
(i)
|
as promptly as reasonably practicable provide Chiquita with a reasonable opportunity to review and comment on such document or response (provided that Chiquita shall use reasonable endeavours not to delay Fyffes from responding in a timely manner); and
|
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(ii)
|
as promptly as reasonably practicable discuss with Chiquita and include in such document or response all comments reasonably and
|
|
(h)
|
provide Chiquita with drafts of any and all pleadings, affidavits, petitions and other filings prepared by Fyffes for submission to the High Court in connection with the Scheme prior to their filing, and afford Chiquita reasonable opportunities to review and make comments on all such documents and accommodate such comments reasonably proposed by Chiquita;
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(i)
|
subject to the Form S-4 becoming effective, as promptly as reasonably practicable make all necessary applications to the High Court in connection with the implementation of the Scheme (including issuing appropriate proceedings requesting the High Court to order that the Court Meeting be convened as promptly as reasonably practicable following the publication of the Rule 2.5 Announcement), and use all reasonable endeavours so as to ensure that the hearing of such proceedings occurs as promptly as reasonably practicable in order to facilitate the despatch of the Scheme Document and seek such directions of the High Court as it considers necessary or desirable in connection with such Court Meeting;
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(j)
|
procure the publication of the requisite advertisements and despatch of the Scheme Document (in a form acceptable to the Panel) and the forms of proxy for the use at the Court Meeting and the EGM (the form of which shall be agreed between the Parties) (a) to Fyffes Shareholders on the register of members of Fyffes on the record date as agreed with the High Court, as promptly as reasonably practicable after the approval of the High Court to despatch the documents being obtained, and (b) to the holders of the Fyffes Options or Fyffes Share Awards on such date, for information only, as promptly as reasonably practicable after the approval of the High Court to despatch the documents being obtained, and thereafter shall publish and/or post such other documents and information (the form of which shall be agreed between the Parties) as the High Court and/or the Panel may approve or direct from time to time in connection with the implementation of the Scheme in accordance with applicable Law as promptly as reasonably practicable after the approval of the High Court and/or the Panel to publish or post such documents being obtained;
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(k)
|
unless the Fyffes Board has effected a Fyffes Change of Recommendation pursuant to Clause 5.3, and subject to the obligations of the Board under the Takeover Rules, procure that the Scheme Document shall include the Scheme Recommendation;
|
|
(l)
|
include in the Scheme Document, a notice convening the EGM to be held immediately following the Court Meeting to consider and, if thought fit, approve the EGM Resolutions;
|
|
(m)
|
prior to the Court Meeting, keep Chiquita reasonably informed in the two (2) weeks prior to the Court Meeting of the number of proxy votes received in respect of resolutions to be proposed at the Court Meeting and/or the EGM, and in any event shall provide such number promptly upon the request of Chiquita or its Representatives;
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(n)
|
notwithstanding any Fyffes Change of Recommendation, unless this Agreement has been terminated pursuant to Clause 9, (a) hold the Court Meeting and the EGM on the date set out in the Scheme Document, or such later date as may be agreed in writing between the Parties (provided that the Parties agree that such date shall be on or around the same date of the Chiquita Shareholder Meeting), and (b) in such a manner as shall be approved, if necessary, by the High Court and/or the Panel and propose the Resolutions without any amendments, unless such amendments have been agreed to in writing with Chiquita, such agreement not to be unreasonably withheld, conditioned or delayed;
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|
(o)
|
afford all such cooperation and assistance as may reasonably be requested of it by Chiquita in respect of the preparation and verification of any document or in connection with any Clearance or confirmation required for the implementation of the Scheme including the provision to Chiquita of such information and confirmation relating to it, its Subsidiaries and any of its or their respective directors or employees as Chiquita may reasonably request (including for the purposes of preparing the Joint Proxy Statement or Form S-4) and to do so in a timely manner and assume responsibility for, but only for, the information provided by or relating to it and its Subsidiaries and Affiliates contained in the Scheme Document or any other document (including the Joint Proxy Statement) sent to Fyffes Shareholders or filed with the High Court or in any announcement;
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|
(p)
|
review and provide comments (if any) in a timely manner on all documentation submitted to it;
|
|
(q)
|
following the Court Meeting and EGM, assuming the Resolutions are duly passed (including by the requisite majorities required under Section 201 of the Act in the case of the Court Meeting) and all other Conditions are satisfied or, in the sole discretion of the applicable Party, waived (where applicable (with the exception of Conditions 2(c) and 2(d))), take all necessary steps on the part of Fyffes to prepare and issue, serve and lodge
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(r)
|
give such undertakings as are required by the High Court in connection with the Scheme as Fyffes determines (acting in good faith) to be reasonable and otherwise, subject to Clause 7.2(h), take all such steps, insofar as lies within its power, as are reasonably necessary or desirable in order to implement the Scheme.
|
|
3.2
|
Responsibilities of Chiquita and IrHoldco in Respect of the Scheme
|
|
(a)
|
instruct counsel to appear on its behalf at the Court Hearing and undertake to the High Court to be bound by the terms of the Scheme (including the issuance of the Share Consideration pursuant thereto) insofar as it relates to Chiquita or IrHoldco;
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|
(b)
|
if, and to the extent that, it or any person Acting in Concert with it owns or is interested in Fyffes Shares, exercise all rights, and, insofar as lies within its powers, procure that each such person shall exercise all rights, in respect of such Fyffes Shares so as to implement, and otherwise support the implementation of, the Scheme, including by voting (and, in respect of interests in Fyffes held via contracts for difference or other derivative instruments, insofar as lies within its powers, procuring that instructions are given to the holder of the underlying Fyffes Shares to vote) in favour of the Resolutions or, if required by Law, the High Court, the Takeover Rules or other rules, refraining from voting, at any Court Meeting and/or EGM as the case may be;
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|
(c)
|
procure that the other members of the Chiquita Group and, insofar as lies within its power or procurement, their Representatives, take all such steps as are necessary or desirable in order to implement the Scheme;
|
|
(d)
|
keep Fyffes reasonably informed and consult with Fyffes as to the performance of the obligations and responsibilities required of Chiquita and IrHoldco pursuant to this Agreement and/or the Scheme and as to any material developments relevant to the proper implementation of the Scheme;
|
|
(e)
|
afford all such cooperation and assistance as may reasonably be requested of it by Fyffes in respect of the preparation and verification of any
|
|
(f)
|
review and provide comments (if any) in a timely manner on all documentation submitted to it; and
|
|
(g)
|
as promptly as reasonably practicable, notify Fyffes of any other matter of which it becomes aware which would reasonably be expected to materially delay or prevent filing of the Scheme Document or implementation of the Scheme or the Combination as the case may be.
|
|
3.3
|
Mutual Responsibilities of the Parties
|
|
(a)
|
As promptly as reasonably practicable after the definitive Joint Proxy Statement is filed with the SEC, or, if the preliminary Joint Proxy Statement is reviewed and commented upon by the SEC, after the filing of the first amendment to the preliminary Joint Proxy Statement with the SEC, Fyffes and Chiquita shall cause to be filed with the Panel the Joint Proxy Statement (in definitive or preliminary form, as the case may be);
|
|
(b)
|
If any of the Parties becomes aware of any information that, pursuant to the Takeover Rules, the Act, the Securities Act or the Exchange Act, should be disclosed in an amendment or supplement to the Scheme Document, the Joint Proxy Statement or the Form S-4, then the Party becoming so aware shall promptly inform the other Party thereof and the Parties shall cooperate with each other in submitting or filing such amendment or supplement with the Panel, and, if required, the SEC and/or the High Court and, if required, in mailing such amendment or supplement to the Fyffes Shareholders and, for information only, if required, to the holders of the Fyffes Options or Fyffes Share Awards;
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|
(c)
|
Fyffes, Chiquita and IrHoldco each shall take, or cause to be taken, such other steps as are reasonably required of it for the proper implementation of the Scheme, including those required of it pursuant to Clauses 8.1 and 8.2 in connection with Completion; and
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|
(d)
|
Each Party shall, as promptly as reasonably practicable, notify the other of any matter of which it becomes aware which would reasonably be expected to materially delay or prevent filing of the Scheme Document or implementation of the Scheme, the Combination or the Merger as the case may be.
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|
3.4
|
Dealings with the Panel and compliance with the Takeover Rules
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|
(a)
|
Each of the Parties will promptly provide such assistance and information as may reasonably be requested by the other Party for the purposes of, or in connection with, any correspondence or discussions with the Panel in connection with the Combination and/or the Scheme or as required to comply with the Takeover Rules.
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|
(b)
|
Save in each case where not reasonably practicable owing to time restraints or where prohibited by the Panel, each of the Parties will give the other reasonable prior notice of any proposed meeting or material substantive discussion or correspondence between it or its Representatives with the Panel, or amendment to be proposed to the Scheme in connection therewith and afford the other reasonable opportunities to review and make comments and suggestions with respect to the same and accommodate such comments and suggestions to the extent that such Party, acting reasonably, considers these to be appropriate and keep the other reasonably informed of all such meetings, discussions or correspondence that it or its Representative(s) have with the Panel and not participate in any meeting or discussion with the Panel concerning this Agreement or the transactions contemplated by this Agreement unless it consults with the other Party in advance, and, unless prohibited by the Panel, gives such other Party the opportunity to attend and provide copies of all written submissions it makes to the Panel and copies (or, where verbal, a verbal or written summary of the substance) of the Panel responses thereto provided always that any correspondence or other information required to be provided under this Clause 3.4(b) may be redacted:
|
|
(i)
|
to remove references concerning the valuation of the businesses of Chiquita or Fyffes;
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|
(ii)
|
as necessary to comply with contractual obligations; and
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|
(iii)
|
as necessary to address reasonable privilege or confidentiality concerns.
|
|
(c)
|
Fyffes undertakes, if so reasonably requested by Chiquita, to issue as promptly as reasonably practicable its written consent to Chiquita and to the Panel in respect of any application made by Chiquita to the Panel:
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|
(i)
|
seeking confirmation that there is no requirement under the Takeover Rules to disclose Chiquita’s financing arrangements for the Combination and related transactions (“Chiquita Financing Information”) in the Scheme Document, any supplemental document or other document sent to Fyffes Shareholders, the holders of the Fyffes Options or Fyffes Share Awards pursuant to the Takeover Rules or, alternatively, seeking a derogation from such requirement; and
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|
(ii)
|
to redact any commercially sensitive or confidential information specific to the Chiquita Financing Information from any documents that Chiquita may be required to display pursuant to Rule 26 (b)(xi) of the Takeover Rules.
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|
(d)
|
Chiquita undertakes, if so requested by Fyffes, to issue as promptly as reasonably practicable its written consent to Fyffes and to the Panel in respect of any application made by Fyffes to the Panel to permit entering into and effecting (i) the retention arrangements contemplated by Clause 5.1(b)(iii) of the Fyffes Disclosure Schedule and/or the employment arrangements contemplated by Clause 7.6(e) of the Fyffes Disclosure Schedule (subject to the provisions of Clause 7.6(e) of the Fyffes Disclosure Schedule), (ii) a transaction of the type described in Clause 5.3(g) of this Agreement (subject to compliance with the terms of Clause 5.3), (iii) the payment in cash of any awards vesting under the Fyffes Short Term Incentive Plan as contemplated by Clause 7.4(i)(iii) of this Agreement, (iv) the amendment of the Fyffes Option Scheme as contemplated by Clause 4.2(a) of this Agreement and (v) the purchase of Fyffes Shares for the grant of the 2014 appropriations under the Fyffes Profit Share Scheme as contemplated by Clause 7.4(i)(ii) of this Agreement.
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(e)
|
Notwithstanding the foregoing provisions of this Clause 3.4, neither Fyffes nor Chiquita shall be required to take any action pursuant to such provisions (i) if such action is prohibited by the Panel, (ii) if Fyffes has received a Fyffes Alternative Proposal or an inquiry or proposal from a person who is considering making a Fyffes Alternative Proposal or (iii) if Fyffes is considering making a Fyffes Change of Recommendation, but, in the case of clauses (ii) or (iii), only as it relates to the Fyffes Alternative Proposal or the Fyffes Change of Recommendation.
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|
(f)
|
Nothing in this Agreement shall in any way limit the Parties’ obligations under the Takeover Rules.
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|
3.5
|
No Scheme Amendment by Fyffes
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|
(a)
|
amend the Scheme;
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|
(b)
|
adjourn or postpone the Court Meeting or the EGM (provided, however, that Fyffes may, without the consent of Chiquita, adjourn or postpone the Court Meeting or EGM (i) in the case of adjournment, if requested by resolution in general meeting of Fyffes Shareholders to do so, (ii) to the extent reasonably necessary to ensure that any required supplement or amendment to the Joint Proxy Statement or Form S-4 is provided to the Fyffes Shareholders or to permit dissemination of information which is material to shareholders voting at the Court Meeting or the EGM, but only for so long as the Fyffes Board determines in good faith, after having consulted with outside counsel, that such action is reasonably necessary or advisable to give the Fyffes Shareholders sufficient time to evaluate any such disclosure or information so provided or disseminated, or (iii) if as of the time the Court Meeting or EGM is scheduled (as set forth in the Joint Proxy Statement), there are insufficient Fyffes Shares represented (either in person or by proxy) (A) to constitute a quorum necessary to conduct the business of the Court Meeting or the EGM, but only until a meeting can be held at which there are a sufficient number of Fyffes Shares represented to constitute a quorum or (B) voting for the approval of the Court Resolutions or the EGM Resolutions, as applicable, but only until a meeting can be held at which there are a sufficient number of votes of holders of Fyffes Shares to approve the Court Meeting Resolutions or the EGM Resolutions, as applicable); or
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|
(c)
|
amend the Resolutions (in each case, in the form set out in the Scheme Document) after despatch of the Scheme Document without the consent of Chiquita (such consent not to be unreasonably withheld, conditioned or delayed).
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|
3.6
|
Switching to a Takeover Offer
|
|
(a)
|
In the event (and only in the event) that there is a Fyffes Superior Offer and provided that there has not been a Fyffes Change of Recommendation, Chiquita may, subject to consulting with Fyffes in advance, elect (and with the Panel’s consent, if required) to implement the Combination by
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|
(b)
|
If Chiquita elects to implement the Combination by way of the Takeover Offer, and subject to Fyffes not being otherwise prohibited, Fyffes undertakes to provide Chiquita as promptly as reasonably practicable with all such information about the Fyffes Group (including directors and their connected persons) as may reasonably be required for inclusion in the Takeover Offer Document and to provide all such other assistance as may reasonably be required by the Takeover Rules in connection with the preparation of the Takeover Offer Document, including reasonable access to, and ensuring the provision of reasonable assistance by, its management and relevant professional advisers.
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|
(c)
|
If Chiquita elects to implement the Combination by way of a Takeover Offer, Chiquita undertakes:
|
|
(i)
|
that the Takeover Offer Document will contain provisions in accordance with the terms and conditions set out in the Rule 2.5 Announcement, the relevant Conditions and such other further terms and conditions as agreed (including any modification thereto) between Chiquita and Fyffes; provided, however, that the terms and conditions of the Takeover Offer shall:
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|
(A)
|
provide for an offer consideration that is at least as favourable to the Fyffes Shareholders as the consideration offered in the Fyffes Superior Proposal; and
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|
(B)
|
be at least as favourable to the Fyffes Shareholders (except for the 80 per cent acceptance condition contemplated by Paragraph 9 of Annex I to the Rule 2.5 Announcement) and the holders of Fyffes Options and Fyffes Share Awards and Fyffes Employees as those which would apply in relation to the Scheme;
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|
(ii)
|
that the governance structure which shall apply to Chiquita or any successor company which is the parent of the combined group after the Takeover Offer will be the same as set out in Clause 7.6;
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|
(iii)
|
to reasonably cooperate and consult with Fyffes (except where Fyffes is otherwise prohibited from doing so) in the preparation of the Takeover Offer Document or any other document or filing which is required for the purposes of implementing the Combination;
|
|
(iv)
|
If Chiquita elects to implement the Combination by way of a Takeover Offer in accordance with this Clause 3.6, Fyffes agrees that, subject to the obligations of the Fyffes Board under the Takeover Rules, and unless the Fyffes Board determines in good faith after consultation with its outside legal counsel and its financial advisors that, to do otherwise, would reasonably be expected to be inconsistent with the fiduciary duties of the directors of Fyffes or the Takeover Rules, with respect to the Takeover Offer to incorporate in the Rule 2.5 Announcement and the Takeover Offer Document a recommendation to the holders of the Fyffes Shares from the Fyffes Board to accept the Takeover Offer, and such recommendation will not be withdrawn, adversely modified or qualified except as contemplated by Clause 5.3.
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|
(d)
|
If Chiquita elects to implement the Combination by way of the Takeover Offer in accordance with Clause 3.6(a) and except where Fyffes is otherwise prohibited from doing so, the Parties mutually agree:
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|
(i)
|
to prepare and, in the case of Chiquita only, file with, or submit to, the SEC all documents, amendments and supplements required to be filed therewith or submitted thereto pursuant to the Securities Act or the Exchange Act in connection with the Takeover Offer, and each Party shall have reasonable opportunities to review and make comments on all such documents, amendments and supplements and, following accommodation of such comments and approval of such documents, amendments and supplements by the other Party, which shall not be unreasonably withheld, conditioned or delayed, file or submit, as the case may be, such documents, amendments and supplements with or to the SEC;
|
|
(ii)
|
to provide the other Party with any comments received from the SEC on any documents filed by it with the SEC promptly after receipt thereof; and
|
|
(iii)
|
to provide the other Party with reasonable prior notice of any proposed oral communication with the SEC and afford the other Party reasonable opportunity to participate therein.
|
|
(e)
|
If the Takeover Offer is consummated, Chiquita shall cause IrHoldco to effect as promptly as reasonably practicable following it becoming entitled under the Act so to do a compulsory acquisition of any Fyffes Shares under section 204 of the Act not acquired in the Takeover Offer for the same consideration per share.
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|
(f)
|
For the avoidance of doubt, except as may be required by the Takeover Rules and without limiting Fyffes’ obligations under Clause 5.3(b) to notify Chiquita of the receipt of any Fyffes Alternative Proposal, nothing in this Clause 3.6 shall require Fyffes to provide Chiquita with any information with respect to, or to otherwise take or fail to take any action in connection with Fyffes’ consideration of or response to, any actual or potential Fyffes Alternative Proposal.
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|
3.7
|
Preparation of Joint Proxy Statement and Form S-4; Chiquita Shareholders Meeting
|
|
(a)
|
As promptly as reasonably practicable following the date hereof, each of the Parties shall cooperate in preparing and, in the case of the Chiquita Parties, shall cause to be filed with the SEC (i) mutually acceptable proxy materials which shall constitute (A) the Scheme Document, which shall also constitute the proxy statement relating to the matters to be submitted to the Fyffes Shareholders at the Court Meeting and the EGM and (B) the proxy statement relating to the matters to be submitted to the Chiquita Shareholders at the Chiquita Shareholders Meeting (such joint proxy statement, and any amendments or supplements thereto, the “Joint Proxy Statement”) and (ii) a registration statement on Form S-4 (or such other form as may be deemed appropriate) (of which the Joint Proxy Statement will form a part) with respect to the issuance of IrHoldco Shares in respect of the Scheme and Merger (the “Form S-4”). Each of the Parties shall use all reasonable endeavours to have the Joint Proxy Statement cleared by the SEC (and any other non-U.S. government agencies, if any, that Chiquita and Fyffes determine in good faith to have jurisdiction over the Form S-4) and the Form S-4 to be declared effective by the SEC (and any such other jurisdiction that Chiquita and Fyffes determine in good faith to be appropriate), to keep the Form S-4 effective as long as is necessary to consummate the Combination and the Merger, and to mail the Joint Proxy Statement to their respective shareholders as promptly as practicable after the Form S-4 is declared effective, to the extent required by applicable Law. Each of the Parties shall, as promptly as practicable after receipt thereof, provide the other with copies of any written comments and advise the other Party of any oral comments with respect to the Joint Proxy Statement or the Form S-4 received from the SEC (or any such other jurisdiction). Each Party shall cooperate and provide the other Party with a reasonable opportunity to review and comment on any amendment or supplement to the Joint Proxy Statement or the Form S-4 prior to filing such with the SEC, and each Party will provide the other Party with a copy of all such filings made with the SEC (or any such other jurisdiction). Each Party shall use all reasonable endeavours to take any action required
|
|
(b)
|
Chiquita shall duly take all lawful action to call, give notice of, convene and hold a meeting of the Chiquita Shareholders (the “Chiquita Shareholders Meeting”) as promptly as practicable following the date upon which the Form S-4 becomes effective for the purpose of obtaining the adoption of this Agreement by the affirmative vote of a majority of the votes cast by Chiquita Shareholders entitled to vote thereon, as required by the NJBCA (the “Chiquita Shareholder Approval”); provided that Chiquita need not hold the Chiquita Shareholders Meeting unless and until Fyffes is also convening and holding the Court Meeting and the EGM. Save as required by Law, Chiquita shall not adjourn or postpone the Chiquita Shareholders Meeting after filing of the Form S-4 without the consent of Fyffes (such consent not to be unreasonably withheld, conditioned or delayed); provided, however, that Chiquita may, without the consent of Fyffes, adjourn or postpone the Chiquita Shareholders Meeting (i) to the extent reasonably necessary to ensure that any required supplement or amendment to the Joint Proxy Statement or Form-S-4 is provided to the Chiquita Shareholders or to permit dissemination of information which is material to shareholders voting at the Chiquita Shareholder Meeting, but only for so long as the Chiquita Board determines in good faith, after having consulted with outside counsel, that
|
|
(c)
|
Chiquita shall, prior to the Chiquita Shareholders Meeting, keep Fyffes reasonably informed in the two (2) weeks prior to the Chiquita Shareholders Meeting of the number of proxy votes received in respect of matters to be acted upon at the Chiquita Shareholders Meeting, and in any event shall provide such number promptly upon the request of Fyffes or its Representatives.
|
|
(d)
|
Each of the Parties shall use all reasonable endeavours to cause the Chiquita Shareholders Meeting, the Court Meeting and the EGM to be held on the same date.
|
4.
|
EQUITY AWARDS
|
|
4.1
|
Fyffes Equity Award Holder Proposal
|
|
(a)
|
Subject to the posting of the Scheme Document in accordance with Clause 3.1, the Parties agree that the Fyffes Equity Award Holder Proposal will be made to Fyffes Equity Award Holders in respect of their holdings of Fyffes Options in accordance with this Clause 4, Rule 15 of the Takeover Rules and the terms of the Fyffes Share Plans.
|
|
(b)
|
The Fyffes Equity Award Holder Proposal shall be issued as a joint letter from Fyffes and Chiquita and the Parties shall agree the final form of the letter to be issued in respect of the Fyffes Equity Award Holder Proposal and all other documentation necessary to effect the Fyffes Equity Award Holder Proposal.
|
|
(c)
|
Save as required by Law, the High Court and/or the Panel, neither Party shall amend the Fyffes Equity Award Holder Proposal after its despatch without the consent of the other Party (such consent not to be unreasonably withheld, conditioned or delayed).
|
|
4.2
|
Treatment of Fyffes Options
|
|
(a)
|
Fyffes shall use commercially reasonable efforts to obtain agreement from those holders of Fyffes Options who are listed in Clause 4.2(a) of the Fyffes Disclosure Schedule (the “Senior Executives”) to (i) subject to Clause 4.2(d) below, and pursuant to the terms of the consent substantially in the form attached hereto as Exhibit 4.2(a)(1) (the “Consent”), prohibit the exercise by Senior Executives during the period beginning on the date hereof and ending on the date that is seven calendar days following the Effective Time (the “Exercise Moratorium”) and (ii) support the rule changes or amendments to the Fyffes Option Scheme substantially in the form attached hereto as Exhibit 4.2(a)(2) (together, the “Rule Change”).
|
|
(b)
|
Subject to Clause 4.2(d) below, upon the Effective Time, each Fyffes Option shall be assumed by IrHoldco and converted into an option to acquire, on the same terms and conditions as were applicable under such Fyffes Option immediately prior to the Effective Time (provided that each such assumed option shall be fully vested as to performance-based conditions but will remain subject to any outstanding time-based conditions to exercise), a number of IrHoldco Shares determined by multiplying the number of Fyffes Shares subject to the Fyffes Option immediately prior to the Effective Time by the Fyffes Equity Exchange Ratio, rounded down to the nearest whole share, at a per share exercise price (in euro) determined by dividing the per share exercise price (in euro) of such Fyffes Option immediately prior to the Effective Time by the Fyffes Equity Exchange Ratio, rounded up to the nearest whole cent (in euro) (each a “Fyffes Rollover Option”); provided, however, that each Fyffes Option held by a United States taxpayer (i) that is an “incentive stock option” (as defined in Code Section 422) shall be adjusted in accordance with the requirements of Code Section 424, and (ii) shall be adjusted in a manner that complies with Code Section 409A.
|
|
(c)
|
Subject to Clauses 4.2(a) above and 4.2(d) below, the Parties shall use
|
|
(d)
|
Notwithstanding any provision of Clauses 4.2(b) or 4.2(c) to the contrary, to the extent the Option Conversion Committee reasonably determines (which it shall do in good faith) that it is necessary or advisable to cancel one or more Fyffes Options (the “Fyffes Cashout Options”) in order to minimize the risk that the transactions contemplated by this Agreement would constitute either (i) a “Change of Control” (as defined under the Indenture, dated as of February 5, 2013, among Chiquita Brands International, Inc., Chiquita Brands L.L.C., Wells Fargo Bank, N.A. and other parties thereto (the “Chiquita Indenture”)) for purposes of the Chiquita Indenture or (ii) a “Change in Control” (as defined in the Chiquita Share Plans) for purposes of the Chiquita Share Plans, then Fyffes shall cause the Fyffes Cashout Options to be cancelled immediately prior to the Effective Time and, in exchange, the holder of any such cancelled Fyffes Cashout Option shall receive, with respect to each Fyffes Share that was issuable pursuant to such Fyffes Cashout Option, an amount in cash from Fyffes equal to the excess (if any) of (x) the value of the underlying Fyffes Share at the Effective Time and (y) the exercise price payable pursuant to such Fyffes Cashout Option for that Fyffes Share, less (z) applicable taxes (the “Fyffes Option Cashout Payment”). For the avoidance of doubt, to the extent the exercise price of a Fyffes Cashout Option is greater than or equal to the value of an underlying Fyffes Share at the Effective Time, such Fyffes Cashout Option may be cancelled without any consideration. The Fyffes Option Cashout Payment, if any, shall be payable as soon as reasonably practical following the Effective Time. The “Option Conversion Committee” shall be a committee composed of one designated representative from Fyffes and one designated representative from Chiquita. Subject to the approval of the Panel, Fyffes shall cause the Fyffes Option Scheme to be amended, as soon as practicable following the date hereof, to permit the treatment of Fyffes Options set forth in this Clause 4. Chiquita and Fyffes agree to take or cause to be taken such steps as are necessary to obtain such approval and to resolve such objections (if any) that the Panel may assert in order to permit the treatment of Fyffes Options set forth in this Clause 4.2.
|
|
(e)
|
The Rule Change shall:
|
|
(i)
|
Permit the Option Conversion Committee, in its sole discretion, on
|
|
(ii)
|
extend the post-termination period described in Sections 9,10 and 11 of the Fyffes Option Scheme to take account of the Exercise Moratorium.
|
|
4.3
|
Treatment of Fyffes Short Term Incentive Plan
|
|
(a)
|
Subject to the approval of the Panel, any awards which vest under the Fyffes Short Term Incentive Plan shall be paid in cash within one month following the date of vesting and there shall be no deferral of any part of the award into Fyffes Shares.
|
|
(b)
|
Subject to any approval required from any Tax Authority and in accordance with the terms of the Fyffes Share Plans and applicable award agreements evidencing the outstanding Fyffes Share Awards, each Fyffes Share Award granted under the Fyffes Share Plans that is outstanding immediately prior to the Effective Time shall, by virtue of the occurrence of the Effective Time and pursuant to the Scheme and without any action on the part of the holder of such Fyffes Share Award, be assumed by IrHoldco and converted into the right to receive, on the same terms and conditions as were applicable under such Fyffes Share Award immediately prior to the Effective Time, a number of share awards denominated in IrHoldco Shares determined by multiplying the number of Fyffes Shares subject to the Fyffes Share Award immediately prior to the Effective Time by the Fyffes Equity Exchange Ratio, rounded down to the nearest whole share (any Fractional Entitlements shall be treated in accordance with Clause 4.9); provided, however, that to the extent that any Fyffes Share Award payable in Fyffes Shares shall become vested as a result of the transactions contemplated by the Scheme, such Fyffes Share Award shall become vested immediately prior to the Effective Time and, by virtue of the occurrence of the Effective Time and pursuant to the Scheme (or as appropriate the Organisational Documents of Fyffes to be adopted at the EGM) and without any action on the part of the holder of such Fyffes Share Award, the Fyffes Shares paid in respect of such award be converted into the right to receive from IrHoldco the Scheme Consideration in accordance with Clause 8.1(c)(i), less the Applicable Withholding Amount, no later than seven calendar days following the Effective Date.
|
|
4.4
|
Other Actions in Connection with the Assumption of Fyffes Options and Fyffes Share Awards
|
|
(a)
|
Not later than seven Business Days following the Effective Time, IrHoldco shall deliver to the holders of Fyffes Rollover Options appropriate notices setting forth such holders’ rights pursuant to the Fyffes Share Plans, and the agreements evidencing the grants of such Fyffes Rollover Options shall continue in effect on the same terms and conditions (subject to the adjustments required by Clause 4.2 after giving effect to the Merger and the assumption by IrHoldco as set forth above).
|
|
(b)
|
IrHoldco shall take all corporate action necessary to reserve for issuance a sufficient number of IrHoldco Shares for delivery with respect to Fyffes Rollover Options assumed by it in accordance with Clause 4.2. As of the Effective Time, IrHoldco shall file a registration statement on Form S-8 (or any successor or other appropriate form) with respect to the IrHoldco Shares subject to such Fyffes Rollover Options and shall maintain the effectiveness of such registration statement or registration statements (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such Fyffes Rollover Options remain outstanding.
|
|
(c)
|
For purposes of this Agreement, “Fyffes Equity Exchange Ratio” shall equal the Exchange Ratio.
|
|
4.5
|
Chiquita Share Awards
|
|
(a)
|
The Chiquita Board or the appropriate committee thereof shall take all action necessary so that:
|
|
(i)
|
Each option or other right to acquire Chiquita Shares granted under any Chiquita Share Plan (an “Chiquita Share Option”) that is outstanding immediately prior to the Effective Time shall, as of the Effective Time, cease to represent an option or other right to acquire Chiquita Shares and shall be converted, at the Effective Time, into an option to acquire, on the same terms and conditions as were applicable under the Chiquita Share Option (but taking into account any changes thereto provided for in the applicable Chiquita Share Plan, in any applicable award agreement or in such option), that number of IrHoldco Shares equal to the number of Chiquita Shares subject to such Chiquita Share Option immediately prior to the Effective Time, at a price per share equal to the per share exercise price specified in such Chiquita Share Option immediately prior to the Effective Time;
|
|
(ii)
|
Each issued and outstanding Chiquita Share subject to vesting or other lapse restrictions pursuant to the Chiquita Share Plans immediately prior to the Effective Time (a “Restricted Chiquita
|
|
(iii)
|
Each stock-based award, other than a Chiquita Share Option or Restricted Chiquita Share (“Other Chiquita Share-Based Awards”), granted under any Chiquita Share Plan and outstanding immediately prior to the Effective Time shall, as of the Effective Time, cease to represent an award based on Chiquita Shares and shall be converted into an award based on a number of IrHoldco Shares equal to the number of Chiquita Shares covered by such Other Chiquita Share-Based Award, provided that such a converted stock-based right or award shall be subject to the same terms and conditions (including the vesting terms) as were applicable to such Other Chiquita Share-Based Award in respect of which it was issued, except for (1) each Other Chiquita Share-Based Award granted under the Chiquita Relocation Retention Program (which shall be settled in Chiquita Shares immediately prior to the Effective Time) and (2) as set forth below with respect to Other Chiquita Share-Based Awards the vesting of which is conditioned upon the attainment of any then-applicable performance goals;
|
|
(iv)
|
Each Restricted Chiquita Share and Other Chiquita Share-Based Award the vesting of which is conditioned upon the attainment of performance goals and with respect to which the performance period is ongoing as of the Effective Time shall be converted into a time-based award which will vest based upon the holder’s continued employment through the originally scheduled vesting date or dates, at the target level of performance; provided that performance based restricted stock units which have not yet been earned and are subject to attainment of share prices with respect to Chiquita Shares shall remain unvested and shall be adjusted so that the share price goals pertain to IrHoldco Shares; and
|
|
(v)
|
Except as set forth on Section 4.5(a)(v) of the Chiquita Disclosure Schedule, the transactions contemplated by this Agreement are not intended to constitute a “Change in Control” (as defined in the
|
|
(b)
|
As soon as practicable after the Effective Time, IrHoldco shall deliver to the holders of Chiquita Share Options, Restricted Chiquita Shares and Other Chiquita Share-Based Awards appropriate notices setting forth such holders’ rights pursuant to the Chiquita Share Plans, and the agreements evidencing the grants of such Chiquita Share Options, Restricted Chiquita Shares and Other Chiquita Share-Based Awards, as the case may be, shall continue in effect on the same terms and conditions (subject to the adjustments required by this Clause 4.5 after giving effect to the Merger and the assumption by IrHoldco as set forth above).
|
|
(c)
|
IrHoldco shall take all corporate action necessary to reserve for issuance a sufficient number of IrHoldco Shares for delivery with respect to Chiquita Share Options, Restricted Chiquita Shares and Other Chiquita Share-Based Awards assumed by it in accordance with this Clause 4.5. As of the Effective Time, if requested by Chiquita prior to the Effective Time, IrHoldco shall file a registration statement on Form S-8 (or any successor or other appropriate form) with respect to the IrHoldco Shares subject to such Chiquita equity awards and shall maintain the effectiveness of such registration statement or registration statements (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such Chiquita equity awards remain outstanding.
|
|
4.6
|
Assumption of Chiquita Share Plans
|
|
(a)
|
As of the Effective Time, IrHoldco will assume all Chiquita Share Plans and the awards granted thereunder in accordance with Clause 4.5 and will be able to grant stock awards, to the extent permissible by applicable Laws and NYSE regulations, under the terms of the Chiquita Share Plans covering the reserved but unissued Chiquita Shares, except that (i) Chiquita Shares covered by such awards will be IrHoldco Shares and (ii) all references to a number of Chiquita Shares will be changed to references to IrHoldco Shares (and may be otherwise equitably adjusted, to the extent permitted under such plans and applicable Law).
|
|
(b)
|
As soon as reasonably practicable following the date of this Agreement, and in any event prior to the Effective Time, the Chiquita Board (or, if appropriate, any committee administering the Chiquita Share Plans) and
|
|
4.7
|
Corporate Actions
|
|
4.8
|
Amendment of Articles
|
|
4.9
|
Fractional Entitlements
|
5.
|
FYFFES AND CHIQUITA CONDUCT
|
|
5.1
|
Conduct of Business by Fyffes
|
(a)
|
At all times from the execution of this Agreement until the earlier of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Clause 9, except as may be required by Law, or as expressly contemplated or permitted elsewhere in this Agreement, or as set forth in Clause 5.1 of the Fyffes Disclosure Schedule (it being agreed that disclosure of any matter in any sub-clause of Clause 5.1 of the Fyffes Disclosure Schedule shall be deemed a disclosure with respect to any other sub-clause of this Clause 5.1 to which the relevance of such information is reasonably apparent), or with the prior written consent of Chiquita (such consent not to be unreasonably withheld, conditioned or delayed), Fyffes shall, and shall cause each of its Subsidiaries to, conduct its business in the ordinary course consistent with past practice in all material respects, and use all reasonable endeavours to maintain and preserve its business organization and its material rights and maintain relationships with customers, suppliers and other third parties; provided, however, that no action by Fyffes or its Subsidiaries with respect to matters specifically addressed by any provision of Clause 5.1(b) shall be deemed a breach of this sentence unless such action would constitute a breach of such relevant provision of Clause 5.1(b).
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(b)
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At all times from the execution of this Agreement until the earlier of the Effective Time and the date, if any, on which the Agreement is terminated pursuant to Clause 9, except as may be required by Law, or as expressly contemplated or permitted elsewhere in this Agreement, or as set forth in Clause 5.1 of the Fyffes Disclosure Schedule, or with the prior written consent of Chiquita (such consent not to be unreasonably withheld, conditioned or delayed), Fyffes:
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(i)
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shall not, and shall not permit any of its Subsidiaries that is not wholly owned to, authorise or pay any dividends on or make any distribution with respect to the outstanding shares in its capital (whether in cash, assets, shares or other securities of Fyffes or its Subsidiaries), except (A) dividends and distributions paid or made on a pro rata basis by Subsidiaries in the ordinary course consistent with past practice and (B) that, subject to Clause 7.9, Fyffes may continue to pay regular cash dividends on Fyffes Shares of not more than €0.68 per share, which may be increased by up to 5%
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(ii)
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shall not, and shall not permit any of its Subsidiaries to, split, combine or reclassify any of its shares of capital in issue, or issue or authorise the issuance of any other securities in respect of, in lieu of or in substitution for, shares in its capital, except for any such transaction by a wholly owned Subsidiary of Fyffes (unless such transaction would be reasonably expected to have material adverse tax consequences with respect to the transactions contemplated by this Agreement) which remains a wholly owned Subsidiary after consummation of such transaction;
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(iii)
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shall not, and shall not permit any of its Subsidiaries to (A) grant any Fyffes Options, Fyffes Share Awards or any other equity or equity-based awards or long-term incentives other than in the ordinary course of business consistent with past practice, provided that (i) the vesting of any awards granted after the date hereof shall not accelerate by virtue of the Effective Time and (ii) no such award may be granted with terms and conditions which would increase the likelihood, in the reasonable judgment of Fyffes and Chiquita, that the transactions contemplated by this Agreement would constitute a Change of Control under the Chiquita Indenture or a Change in Control for purposes of the Chiquita Share Plans, without giving effect to the Fyffes Cashout Options, and, provided, further, that purchases of Fyffes Shares pursuant to the Fyffes Profit Sharing Plan shall be permitted in the ordinary course of business consistent with past practice, (B) increase the compensation or other benefits payable or provided to Fyffes’ current or former directors, corporate officers or executive officers (other than payments due under the Fyffes Short Term Incentive Plan) other than in the ordinary course of business consistent with past practice, (C) increase the compensation or other benefits payable or provided to Fyffes’ employees who are not current or former directors, corporate officers or executive officers, other than in the ordinary course of business and consistent with past practices (including, but not limited to, payments due under the Fyffes Short Term Incentive Plan), (D) enter into any employment, change of control, severance or retention agreement with any Material Employee of Fyffes (except (1) to the extent necessary to replace a departing employee who was party to such an agreement,
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(iv)
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shall not, and shall not permit any of its Subsidiaries to, make any change in financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes that would materially affect the consolidated assets, liabilities or results of operations of Fyffes, except as required by EU IFRS or applicable Law;
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(v)
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shall not, and shall not permit any of its Subsidiaries to, authorise or announce an intention to authorise, or enter into agreements with respect to, any acquisitions of an equity interest in or a substantial portion of the assets of any person or any business or division thereof, or any mergers, consolidations or business
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(vi)
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shall not amend the Fyffes Memorandum and Articles of Association in any manner that would adversely affect the consummation of the transactions contemplated by this Agreement, and shall not permit any of its Subsidiaries to adopt any material amendments to its Organisational Documents;
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(vii)
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shall not, and shall not permit any of its Subsidiaries to, issue, deliver, grant, sell, pledge, dispose of or encumber, or authorise the issuance, delivery, grant, sale, pledge, disposition or encumbrance of, any shares in its capital, voting securities or other equity interest in Fyffes or any Subsidiaries or any securities convertible into or exchangeable for any such shares, voting securities or equity interest, or any rights, warrants or options to acquire any such shares in its capital, voting securities or equity interest or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock based performance units or take any action to cause to be exercisable any otherwise unexercisable Fyffes Option under any existing Fyffes Share Plan, other than (A) issuances of Fyffes Shares in respect of any exercise of Fyffes Options or the vesting or settlement of Fyffes Share Awards outstanding on the date hereof or as may be granted after the date hereof in accordance with this Clause 5.1(b), (B) withholding of Fyffes Shares to satisfy Tax obligations pertaining to the exercise of Fyffes Options or the vesting or settlement of Fyffes Share Awards or to satisfy the exercise price with respect to Fyffes Options or to effectuate an optionee direction upon exercise and (C) transactions among Fyffes and its wholly owned Subsidiaries or among Fyffes’ wholly
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(viii)
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shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, purchase, redeem or otherwise acquire any shares in its capital or any rights, warrants or options to acquire any such shares in its capital, except for (A) acquisitions of Fyffes Shares tendered by holders of Fyffes Options and Fyffes Share Awards in order to satisfy obligations to pay the exercise price and/or Tax withholding obligations with respect thereto and (B) transactions among Fyffes and its wholly owned Subsidiaries or among Fyffes’ wholly owned Subsidiaries (unless such transaction would be reasonably expected to have material adverse tax consequences with respect to the transactions contemplated by this Agreement);
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(ix)
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shall not, and shall not permit any of its Subsidiaries to, redeem, repurchase, prepay (other than prepayments of revolving loans), defease, incur, assume, endorse, guarantee or otherwise become liable for or modify in any material respects the terms of any indebtedness for borrowed money or issue or sell any debt securities or calls, options, warrants or other rights to acquire any debt securities (directly, contingently or otherwise), except for (A) any indebtedness for borrowed money among Fyffes and its wholly owned Subsidiaries or among Fyffes’ wholly owned Subsidiaries (unless such transaction would be reasonably expected to have material adverse tax consequences with respect to the transactions contemplated by this Agreement), (B) indebtedness for borrowed money incurred to replace, renew, extend, refinance or refund any existing indebtedness for borrowed money of Fyffes or any of its Subsidiaries, (C) guarantees by Fyffes of indebtedness for borrowed money of Subsidiaries of Fyffes or guarantees by Fyffes’ Subsidiaries of indebtedness for borrowed money of Fyffes or any Subsidiary of Fyffes, which indebtedness is incurred in compliance with this Clause 5.1(b)(ix), (D) indebtedness for borrowed money incurred pursuant to agreements entered into by Fyffes or its Subsidiaries in effect prior to the execution of this Agreement and set forth in Clause 5.1(b)(ix) of the Fyffes Disclosure Schedule (or entered into to refinance such indebtedness), (E) transactions at the stated maturity of such indebtedness and required amortization or mandatory prepayments and (F) indebtedness for borrowed money not to exceed $5 million in aggregate principal amount outstanding
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(x)
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shall not, and shall not permit any of its Subsidiaries to, make any loans to any other person involving in excess of $5 million individually or in the aggregate, except (A) (unless such transaction would be reasonably expected to have adverse tax consequences with respect to the transactions contemplated by this Agreement) for loans among Fyffes and its wholly owned Subsidiaries or among Fyffes’ wholly owned Subsidiaries or (B) as set forth in Clause 5.1(b)(x) of the Fyffes Disclosure Schedule;
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(xi)
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shall not, and shall not permit any of its Subsidiaries to, sell, lease, license, transfer, exchange, swap or otherwise dispose of, or subject to any Lien (other than Fyffes Permitted Liens), any of its material properties or assets (including shares in the capital of its or their Subsidiaries), except (A) pursuant to existing agreements in effect prior to the execution of this Agreement, (B) in the case of Liens, as required in connection with any indebtedness permitted to be incurred pursuant to sub-clause (ix) hereof, (C) sales of inventory in the ordinary course of business, (D) for transactions involving less than $1,000,000 individually and $5,000,000 in the aggregate, (E) (unless such transaction would be reasonably expected to have material adverse tax consequences with respect to the transactions contemplated by this Agreement) for transactions among Fyffes and its wholly owned Subsidiaries or among Fyffes’ wholly owned Subsidiaries, or (F) items set forth in Clause 5.1(b)(xi) of the Fyffes Disclosure Schedule;
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(xii)
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shall not, and shall not permit any of its Subsidiaries to, compromise or settle any claim, litigation, investigation or proceeding, in each case made or pending against Fyffes or any of its Subsidiaries (for the avoidance of doubt, not including any compromise or settlement with respect to matters in which any of them is a plaintiff), or any of their officers and directors in their capacities as such, other than (A) the compromise or settlement of claims, litigation, investigations or proceedings of the type described in Clause 5.1(b)(xii)(A) of the Fyffes Disclosure Schedule (the “Clause 5.1(b)(xii)(A) Claims”), as set forth in
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(xiii)
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shall not, and shall not permit any of its Subsidiaries to, make or change any material Tax election, change any material method of Tax accounting, file any material amended Tax Return, settle or compromise any audit or proceeding relating to a material amount of Taxes for the Fyffes Group, agree to an extension or waiver of the statute of limitations with respect to a material amount of Taxes, enter into any closing agreement with respect to any material amount of Taxes or surrender any right to claim a material amount of Tax refund;
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(xiv)
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shall not, and shall not permit any of its Subsidiaries to, make any new capital expenditure or expenditures, or commit to do so, materially in excess of the amounts set forth in Clause 5.1(b)(xiv) of the Fyffes Disclosure Schedule;
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(xv)
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except in the ordinary course of business consistent with past practice, shall not, and shall not permit any of its Subsidiaries to, enter into any contract that would, if entered into prior to the date hereof, be a Fyffes Material Contract, or materially modify, materially amend or terminate any Fyffes Material Contract or waive, release or assign any material rights or claims thereunder, which if so entered into, modified, amended, terminated, waived, released or assigned, in each case as applicable, would reasonably be expected to impair in any material respect (x) the ability of Fyffes and its Subsidiaries, taken as a whole, to conduct their business as currently conducted or (y) the ability of the parties to realize the anticipated benefits of the transactions contemplated hereby;
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(xvi)
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shall not, and shall not permit any of its Subsidiaries to, enter into any contract that would reasonably be expected to impair in any
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(xvii)
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shall not, and shall not permit any of its Subsidiaries to, other than in the ordinary course of business, alter any intercompany arrangements or agreements or the ownership structure among Fyffes and its wholly owned Subsidiaries or among Fyffes’ wholly owned Subsidiaries if such alterations, individually or in the aggregate, would reasonably be expected to have material tax consequences to Fyffes or any of its Subsidiaries;
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(xviii)
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shall not, and shall not permit any of its Subsidiaries to, terminate or cancel, or amend or modify in any material respect, any material insurance policies maintained by Fyffes covering Fyffes or any of its Subsidiaries, or their respective properties unless such terminated policies are replaced by a comparable amount of insurance coverage;
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(xix)
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shall not adopt or implement a plan of complete or partial liquidation or a dissolution, restructuring, recapitalization or other reorganization of Fyffes or any of its Material Subsidiaries; and
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(xx)
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shall not, and shall not permit any of its Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actions.
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5.2
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Conduct of Business by Chiquita
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(a)
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At all times from the execution of this Agreement until the earlier of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Clause 9, except as may be required by Law, or as expressly contemplated or permitted elsewhere in this Agreement, or as set forth in Clause 5.2 of the Chiquita Disclosure Schedule (it being agreed that disclosure of any matter in any sub-clause of Clause 5.2 of the Chiquita Disclosure Schedule shall be deemed a disclosure with respect to any
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(b)
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At all times from the execution of this Agreement until the earlier of the Effective Time and the date, if any, on which the Agreement is terminated pursuant to Clause 9, except as may be required by Law, or as expressly contemplated or permitted elsewhere in this Agreement, or as set forth in Clause 5.2 of the Chiquita Disclosure Schedule, or with the prior written consent of Fyffes (such consent not to be unreasonably withheld, conditioned or delayed), Chiquita:
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(i)
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shall not, and shall not permit any of its Subsidiaries that is not wholly owned to, authorise or pay any dividends on or make any distribution with respect to its outstanding shares of capital stock (whether in cash, assets, stock or other securities of Chiquita or its Subsidiaries), except dividends and distributions paid or made on a pro rata basis by Subsidiaries in the ordinary course consistent with past practice;
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(ii)
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shall not, and shall not permit any of its Subsidiaries to, split, combine or reclassify any of its capital stock, or issue or authorise the issuance of any other securities in respect of, in lieu of or in substitution for, shares of its capital stock, except for any such transaction by a wholly owned Subsidiary of Chiquita (unless such transaction would be reasonably expected to have material adverse tax consequences with respect to the transactions contemplated by this Agreement) which remains a wholly owned Subsidiary after consummation of such transaction;
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(iii)
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shall not, and shall not permit any of its Subsidiaries to (A) grant any Chiquita Share Options, Chiquita Share Awards or any other equity-based awards or long-term incentives other than in the ordinary course of business consistent with past practice, (B) increase the compensation or other benefits payable or provided to
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(iv)
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shall not, and shall not permit any of its Subsidiaries to, make any change in financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes that would materially affect the consolidated assets, liabilities or results of operations of Chiquita, except as required by US GAAP or applicable Law;
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(v)
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shall not, and shall not permit any of its Subsidiaries to, authorise or announce an intention to authorise, or enter into agreements with respect to, any acquisitions of an equity interest in or a substantial portion of the assets of any person or any business or division thereof, or any mergers, consolidations or business combinations except (i) for any of the foregoing which satisfies both of the following criteria: (a) has a purchase price or value, as applicable, that does not exceed $5,000,000 in the aggregate and (b) is not reasonably expected to make it more difficult to obtain any Clearance required to satisfy a Condition or that would reasonably be expected to prevent or materially delay or impede the consummation of the transactions contemplated by this Agreement (including the Combination), and (ii) in respect of any mergers, consolidations or business combinations among Chiquita and its wholly owned Subsidiaries or among Chiquita’s wholly owned Subsidiaries (unless such transaction would be reasonably expected to have adverse tax consequences with respect to the transactions contemplated by this Agreement), or pursuant to existing contracts set forth in Clause 5.1(b)(v) of the Chiquita Disclosure Schedule;
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(vi)
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shall not amend the Chiquita Certificate of Incorporation, the Chiquita Bylaws or the IrHoldco Memorandum and Articles of Association, and shall not permit any of the other Chiquita Merger Parties to amend any of the Other Chiquita Merger Party Organisational Documents, in each case in any manner that would adversely affect the consummation of the transactions contemplated by this Agreement, and shall not permit any of its Subsidiaries to adopt any material amendments to its Organisational Documents;
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(vii)
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shall not, and shall not permit any of its Subsidiaries to, issue, deliver, grant, sell, pledge, dispose of or encumber, or authorise the issuance, delivery, grant, sale, pledge, disposition or encumbrance of, any shares of its capital stock, voting securities or other equity interest in Chiquita or any Subsidiaries or any securities
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(viii)
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shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, purchase, redeem or otherwise acquire any shares in its capital or any rights, warrants or options to acquire any such shares in its capital, except for (A) acquisitions of Chiquita Shares tendered by holders of Chiquita Share Options and Chiquita Share Awards in order to satisfy obligations to pay the exercise price and/or Tax withholding obligations with respect thereto and (B) transactions among Chiquita and its wholly owned Subsidiaries or among Chiquita’s wholly owned Subsidiaries (unless such transaction would be reasonably expected to have material adverse tax consequences with respect to the transactions contemplated by this Agreement);
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(ix)
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shall not, and shall not permit any of its Subsidiaries to, redeem, repurchase, prepay (other than prepayments of revolving loans), defease, incur, assume, endorse, guarantee or otherwise become liable for or modify in any material respects the terms of any indebtedness for borrowed money or issue or sell any debt securities or calls, options, warrants or other rights to acquire any
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(x)
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shall not, and shall not permit any of its Subsidiaries to, make any loans to any other person involving in excess of $5 million individually or in the aggregate, except (A) (unless such transaction would be reasonably expected to have adverse tax consequences with respect to the transactions contemplated by this Agreement) for loans among Chiquita and its wholly owned Subsidiaries or among Chiquita’s wholly owned Subsidiaries or (B) as set forth in Clause 5.2(b)(x) of the Chiquita Disclosure Schedule;
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(xi)
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shall not, and shall not permit any of its Subsidiaries to, sell, lease, license, transfer, exchange, swap or otherwise dispose of, or subject to any Lien (other than Chiquita Permitted Liens), any of its material properties or assets (including shares in the capital of its or their Subsidiaries), except (A) pursuant to existing
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(xii)
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shall not, and shall not permit any of its Subsidiaries to, compromise or settle any claim, litigation, investigation or proceeding, in each case made or pending against Chiquita or any of its Subsidiaries (for the avoidance of doubt, not including any compromise or settlement with respect to matters in which any of them is a plaintiff), or any of their officers and directors in their capacities as such, other than (A) the compromise or settlement of claims, litigation, investigations or proceedings of the type described in Clause 5.2(b)(xii)(A) of the Chiquita Disclosure Schedule (the “Clause 5.2(b)(xii)(A) Claims”), as set forth in Clause 5.2(b)(xii)(A) of the Chiquita Disclosure Schedule and (B) in the case of any other such claims, litigations, investigations or proceedings that are not Clause 5.2(b)(xii)(A) Claims, any such compromise or settlement that (x) is for an amount not to exceed, for any such compromise or settlement individually or in the aggregate, the applicable amounts set forth on Clause 5.2(b)(xii)(B) of the Chiquita Disclosure Schedule or $5,000,000 (whichever amount is lower), (y) does not impose any material injunctive relief on Chiquita and its Subsidiaries, or otherwise as required by applicable Law or any judgment by a court of competent jurisdiction and (z) does not relate to any class action type claims, litigation, investigations or proceedings;
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(xiii)
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shall not, and shall not permit any of its Subsidiaries to, make or change any material Tax election, change any material method of Tax accounting, file any material amended Tax Return, settle or compromise any audit or proceeding relating to a material amount of Taxes for the Chiquita Group, agree to an extension or waiver of the statute of limitations with respect to a material amount of Taxes, enter into any closing agreement with respect to any
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(xiv)
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shall not, and shall not permit any of its Subsidiaries to, make any new capital expenditure or expenditures, or commit to do so, materially in excess of the amounts set forth in Clause 5.2(b)(xiv) of the Chiquita Disclosure Schedule;
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(xv)
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except in the ordinary course of business consistent with past practice, shall not, and shall not permit any of its Subsidiaries to, enter into any contract that would, if entered into prior to the date hereof, be a Chiquita Material Contract, or materially modify, materially amend or terminate any Chiquita Material Contract or waive, release or assign any material rights or claims thereunder, which if so entered into, modified, amended, terminated, waived, released or assigned, in each case as applicable, would reasonably be expected to impair in any material respect (x) the ability of Chiquita and its Subsidiaries, taken as a whole, to conduct their business as currently conducted or (y) the ability of the parties to realize the anticipated benefits of the transactions contemplated hereby;
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(xvi)
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shall not, and shall not permit any of its Subsidiaries to, enter into any contract that would reasonably be expected to impair in any material respect (x) the ability of Chiquita and its Subsidiaries, taken as a whole, to conduct their business as currently conducted or (y) the ability of the parties to realize the anticipated benefits of the transactions contemplated hereby, (A) for the sale, lease, or transfer (including the licensing, subleasing, or assigning) of any Chiquita Owned Real Property or Chiquita Leased Real Property, (B) to amend or modify in any material respect any Chiquita Lease, or (C) to lease, license, acquire or otherwise obtain property interests in any real property which, if such real property were acquired, licensed, leased, or for which any other property interests were obtained, prior to the date hereof, would constitute Chiquita Owned Real Property or Chiquita Leased Real Property.
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(xvii)
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shall not, and shall not permit any of its Subsidiaries to, other than in the ordinary course of business, alter any intercompany arrangements or agreements or the ownership structure among Chiquita and its wholly owned Subsidiaries or among Chiquita’s wholly owned Subsidiaries if such alterations, individually or in the aggregate, would reasonably be expected to have material tax consequences to Chiquita or any of its Subsidiaries;
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(xviii)
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shall not, and shall not permit any of its Subsidiaries to, terminate or cancel, or amend or modify in any material respect, any material insurance policies maintained by Chiquita covering Chiquita or any of its Subsidiaries, or their respective properties unless such terminated policies are replaced by a comparable amount of insurance coverage;
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(xix)
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shall not adopt or implement a plan of complete or partial liquidation or a dissolution, restructuring, recapitalization or other reorganization of Chiquita or any of its Material Subsidiaries; and
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(xx)
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shall not, and shall not permit any of its Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actions.
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5.3
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Non-Solicitation Applicable to Fyffes
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(a)
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Subject to any actions which Fyffes is required to take so as to comply with the requirements of the Takeover Rules, Fyffes agrees that neither it nor any Subsidiary of Fyffes nor any of their respective officers, directors or employees shall, and that it shall use all reasonable endeavours to cause its and their respective Representatives and any person Acting in Concert with Fyffes not to, directly or indirectly: (i) solicit, initiate or knowingly encourage any enquiry with respect to, or the making or submission of, any Fyffes Alternative Proposal, or (ii) participate in any discussions or negotiations regarding a Fyffes Alternative Proposal with, or furnish any nonpublic information of Fyffes to, any person that has made or, to Fyffes’ knowledge, is considering making a Fyffes Alternative Proposal, except to notify such person as to the existence of the provisions of this Clause 5.3. Fyffes shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any person conducted heretofore with respect to any Fyffes Alternative Proposal, or any enquiry or proposal that may reasonably be expected to lead to a Fyffes Alternative Proposal and request the prompt return or destruction of all confidential information previously furnished in connection therewith.
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(b)
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Notwithstanding the limitations set forth in Clause 5.3(a), if Fyffes receives a bona fide unsolicited written Fyffes Alternative Proposal or enquiry or proposal from a person who is intending on making a Fyffes Alternative Proposal and the Fyffes Board determines in good faith (after consultation with Fyffes’ financial advisors and outside legal counsel) that the failure to take the actions described in sub-clauses (x) and (y) below would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law (including, for the avoidance of doubt, Rule
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(c)
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Except as set forth in Clauses 5.3(d), (e) and (f) below, neither the Fyffes Board nor any committee thereof shall (i) (A) withdraw (or modify in any manner adverse to Chiquita), or propose publicly to withdraw (or modify in any manner adverse to Chiquita), the Scheme Recommendation or the
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(d)
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Nothing in this Agreement shall prohibit or restrict the Fyffes Board, at any time prior to obtaining the Fyffes Shareholder Approval, from making a Fyffes Change of Recommendation if the Fyffes Board has concluded in good faith (after consultation with Fyffes’ outside legal counsel and financial advisors) (i) that a Fyffes Alternative Proposal constitutes a Fyffes Superior Proposal and (ii) that the failure to make a Fyffes Change of Recommendation would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law; provided, however, that Fyffes shall have provided prior written notice to Chiquita, at least three Business Days in advance, of the Fyffes Board’s intention to make such Fyffes Change of Recommendation, and specifying the material terms of the Fyffes Alternative Proposal, the identity of the person making such Fyffes Alternative Proposal and such other information with respect to such Fyffes Alternative Proposal required by Clause 5.3(b), and provided, further, that the Fyffes Board shall take into account any changes to the terms of this Agreement, the Combination, the Scheme and/or the Merger proposed by Chiquita during such three Business Day period in response to such prior written notice or otherwise, and during such three Business Day period Fyffes shall engage in good faith negotiations with Chiquita
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(e)
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Nothing in this Agreement shall prohibit or restrict the Fyffes Board, in response to an Intervening Event, from making a Fyffes Change of Recommendation at any time prior to obtaining the Fyffes Shareholder Approval if the Fyffes Board has concluded in good faith (after consultation with Fyffes’ outside legal counsel and financial advisors) that the failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law; provided, however, that Fyffes shall have provided prior written notice to Chiquita, at least three Business Days in advance, of the Fyffes’ Board’s intention to make such Fyffes Change of Recommendation and specifying the reasons therefor, and provided, further, that the Fyffes Board shall take into account any changes to the terms of the Agreement, the Combination, the Scheme and/or the Merger proposed by Chiquita in response to such prior written notice or otherwise, and during such three Business Day period Fyffes shall engage in good faith negotiations with Chiquita regarding any changes to the terms of the Agreement proposed by Chiquita. Notwithstanding any Fyffes Change of Recommendation under this Agreement, unless this Agreement has been terminated in accordance with Clause 9, Fyffes shall hold the Court Meeting and the EGM in accordance with Clause 3.1 for purposes of obtaining the approval of the Resolutions by the requisite majorities of Fyffes Shareholders, and nothing contained herein shall be deemed to relieve Fyffes of such obligation.
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(f)
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Nothing contained in this Agreement shall prohibit or restrict Fyffes or the Fyffes Board from making any disclosure to the Fyffes Shareholders if, in the good faith judgment of the Fyffes Board (after consultation with Fyffes’ outside legal advisors), failure to so disclose would be reasonably likely to give rise to a violation of applicable Law; provided, however, that any such disclosure that relates to the approval, recommendation or declaration of advisability by the Fyffes Board with respect to this Agreement, the Scheme Recommendation or the recommendation contemplated by Clause 3.6(c)(iii), as applicable, or a Fyffes Alternative Proposal shall be deemed to be a Fyffes Change of Recommendation unless Fyffes in connection with such disclosure publicly and expressly states that the Fyffes Board rejects the applicable Fyffes Alternative Proposal or publicly and expressly states that its recommendation with respect to this Agreement and the Scheme Recommendation or, the recommendation contemplated by Clause 3.6(c)(iii), as applicable, has not changed or refers to the prior recommendation of the Fyffes Board, without disclosing or effecting any Change of Recommendation.
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(g)
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As used in this Agreement, “Fyffes Alternative Proposal” shall mean any bona fide proposal or bona fide offer made by any person (other than a proposal or offer by Chiquita or any person Acting in Concert with Chiquita pursuant to Rule 2.5 of the Takeover Rules) for (i) the acquisition of Fyffes by scheme of arrangement, takeover offer or business combination transaction; (ii) the acquisition by any person of 25% or more of the assets of Fyffes and its Subsidiaries, taken as a whole, measured by either book value or fair market value (including equity securities of Fyffes’ Subsidiaries); (iii) the acquisition by any person (or the stockholders of any person) of 25% or more of the outstanding Fyffes Shares; or (iv) any merger, business combination, consolidation, share exchange, recapitalisation or similar transaction involving Fyffes as a result of which the holders of Fyffes Shares immediately prior to such transaction do not, in the aggregate, own at least 75% of the outstanding voting power of the surviving or resulting entity in such transaction immediately after consummation thereof.
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(h)
|
As used in this Agreement “Fyffes Superior Proposal” shall mean an unsolicited written bona fide Fyffes Alternative Proposal made by any person that the Fyffes Board determines in good faith (after consultation with Fyffes’ financial advisors and outside legal counsel) is more favourable to the Fyffes Shareholders than the transactions contemplated by the Transaction Agreement, taking into account (i) any revisions to the terms of the transactions contemplated by this Agreement proposed by Chiquita in respect of such Fyffes Alternative Proposal in accordance with Clauses 5.3(d) and/or 5.3(e) and (ii) such financial, regulatory, legal and other aspects of such proposal as the Fyffes Board considers to be appropriate (it being understood that, for purposes of the definition of “Fyffes Superior Proposal”, references to “25%” and “75%” in the definition of Fyffes Alternative Proposal shall be deemed to refer to “50%”).
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(i)
|
The Parties agree that:
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(i)
|
Fyffes may terminate this Agreement, at any time prior to obtaining the Fyffes Shareholder Approval, in order to enter into any agreement, understanding or arrangement providing for a Fyffes Superior Proposal, provided that (w) the Fyffes Board has concluded in good faith (after consultation with Fyffes’ outside legal counsel and financial advisors) (1) that a Fyffes Alternative Proposal constitutes a Fyffes Superior Proposal and (2) that the failure to take such action would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable
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(ii)
|
in the event that a competitive situation arises pursuant to Rule 31.4 of the Takeover Rules in relation to Chiquita and a third party or parties, Fyffes shall use all reasonable endeavours to obtain permission from the Panel to provide that the auction procedure determined by the Panel shall give effect to and be consistent with Chiquita’s rights and the obligations of Fyffes and the Fyffes Board pursuant to Clause 5.3, and Fyffes shall use reasonable
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5.4
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Non-Solicitation Applicable to Chiquita
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(a)
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Chiquita agrees that neither it nor any Subsidiary of Chiquita nor any of their respective officers, directors or employees shall, and that it shall use all reasonable endeavours to cause its and their respective Representatives and any person Acting in Concert with Chiquita not to, directly or indirectly: (i) solicit, initiate or knowingly encourage any enquiry with respect to, or the making or submission of, any Chiquita Alternative Proposal, or (ii) participate in any discussions or negotiations regarding a Chiquita Alternative Proposal with, or furnish any nonpublic information of Chiquita to, any person that has made or, to Chiquita’s knowledge, is considering making a Chiquita Alternative Proposal, except to notify such person as to the existence of the provisions of this Clause 5.4. Chiquita shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any person conducted heretofore with respect to any Chiquita Alternative Proposal, or any enquiry or proposal that may reasonably be expected to lead to a Chiquita Alternative Proposal and request the prompt return or destruction of all confidential information previously furnished in connection therewith.
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(b)
|
Notwithstanding the limitations set forth in Clause 5.4(a), if Chiquita receives a bona fide unsolicited written Chiquita Alternative Proposal or enquiry or proposal from a person who is intending on making a Chiquita Alternative Proposal and the Chiquita Board determines in good faith (after consultation with Chiquita’s financial advisors and outside legal counsel) that the failure to take the actions described in sub-clauses (x) and (y) below would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law, and which Chiquita Alternative Proposal, enquiry or proposal was made after the date of this Agreement and did not otherwise result from a breach of this Clause 5.4, Chiquita may take any or all of the following actions: (x) furnish nonpublic information to the third party (and any persons working in concert with such third party and to their respective potential financing sources and Representatives) making or intending to make such Chiquita Alternative Proposal (provided that all such information has previously been provided to Fyffes or is provided to Fyffes prior to or concurrently with the time it is provided to such person(s)), if, and only if, prior to so furnishing such information, Chiquita receives from the third party and
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(c)
|
Except as set forth in Clauses 5.4(d), (e) and (f) below, neither the Chiquita Board nor any committee thereof shall (i) (A) withdraw (or modify in any manner adverse to Fyffes), or propose publicly to withdraw (or modify in any manner adverse to Fyffes), the Chiquita Recommendation, or (B) approve, recommend, adopt, or otherwise declare advisable, or propose publicly to approve, recommend, adopt or otherwise declare advisable, any Chiquita Alternative Proposal (any action in this sub-clause (i) being referred to as a “Chiquita Change of Recommendation”) (it being agreed that (x) no “stop, look and listen” communication pursuant to Rule 14d-9(f) of the Exchange Act in and of itself shall constitute a Chiquita Change of Recommendation and (y) for the avoidance of doubt, the provision by Chiquita to Fyffes of notice or
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(d)
|
Nothing in this Agreement shall prohibit or restrict the Chiquita Board, at any time prior to obtaining the Chiquita Shareholder Approval, from making a Chiquita Change of Recommendation if the Chiquita Board has concluded in good faith (after consultation with Chiquita’s outside legal counsel and financial advisors) (i) that a Chiquita Alternative Proposal constitutes a Chiquita Superior Proposal and (ii) that the failure to make a Chiquita Change of Recommendation would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law.
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(e)
|
Nothing in this Agreement shall prohibit or restrict the Chiquita Board, in response to an Intervening Event, from making a Chiquita Change of Recommendation at any time prior to obtaining the Chiquita Shareholder Approval if the Chiquita Board has concluded in good faith (after consultation with Chiquita’s outside legal counsel and financial advisors) that the failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law. Notwithstanding any Chiquita Change of Recommendation under this Agreement, unless this Agreement has been terminated in accordance with Clause 9, Chiquita shall hold the Chiquita Shareholders Meeting in accordance with Clause 3.7 for purposes of obtaining the Chiquita Shareholder Approval, and nothing contained herein shall be deemed to relieve Chiquita of such obligation.
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(f)
|
Nothing contained in this Agreement shall prohibit or restrict Chiquita or the Chiquita Board from (i) taking and disclosing to the Chiquita Shareholders a position or making a statement contemplated by Rule 14d-9, Rule 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under
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(g)
|
As used in this Agreement, “Chiquita Alternative Proposal” shall mean any bona fide proposal or bona fide offer made by any person for (i) the acquisition of Chiquita by takeover offer or business combination transaction; (ii) the acquisition by any person of 25% or more of the assets of Chiquita and its Subsidiaries, taken as a whole, measured by either book value or fair market value (including equity securities of Chiquita’s Subsidiaries); (iii) the acquisition by any person (or the stockholders of any person) of 25% or more of the outstanding Chiquita Shares; or (iv) any merger, business combination, consolidation, share exchange, recapitalisation or similar transaction involving Chiquita as a result of which the holders of Chiquita Shares immediately prior to such transaction do not, in the aggregate, own at least 75% of the outstanding voting power of the surviving or resulting entity in such transaction immediately after consummation thereof.
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(h)
|
As used in this Agreement “Chiquita Superior Proposal” shall mean an unsolicited written bona fide Chiquita Alternative Proposal made by any person that the Chiquita Board determines in good faith (after consultation with Chiquita’s financial advisors and outside legal counsel) is more favourable to the Chiquita Shareholders than the transactions contemplated by the Transaction Agreement, taking into account such financial, regulatory, legal and other aspects of such proposal as the Chiquita Board considers to be appropriate (it being understood that, for purposes of the definition of “Chiquita Superior Proposal”, references to “25%” and “75%” in the definition of Chiquita Alternative Proposal shall be deemed to refer to “50%”).
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(i)
|
The Parties agree that Chiquita may terminate this Agreement, at any time prior to obtaining the Chiquita Shareholder Approval, in order to enter into any agreement, understanding or arrangement providing for a Chiquita Superior Proposal, provided that the Chiquita Board has concluded in good faith (after consultation with Chiquita’s outside legal counsel and financial advisors) (1) that a Chiquita Alternative Proposal constitutes a Chiquita Superior Proposal and (2) that the failure to take such action would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law.
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6.
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REPRESENTATIONS AND WARRANTIES
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6.1
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Fyffes Representations and Warranties
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(a)
|
Qualification, Organisation, Subsidiaries, etc. Each of Fyffes and its Subsidiaries is a legal entity duly organised, validly existing and, where relevant, in good standing under the Laws of its respective jurisdiction of organisation and has all requisite corporate or similar power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted and is qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the ownership, leasing or operation of its assets or properties or conduct of its business requires such qualification, except where the failure to be so organised, validly existing, qualified or, where relevant, in good standing, or to have such power or authority, would not, individually or in the aggregate, reasonably be expected to have a Fyffes Material Adverse Effect. Fyffes has filed with the Registrar of Companies and has made available on its website in accordance with Rule 26 of each of the AIM Rules and the ESM Rules, prior to the date of this Agreement, a complete and accurate copy of the Memorandum and Articles of Association of Fyffes (the “Fyffes Memorandum and Articles of Association”) as
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(i)
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Subsidiaries. All the issued and outstanding shares of capital stock of, or other equity interests in, each Significant Subsidiary of Fyffes have been validly issued and are fully paid and nonassessable and are owned, directly or indirectly, by Fyffes free and clear of all Liens, other than Fyffes Permitted Liens. Clause 6.1(a) of the Fyffes Disclosure Schedule contains a correct and complete list of all of Fyffes’ Material Subsidiaries, the ownership interest of Fyffes in each such Subsidiary and the ownership interest of any other Person or Persons in each such Subsidiary.
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(b)
|
Capital.
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(i)
|
The authorised capital of Fyffes consists of 750,000,000 Fyffes Shares. As of March 6, 2014 (the “Capitalisation Date”), 325,734,807 Fyffes Shares were issued and outstanding, of which 28,075,000 Fyffes Shares were held in treasury (5,075,000 of which Fyffes Shares held in treasury were held by Subsidiaries of Fyffes). All the outstanding Fyffes Shares are, and all Fyffes Shares reserved for issuance as noted above shall be, when issued in accordance with the respective terms thereof, duly authorised, validly issued, fully paid and non-assessable and free of pre-emptive rights.
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(ii)
|
Clause 6.1(b)(ii) of the Fyffes Disclosure Schedule contains a correct and complete list of each outstanding Fyffes Option and Fyffes Share Award under the Fyffes Share Plans as of the Capitalisation Date, including the holder, date of grant, term, number of Fyffes Shares subject thereto (at both target and maximum levels of performance, if applicable), the Fyffes Share Plan under which such Fyffes Option or Fyffes Share Award was granted and where applicable, exercise price and vesting schedule, including whether the vesting will be accelerated by the execution of the Agreement or consummation of the transactions contemplated by the Agreement or by change of position following consummation of the transactions contemplated by the Agreement.
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(iii)
|
Except as set forth in Clause 6.1.(b)(iii) of the Fyffes Disclosure Schedule, there are no outstanding pre-emptive or other outstanding rights. Except as set forth in sub-clause (i) above, as of
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(iv)
|
Neither Fyffes nor any of its Subsidiaries has outstanding bonds, debentures, notes or other similar obligations, the holders of which have the right to vote (or which are convertible into or exercisable for securities having the right to vote) with the Fyffes Shareholders on any matter.
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(v)
|
There are no voting trusts or other agreements or understandings to which Fyffes or any of its Subsidiaries is a party with respect to the voting of the shares in the capital or other equity interest of Fyffes or any of its Subsidiaries.
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(vi)
|
Fyffes has delivered or otherwise made available to Chiquita prior to the date of the Agreement true and complete copies of all Fyffes Share Plans covering the Fyffes Options and Fyffes Share Awards outstanding as of the date of the Agreement, the forms of all award agreements evidencing such Fyffes Options and, if applicable, Fyffes Share Awards (and any other award agreement to the extent there are variations from the form of agreement, specifically
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(c)
|
Corporate Authority Relative to this Agreement; No Violation.
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(i)
|
Fyffes has all requisite corporate power and authority to enter into this Agreement and the Expenses Reimbursement Agreement and, subject (in the case of this Agreement) to receipt of the Fyffes Shareholder Approval (and, in the case of the IrHoldco Distributable Reserves Creation, to approval of the Fyffes Distributable Reserves Resolution by the Fyffes Shareholders and the Chiquita Distributable Reserves Resolution by the Chiquita Shareholders, to the adoption by the shareholders of IrHoldco of the resolution contemplated by Clause 7.10(c)(i) and to receipt of the required approval by the High Court), to consummate the transactions contemplated hereby and thereby, including the Combination. The execution and delivery of this Agreement and the Expenses Reimbursement Agreement and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorised by the Fyffes Board and, except for (A) the Fyffes Shareholder Approval, (B) the filing of the required documents and other actions in connection with the Scheme with, and to receipt of the required approval of the Scheme by, the High Court, and (C) the filing of the Court Order with the Registrar of Companies, no other corporate proceedings on the part of Fyffes are necessary to authorise the consummation of the transactions contemplated hereby. On or prior to the date hereof, the Fyffes
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(ii)
|
Other than in connection with or in compliance with (A) the provisions of the Companies Acts, (B) the Takeover Panel Act and the Takeover Rules, (C) the Securities Act, (D) the Exchange Act, (E) the HSR Act, (F) any applicable requirements under the EC Merger Regulation, (G) any applicable requirements of other Antitrust Laws, (H) any applicable requirements of the AIM or ESM and (I) the Clearances set forth on Clause 6.1(c)(ii) of the Fyffes Disclosure Schedule, no authorisation, consent or approval of, or filing with, any Relevant Authority is necessary, under applicable Law, for the consummation by Fyffes of the transactions contemplated by this Agreement, except for such authorisations, consents, approvals or filings (I) that, if not obtained or made, would not reasonably be expected to have, individually or in the aggregate, a Fyffes Material Adverse Effect or (II) as may arise as a result of facts or circumstances relating to Chiquita or its Affiliates or Laws or contracts binding on Chiquita or its Affiliates.
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(iii)
|
The execution and delivery by Fyffes of this Agreement and the Expenses Reimbursement Agreement do not, and, except as described in Clause 6.1(c)(ii), the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not (A) result in any violation or breach of, or default or change of control (with or without notice or lapse of time, or both) under, or give rise to a right of, or result in, termination, modification, cancellation or acceleration of any material obligation or to the loss of a material benefit under any loan, guarantee of indebtedness or credit agreement, note, bond, mortgage, indenture, lease, agreement, contract, instrument, permit, concession, franchise, right or license (each, a “Contract”) binding upon Fyffes or any of Fyffes’ Subsidiaries or any of their respective properties, rights or assets or result in the creation of
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(d)
|
Reports and Financial Statements.
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(i)
|
From December 31, 2012 through the date of this Agreement, Fyffes has filed or published all forms, documents and reports (including exhibits and other information incorporated therein) required to be published prior to the date hereof by it in accordance with the AIM Rules and the ESM Rules, including the information required to be made available by it on its website under Rule 26 of each of the AIM Rules and the ESM Rules (the “Rule 26 Information”, and with such other forms, documents and reports the “Fyffes Documents”) and has filed all returns, particulars, resolutions and documents required to be filed or to be delivered on behalf of Fyffes with the Registrar of Companies in Ireland. As of their respective dates, or, if amended, as of the date of the last such amendment, the Fyffes Documents complied in all material respects with the requirements of the AIM Rules and the ESM Rules and the applicable rules and regulations promulgated thereunder, and none of the Fyffes Documents contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made not misleading.
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(ii)
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The consolidated financial statements (including all related notes and schedules) of Fyffes included in the Fyffes Documents when filed or published complied as to form in all material respects with
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(e)
|
Internal Controls and Procedures. Fyffes maintains a system of internal controls over financial reporting which is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with EU IFRS and includes those policies and procedures that: (a) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the asset of Fyffes, (b) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with EU IFRS, and that receipts and expenditures of Fyffes are being made only in accordance with authorisations of management and directors of Fyffes, and (c) provide reasonable assurance regarding prevention or timely detection of unauthorised acquisition, use or disposition of Fyffes’ assets that could have a material effect on its financial statements.
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(f)
|
No Undisclosed Liabilities. Except (i) as disclosed, reflected or reserved against in Fyffes’ consolidated balance sheet (or the notes thereto) as of December 31, 2013 included in the Fyffes Documents filed or furnished on or prior to the date hereof, (ii) for liabilities incurred in the ordinary course of business since December 31, 2013, (iii) as expressly permitted or contemplated by this Agreement and (iv) for liabilities which have been discharged or paid in full in the ordinary course of business, as of the date hereof, neither Fyffes nor any Subsidiary of Fyffes has any liabilities of any nature, whether or not accrued, contingent or otherwise, that would be required by EU IFRS to be reflected on a consolidated balance sheet of Fyffes and its consolidated Subsidiaries (or in the notes thereto), other than those which, individually or in the aggregate, would not reasonably be expected to have a Fyffes Material Adverse Effect. Fyffes is not a party to any “off balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K promulgated by the SEC).
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(g)
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Compliance with Law; Permits.
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(i)
|
Fyffes and each of Fyffes’ Subsidiaries are in compliance with and are not in default under or in violation of any Laws applicable to Fyffes, such Subsidiaries or any of their respective properties or assets, except where such noncompliance, default or violation would not reasonably be expected to have, individually or in the aggregate, a Fyffes Material Adverse Effect.
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(ii)
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Fyffes and Fyffes’ Subsidiaries are in possession of all franchises, grants, authorisations, licenses, permits, easements, variances, exceptions, consents, certificates, approvals and orders of any Relevant Authority necessary for Fyffes and Fyffes’ Subsidiaries to own, lease and operate their properties and assets or to carry on their businesses as they are now being conducted (the “Fyffes Permits”), except where the failure to have any of the Fyffes Permits would not reasonably be expected to have, individually or in the aggregate, a Fyffes Material Adverse Effect. All Fyffes Permits are in full force and effect, except where the failure to be in full force and effect would not reasonably be expected to have, individually or in the aggregate, a Fyffes Material Adverse Effect.
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(iii)
|
Notwithstanding anything contained in this Clause 6.1(g), no representation or warranty shall be deemed to be made in this Clause 6.1(g) in respect of the matters referenced in Clause 6.1(d) or 6.1(e), or in respect of environmental, Tax, employee benefits or labour Laws matters.
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(h)
|
Environmental Laws and Regulations.
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(i)
|
Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Fyffes Material Adverse Effect, to the knowledge of Fyffes: (i) each of Fyffes and its Subsidiaries (A) is and has been in compliance with applicable Environmental Laws and (B) holds and is and has been in compliance with all Permits required under Environmental Laws for the conduct of its business and activities as currently conducted (the “Environmental Permits”); (ii) all Environmental Permits were validly issued and are in full force and effect, and all applications, notices or other documents have been timely filed to effect timely renewal, issuance or reissuance of such Environmental Permits; and (iii) all Environmental Permits are expected to be issued or reissued on a timely basis on such terms and conditions as are reasonably expected to enable Fyffes and its
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(ii)
|
To the knowledge of Fyffes, neither Fyffes nor any of its Subsidiaries is the subject of any Environmental Claim, and no Environmental Claim is pending or, to the knowledge of Fyffes, threatened against Fyffes or any of its Subsidiaries or against any Person whose liability for the Environmental Claim was or may have been retained or assumed by Contract or by operation of Law or pursuant to any Order by Fyffes or any of its Subsidiaries, except for any such Environmental Claims that have not had and would not reasonably be expected to have, individually or in the aggregate, a Fyffes Material Adverse Effect.
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(iii)
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To the knowledge of Fyffes, no Hazardous Materials are present at, on, under or emanating from any properties or facilities currently leased, operated or used or previously owned, leased, operated or used, in circumstances that would reasonably be expected to form the basis for a material Environmental Claim against, or a requirement for investigation or remediation pursuant to applicable Environmental Law by, Fyffes or any of its Subsidiaries.
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(iv)
|
To the knowledge of Fyffes, neither Fyffes nor any of its Subsidiaries has Released, disposed of, or arranged to dispose of, any Hazardous Materials in a manner, or to a location, that would reasonably be expected to result in a material Environmental Claim.
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(v)
|
To the knowledge of Fyffes, no material Lien imposed by any Governmental Entity having jurisdiction pursuant to any Environmental Law is currently outstanding as to any assets owned, leased or operated by Fyffes or any of its Subsidiaries.
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(vi)
|
To the knowledge of Fyffes, Fyffes has provided Chiquita with copies of all material written environmental, health or safety assessments, audits, investigations, and sampling, monitoring, remediation reports and similar documents in Fyffes’ possession or, within its control, which were prepared within three years prior to the date hereof or, to the knowledge of Fyffes, prior thereto, including any material documents relating to the Release or presence of, or exposure to, any Hazardous Materials.
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(vii)
|
As used herein, the term “Environment” means any ambient air, surface water, drinking water, groundwater, land surface (whether below or above water), subsurface strata, sediment, plant or animal life, and natural resources. As used herein, the term “Environmental Claim” means any claim, judicial or administrative proceeding, investigation or notice by any Person, including any Governmental Entity, alleging potential liability (including potential liability for investigatory costs, cleanup or remediation costs, governmental or third party response costs, natural resource damages, property damage, personal injuries, or fines or penalties) based on or resulting from (A) the presence or Release of, or exposure to, any Hazardous Materials at any location, whether or not owned or operated by Fyffes or any of its Subsidiaries or Chiquita or any of its Subsidiaries, as applicable, or (B) any Environmental Law, including the alleged or actual violation thereof. As used herein, the term “Environmental Law” means any law, statute, ordinance, regulation, order or rule relating to: (A) the Environment, including pollution, contamination, cleanup, preservation, protection and reclamation of the Environment, (B) the protection of human health with respect to, or the exposure of employees or third parties to, any Hazardous Materials, (C) any Release or threatened Release of any Hazardous Materials, including investigation, assessment, testing, monitoring, containment, removal, remediation and cleanup of any such Release or threatened Release, (D) the management of any Hazardous Materials, including the use, labeling, processing, disposal, storage, treatment, transport, or recycling of any Hazardous Materials, or (E) the presence of Hazardous Materials in any building, physical structure, product or fixture. As used herein, the term “Environmental Liability” means any obligations or liabilities (including any notices, claims, complaints, suits or other assertions of obligations or liabilities) that are any of the following: (A) related to the Environment (including on-site or off-site contamination by Hazardous Substances of surface or subsurface soil or water) or exposure to Hazardous Substances; and (B) based upon (I) any provision of Environmental Laws or (II) any order, consent, decree, writ, injunction or judgment issued or otherwise imposed by any Relevant Authority; and, for the avoidance of doubt, the term includes: fines, penalties, judgments, awards, settlements, losses, damages, costs, fees (including attorneys’ and consultants’ fees), expenses and disbursements relating to environmental matters; defense and other responses to any administrative or judicial action (including notices, claims,
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(i)
|
Employee Benefit Plans.
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|
(i)
|
Clause 6.1(i)(i) of the Fyffes Disclosure Schedule sets forth a true and complete list of the material Fyffes Benefit Plans, separately identifying each material Fyffes Benefit Plan that is maintained primarily for the benefit of Fyffes Employees outside of the United States, it being agreed that individual agreements or arrangements with Fyffes Employees who are not Material Employees of Fyffes shall not be treated as material for purposes of this Clause 6.1(i)(i). True and complete copies of all material Fyffes Benefit Plans listed in Clause 6.1(i)(i) of the Fyffes Disclosure Schedule, and all material related documents, have been provided to Chiquita prior to the date of the Agreement.
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(ii)
|
Except as set forth in Clause 6.1(i)(ii) of the Fyffes Disclosure Schedule and except as would not, individually or in the aggregate, reasonably be expected to have a Fyffes Material Adverse Effect, (A) each of the Fyffes Benefit Plans has been operated and administered in accordance with its terms and applicable Laws; (B) no Fyffes Benefit Plan provides benefits, including death or medical benefits (whether or not insured), with respect to current or former employees or directors of Fyffes or its Subsidiaries beyond their retirement or other termination of service, other than as set out in the Fyffes Defined Benefit Occupational Pension Scheme and as mandated by applicable Law; (C) all contributions
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(iii)
|
Except as would not otherwise, individually or in the aggregate, reasonably be expected to have a Fyffes Material Adverse Effect, in the six (6) years prior to the date of this Agreement, Fyffes and its ERISA Affiliates have not nor have been obligated to sponsor, maintain or contribute to any benefit plan that is subject to Title IV of ERISA or Section 412 of the Code.
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(iv)
|
Except as set forth on Clause 6.1(i)(iv) of the Fyffes Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either alone or in conjunction with any other event) alone will (A) result in any payment (including severance, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), forgiveness of indebtedness or otherwise) becoming due to any current or former director or any employee of the Fyffes Group, (B) increase any benefits otherwise payable under any Fyffes Benefit Plan or (C) result in any
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(j)
|
Absence of Certain Changes or Events. From December 31, 2012 through the date of this Agreement, other than the transactions contemplated by this Agreement, the businesses of Fyffes and its Subsidiaries have been conducted, in all material respects, in the ordinary course of business. Since December 31, 2012, there has not been any change, circumstance, development, effect, event or occurrence that has had, or would reasonably be expected to have, individually or in the aggregate, a Fyffes Material Adverse Effect. From December 31, 2013 through the date of this Agreement, neither Fyffes nor any of its Subsidiaries has taken any action that would constitute a breach of Clause 5.1(b)(i), (x), (xi), (xii) or (xvii) had such action been taken after the execution of this Agreement.
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(k)
|
Investigations; Litigation. (i) There is no investigation or review pending (or, to the knowledge of Fyffes, threatened) by any Relevant Authority with respect to Fyffes or any of Fyffes’ Subsidiaries or any of their respective properties, rights or assets, and (ii) there are no claims, actions, suits or proceedings pending (or, to the knowledge of Fyffes, threatened) against Fyffes or any of Fyffes’ Subsidiaries or any of their respective properties, rights or assets before, and there are no orders, judgments or decrees of, any Relevant Authority, which, in the case of sub-clause (i) or (ii), would reasonably be expected to have, individually or in the aggregate, a Fyffes Material Adverse Effect.
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(l)
|
Information Supplied. The information relating to Fyffes, its Subsidiaries and the Fyffes Merger Parties to be contained in the Joint Proxy Statement and the Form S-4 will not, on the date the Joint Proxy Statement (and any amendment or supplement thereto) is first mailed or posted to Fyffes Shareholders and at the time the Form S-4 is declared effective (and any amendment or supplement thereto) or at the time of the Fyffes Shareholders Meeting, contain any untrue statement of any material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, at the time and in light of the circumstances under which they were made, not false or misleading. The Joint Proxy Statement and the Form S-4 (other than the portions thereof relating solely to the Court Meeting or the EGM) will comply in all material respects as to form with the requirements of both the Exchange Act and the Securities Act and the rules and regulations promulgated thereunder. The parts of the Scheme Document for which the Fyffes Directors are responsible under the Takeover Rules and any related filings for which the Fyffes Directors are responsible under the Takeover Rules
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(m)
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Tax Matters.
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(i)
|
Except as would not, individually or in the aggregate, reasonably be expected to have a Fyffes Material Adverse Effect:
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(A)
|
all Tax Returns that are required to be filed by or with respect to Fyffes or any of its Subsidiaries have been timely filed (taking into account any extension of time within which to file), and all such Tax Returns are true, correct and complete;
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(B)
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Fyffes and its Subsidiaries have paid all Taxes required to be paid by any of them, including any Taxes required to be withheld from amounts owing to any employee, creditor, or third party, except with respect to matters for which adequate reserves have been established in accordance with EU IFRS in the most recent Fyffes annual financial statement, as adjusted for operations in the ordinary course of business since the last date which is covered by such statement;
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(C)
|
there is no audit, examination, deficiency, refund litigation, proposed adjustment, or matter in controversy with respect to any Taxes or Tax Return of Fyffes or any of its Subsidiaries;
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(D)
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the Tax Returns of Fyffes and each of its Subsidiaries have been examined by the applicable Tax Authority (or the applicable statutes of limitations for the assessment of income Taxes for such periods have expired) for all periods through and including 2012, and no deficiencies were asserted as a result of such examinations which have not been resolved and fully paid or accrued as a liability on the most recent Fyffes annual financial statement;
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(E)
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neither Fyffes nor any of its Subsidiaries has waived any statute of limitations with respect to Taxes or agreed to any
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(F)
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all Taxes due and payable by Fyffes or any of its Subsidiaries have been adequately provided for, in accordance with EU IFRS, in the financial statements of Fyffes and its Subsidiaries for all periods ending on or before the date hereof;
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(G)
|
neither Fyffes nor any of its Subsidiaries has constituted a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (or any similar provision of state, local, or non-U.S. law) in the two years prior to the date of this Agreement;
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(H)
|
none of Fyffes or any of its Subsidiaries has any liability for Taxes of any Person (other than Fyffes or any of its Subsidiaries) under U.S. Treasury Regulation § 1.1502-6 (or any similar provision of state, local, or non-U.S. law), as transferee or successor, by contract or otherwise;
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(I)
|
there are no liens for Taxes upon any property or assets of Fyffes or any of its Subsidiaries, except for Fyffes Permitted Liens; and
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(J)
|
no private letter rulings, technical advice memoranda, or similar agreements or rulings have been entered into or issued by any Tax Authority with respect to Fyffes or any of its Subsidiaries for any taxable year for which the statute of limitations has not yet expired.
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(ii)
|
As used in this Agreement, (A) the term “Tax” (including the plural form “Taxes” and, with correlative meaning, the terms “Taxable” and “Taxation”) means all U.S. federal, state, local and non-U.S. (including Irish) income, gain, profits, windfall profits, franchise, gross receipts, environmental, customs duty, capital stock, severances, stamp, payroll, sales, employment, unemployment, disability, use, property, unclaimed property, escheat, withholding, excise, production, value added, occupancy and other taxes, duties or assessments of any nature whatsoever, together with all interest, penalties and additions imposed with respect to such amounts and any interest in respect of such
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(n)
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Labour Matters.
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(i)
|
Except as set forth in Clause 6.1(n)(i) of the Fyffes Disclosure Schedule, as of the date hereof, no member of the Fyffes Group is a party to, or bound by, any collective bargaining agreement, contract or other agreement or binding understanding with a labour union or labour organisation. No member of the Fyffes Group is subject to a labour dispute, strike or work stoppage except as would not have, individually or in the aggregate, a Fyffes Material Adverse Effect. To the knowledge of Fyffes, there are no organisational efforts with respect to the formation of a collective bargaining unit presently being made or threatened involving employees of the Fyffes Group, except for those the formation of which would not have, individually or in the aggregate, a Fyffes Material Adverse Effect.
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(ii)
|
Except as set forth in Clause 6.1(n)(ii) of the Fyffes Disclosure Schedule, the transactions contemplated by this Agreement will not require the consent of, or advance notification to, any works councils, unions or similar labour organisations with respect to employees of the Fyffes Group, other than any such consents the failure of which to obtain or advance notifications the failure of which to provide as would not reasonably be expected to have, individually or in the aggregate, a Fyffes Material Adverse Effect.
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(o)
|
Intellectual Property. Except as would not reasonably be expected to have, individually or in the aggregate, a Fyffes Material Adverse Effect, either Fyffes or a Subsidiary of Fyffes owns, or is licensed or otherwise possesses legally enforceable rights to use, all Intellectual Property used in their respective businesses as currently conducted. There are no pending or, to the knowledge of Fyffes, threatened written claims by any person alleging infringement by Fyffes or its Subsidiaries for their use of any material trademarks, trade names, service marks, service names, logos,
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(p)
|
Real Property.
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(i)
|
With respect to the real property owned by Fyffes or any Subsidiary as of the date hereof (such property collectively, the “Fyffes Owned Real Property”), except as would not reasonably be expected to have, individually or in the aggregate, a Fyffes Material Adverse Effect, either Fyffes or a Subsidiary of Fyffes has good and marketable fee title to such Fyffes Owned Real Property, free and clear of all Liens, other than any such Lien (A) for Taxes or governmental assessments, charges or claims of payment not yet due and payable, being contested in good faith or for which adequate accruals or reserves have been established in accordance with EU IFRS, (B) which is a carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other similar lien arising in the ordinary course of business if the underlying obligations (1) are not yet due and payable or (2) are being contested in good faith by appropriate proceedings, (C) Liens securing property level indebtedness which is disclosed on the most recent consolidated balance sheet of Fyffes or notes thereto or securing liabilities reflected on such balance sheet, (D) Liens arising under equipment leases with third parties entered into in the ordinary course of business or (E) which are non-monetary, incurred in the ordinary course of business and would not reasonably be expected to materially impair the continued use of
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(ii)
|
The parcels constituting Fyffes Owned Real Property in the United States are assessed separately from all other property not constituting Fyffes Owned Real Property in the United States.
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(iii)
|
Except as would not reasonably be expected to have, individually or in the aggregate, a Fyffes Material Adverse Effect, (A) each lease, sublease and other agreement (“Fyffes Lease”) under which Fyffes or any of its Subsidiaries uses or occupies or has the right to use or occupy any real property at which the operations of Fyffes and its Subsidiaries are conducted as of the date hereof (the “Fyffes Leased Real Property”), is valid, binding and in full force and effect, and (B) there is no material default under any Fyffes Lease and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by Fyffes or any of its Subsidiaries or, to the knowledge of Fyffes, the landlord thereunder. Except as would not reasonably be expected to have, individually or in the aggregate, a Fyffes Material Adverse Effect, Fyffes and each of its Subsidiaries has a good and valid leasehold interest, subject to the terms of any lease, sublease or other agreement applicable thereto, in each parcel of Fyffes Leased Real Property, free and clear of all Liens, except for Fyffes Permitted Liens. As of the date hereof, neither Fyffes nor any of its Subsidiaries (1) has received written notice from any lessor under any Fyffes Lease that such lessor intends to terminate such Fyffes Lease, or (2) has received notice of any pending, and, to the knowledge of Fyffes, there is no threatened, condemnation proceeding with respect to any Fyffes Leased Real Property, except such proceeding which would not reasonably be expected to have, individually or in the aggregate, a Fyffes Material Adverse Effect.
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(iv)
|
True, correct, and complete copies of all material leases, subleases, or other agreement under which Fyffes or any of its Subsidiaries
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(v)
|
Fyffes Owned Real Property and Fyffes Leased Real Property includes all of the real property necessary for the conduct of the business of Fyffes and its Subsidiaries as currently conducted.
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(vi)
|
Except as would not reasonably be expected to have, individually or in the aggregate, a material effect on the operations of Fyffes, the Fyffes Owned Real Property and Fyffes Leased Real Property (A) are, in each case, in working order sufficient for the conduct of the business of Fyffes and its Subsidiaries as currently conducted, (B) are, in each case, supplied with utilities and other services adequate for the operation of said Fyffes Owned Real Property or Fyffes Leased Real Property, (C) has, in each case, unlimited access to and from publicly dedicated streets, and (D) are not subject to any outstanding options to purchase, rights of first refusal or similar rights in favor of any Person.
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(vii)
|
Neither Fyffes nor any of its Subsidiaries has granted to any Person (other than Fyffes or its Subsidiaries) the right of use or occupancy of any portion of any material Fyffes Owned Real Property or material Fyffes Leased Real Property, other than as set forth on Clause 6.1(p)(vii) of the Fyffes Disclosure Schedule, which use or occupancy does not interfere in any material respect with the ordinary conduct of business of Fyffes or its Subsidiaries at the Fyffes Owned Real property affected thereby.
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(viii)
|
Clause 6.1(p)(viii) of the Fyffes Disclosure Schedule contains a true and complete list of all material Fyffes Owned Real Property and material Fyffes Leased Real Property (and (A) for each material Fyffes Owned Real Property, the location, street address, and name of the fee owner, and (B) for each material Fyffes Leased Real Property, the location, street address, and the names of the parties thereto).
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(q)
|
Required Vote of Fyffes Shareholders. The Fyffes Shareholder Approval is the only vote of holders of securities of Fyffes which is required to consummate the transactions contemplated hereby (other than, in the case of the IrHoldco Distributable Reserves Creation, the approval of the Fyffes Distributable Reserves Resolution by the Fyffes Shareholders).
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(r)
|
Material Contracts.
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(i)
|
Clause 6.1(r)(i) of the Fyffes Disclosure Schedule identifies each Fyffes Material Contract that is in effect as of the date hereof. True, correct and complete copies of each have been made available to Chiquita other than to the extent that confidentiality restrictions, Laws (in particular Antitrust Laws) or other obligations applicable to Fyffes restrict the ability of Fyffes to provide copies of Fyffes Material Contracts to Chiquita. For purposes of this Agreement, “Fyffes Material Contracts” mean each of the following contracts to which Fyffes or any of its Subsidiaries is a party or to which any of them is bound:
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(A)
|
any Contract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K);
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(B)
|
any Contract that, in any material respect, limits the ability of Fyffes or any of its Subsidiaries to compete in any line of business or with any Person or in any geographic area, or that restricts, in any material respect, the right of Fyffes and its Subsidiaries to sell to or purchase from any Person;
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(C)
|
any Contract pursuant to which Fyffes or any of its Subsidiaries has continuing indemnification, guarantee, “earn-out” or other similar contingent payment obligations, in each case that could result in payments in excess of $1,000,000, other than for indemnification and guarantee agreements entered into in the ordinary course of business;
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(D)
|
any Contract with any Governmental Entity other than Contracts involving the sale of products or services;
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(E)
|
any Contract pursuant to which Fyffes or any of its Subsidiaries grants to or receives from any Person any material rights or interests in or to any Intellectual Property (other than Contracts for generally commercially available computer software or grants in the ordinary course of business in a manner consistent with past practice);
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(F)
|
any customer Contract providing for “most favored nation” pricing; or
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(G)
|
any Contract governing indebtedness for borrowed money.
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(ii)
|
To the knowledge of Fyffes, neither Fyffes nor any Subsidiary of Fyffes is in breach of or default under the terms of any Fyffes
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(s)
|
Insurance. Except as would not reasonably be expected to have, individually or in the aggregate, a Fyffes Material Adverse Effect, as of the date hereof, to the knowledge of Fyffes (i) all current, material insurance policies and contracts of Fyffes and its Subsidiaries are in full force and effect and are valid and enforceable and cover against the risks as are customary in all material respects for companies of similar size in the same or similar lines of business and (ii) all premiums due thereunder have been paid. Neither Fyffes nor any of its Subsidiaries has received notice of cancellation or termination with respect to any material third party insurance policies or contracts (other than in connection with normal renewals of any such insurance policies or contracts) where such cancellation or termination would reasonably be expected to have, individually or in the aggregate, a Fyffes Material Adverse Effect.
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(t)
|
Finders or Brokers. Except for Lazard & Co., Limited and J&E Davy, neither Fyffes nor any of its Subsidiaries has employed any investment banker, broker or finder in connection with the transactions contemplated
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(u)
|
Anti-Corruption.
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|
(i)
|
To the knowledge of Fyffes, none of Fyffes or its Subsidiaries nor any of their respective Representatives, has in the past five (5) years, directly or indirectly, made or authorized any offer, gift, payment or promise of, any money or anything else of value, or provided any benefit, (i) to (x) any Government Official or (y) any company, business or other entity Owned or Controlled, directly or indirectly by any person described in the foregoing clause (x), for the purpose of influencing any act or decision of that Person, securing any improper advantage, or inducing that Person to use his or her influence with a Government Official or a Relevant Authority to influence any act or decision of any Government Official or Relevant Authority, whether or not lawful, or (ii) to any officer, employee, agent, or representative of another company or organization, without that company’s or organization’s knowledge and consent, with the intent to influence improperly the recipient’s action with respect to his or her company’s business, or to gain a commercial benefit to the detriment of the recipient’s company or organization, or to induce the recipient to violate a duty of loyalty to his employer. or which would otherwise constitute or have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks or other unlawful or improper means of obtaining business or any improper advantage. To the knowledge of Fyffes, Fyffes and its Subsidiaries are and at all times in the past five years (to the extent applicable) have been in compliance with the Bribery Act and all other Bribery Legislation, including all Laws enacted to implement the Organization For Economic Co–operation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
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(ii)
|
To the knowledge of Fyffes, Fyffes and its Subsidiaries are, and for the past five (5) years have been, (to the extent applicable) in compliance, in all material respects, with the Trade Controls Laws. To the knowledge of Fyffes, none of Fyffes or its Subsidiaries nor any of their officers, directors or agents acting on behalf of such party (x) has been or is designated on the List of Specially Designated Nationals and Blocked Persons maintained by the United States Department of Treasury Office of Foreign Assets
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(v)
|
No Other Representations. Except for the representations and warranties contained in this Clause 6.1 or in any certificates delivered by Fyffes in connection with the Completion pursuant to Condition 4(c), Chiquita acknowledges that neither Fyffes nor any Representative of Fyffes makes any other express or implied representation or warranty with respect to Fyffes or any of its Subsidiaries or with respect to any other information provided or made available to Chiquita in connection with the transactions contemplated by this Agreement, including any information, documents, projections, forecasts or other material made available to Chiquita or to Chiquita’s Representatives in certain “data rooms” or management presentations in expectation of the transactions contemplated by this Agreement.
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6.2
|
Chiquita Representations and Warranties
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|
(a)
|
Qualification, Organisation, Subsidiaries, etc. Each of Chiquita and its Subsidiaries and each of the Chiquita Merger Parties is a legal entity duly organised, validly existing and, where relevant, in good standing under the Laws of its respective jurisdiction of organisation and has all requisite
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(i)
|
Subsidiaries. All the issued and outstanding shares of capital stock of, or other equity interests in, each Significant Subsidiary of Chiquita have been validly issued and are fully paid and nonassessable and are owned, directly or indirectly, by Chiquita free and clear of all Liens, other than Chiquita Permitted Liens. Clause 6.2(a) of the Chiquita Disclosure Schedule contains a correct and complete list of all of Chiquita’s Material Subsidiaries, the ownership interest of Chiquita in each such Subsidiary and the ownership interest of any other Person or Persons in each such Subsidiary.
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(ii)
|
Chiquita Merger Parties.
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(A)
|
Since their respective dates of formation, none of the Chiquita Merger Parties have carried on any business or conducted any operations other than the execution of this Agreement, the performance of their obligations hereunder and thereunder and matters ancillary thereto.
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(B)
|
The authorised share capital of IrHoldco consists of 100,000,000 ordinary shares, par value $0.01 per share, 100,000,000 ordinary shares, par value €0.01 per share and 40,000 deferred ordinary shares, par value €1.00 per share, of which 100 ordinary shares, par value €0.01 per share, are currently issued. All of the issued shares in IrHoldco have been validly issued, are fully paid and nonassessable and are owned directly by MFSD Nominees Limited, free and
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(C)
|
Chiquita has made available to Fyffes, prior to the date of this Agreement, complete and accurate copies of the Memorandum and Articles of Association of IrHoldco (the “IrHoldco Memorandum and Articles of Association”) and the Organisational Documents of each of the other Chiquita Merger Parties (the “Other Chiquita Merger Party Organisational Documents”) as amended to the date hereof. The Chiquita Certificate of Incorporation, the Chiquita Bylaws the IrHoldco Memorandum and Articles of Association and the Other Chiquita Merger Party Organisational Documents are in full force and effect, IrHoldco is not in violation of the IrHoldco Memorandum and Articles of Association and the other Chiquita Merger Parties are not in violation of the Other Chiquita Merger Party Organisational Documents in any material respect.
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(b)
|
Capital Stock.
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|
(i)
|
The authorised capital stock of Chiquita consists of 150,000,000 Chiquita Shares and 20,000,000 shares of preferred stock, par value $.01 per share (“Chiquita Preferred Shares”), of which no Chiquita Preferred Shares have been designated as to series. As of the Capitalisation Date, (A) 46,892,044 Chiquita Shares were issued and outstanding, (B) no Chiquita Shares were held in treasury and (D) no Chiquita Preferred Shares were issued or
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(ii)
|
Clause 6.2(b)(ii) of the Chiquita Disclosure Schedule contains a correct and complete list of each outstanding Chiquita Share Option and Chiquita Share Award under the Chiquita Share Plans as of the Capitalisation Date, including the holder, date of grant, term, number of Chiquita Shares subject thereto (at both target and maximum levels of performance, if applicable), the Chiquita Share Plan under which such Chiquita Share Option or Chiquita Share Award was granted and where applicable, exercise price and vesting schedule, including whether the vesting will be accelerated by the execution of the Agreement or consummation of the transactions contemplated by the Agreement or by change of position following consummation of the transactions contemplated by the Agreement.
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(iii)
|
Except as set forth in Clause 6.2(b)(iii) of the Chiquita Disclosure Schedule, there are no outstanding pre-emptive or other outstanding rights. Except as set forth in sub-clause (i) above, as of the date hereof: (A) Chiquita does not have any shares of capital stock issued or outstanding other than Chiquita Shares that have become outstanding after the Capitalisation Date, but were reserved for issuance as set forth in sub-clause (i) above, and (B) there are no outstanding subscriptions, options, warrants, puts, calls, exchangeable or convertible securities or other similar rights, stock appreciation rights, redemption rights, repurchase rights, or other agreements or commitments relating to the issuance of capital stock to which Chiquita or any of Chiquita’s Subsidiaries is a party obligating Chiquita or any of Chiquita’s Subsidiaries to (I) issue, transfer or sell any shares of capital stock or other equity interests of Chiquita or any Subsidiary of Chiquita or securities convertible into or exchangeable for, or exercisable for, or giving any Person a right to subscribe for or acquire, such shares or equity interests (in each case other than to Chiquita or a wholly owned Subsidiary of Chiquita), and no securities or obligations evidencing such rights are authorised, issued or outstanding; (II) grant, extend or enter into any such subscription, option, warrant, put, call, exchangeable or convertible securities or other similar right, agreement or commitment; (III) redeem or otherwise acquire
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(iv)
|
Neither Chiquita nor any of its Subsidiaries has outstanding bonds, debentures, notes or other similar obligations, the holders of which have the right to vote (or which are convertible into or exercisable for securities having the right to vote, other than Chiquita’s 4.25% Convertible Senior Notes due 2016 (the “Chiquita Convertible Notes”)) with the Chiquita Shareholders on any matter.
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(v)
|
There are no voting trusts or other agreements or understandings to which Chiquita or any of its Subsidiaries is a party with respect to the voting of the capital stock or other equity interest of Chiquita or any of its Subsidiaries.
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(vi)
|
Chiquita has delivered or otherwise made available to Fyffes prior to the date of the Agreement true and complete copies of all Chiquita Share Plans covering the Chiquita Share Options and Chiquita Share Awards outstanding as of the date of the Agreement, the forms of all award agreements evidencing such Chiquita Share Options and, if applicable, Chiquita Share Awards (and any other award agreement to the extent there are variations from the form of agreement, specifically identifying the Person(s) to whom such variant forms apply). Each (A) Chiquita Share Option and Chiquita Share Award was granted in compliance with all applicable Law and all of the terms and conditions of the Chiquita Share Plan pursuant to which it was issued, (B) Chiquita Share Option and, if applicable, Chiquita Share Award has an exercise price per Chiquita Share equal to or greater than the fair market value of a Chiquita Share as determined pursuant to the terms of the applicable Employee Share Plan on the date of such grant, (C) Chiquita Share Option and, if applicable, Chiquita Share Award has a grant date identical to the date on which the Chiquita Board or compensation committee actually awarded such Chiquita Share Option or, if applicable, Chiquita Share Award (D) Chiquita Share Option and Chiquita Share Award qualifies for the Tax and accounting treatment afforded to such award in Chiquita’s Tax Returns and all Chiquita Documents, respectively, and (E) to the extent applicable, Chiquita Share Option and Chiquita Share Award does not trigger any liability for the holder thereof under
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(c)
|
Corporate Authority Relative to this Agreement; No Violation.
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|
(i)
|
Chiquita and each Chiquita Merger Party has all requisite corporate power and authority to enter into this Agreement and, with respect to Chiquita, the Expenses Reimbursement Agreement and, subject (in the case of this Agreement) to receipt of the Chiquita Shareholder Approval (and, in the case of the IrHoldco Distributable Reserves Creation, to approval of the Fyffes Distributable Reserves Resolution by the Fyffes Shareholders and the Chiquita Distributable Reserves Resolution by the Chiquita Shareholders and to receipt of the required approval by the High Court), to consummate the transactions contemplated hereby and thereby, including the Combination and the Merger, as applicable. The execution and delivery of this Agreement and the Expenses Reimbursement Agreement and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorised by the Chiquita Board and (in the case of this Agreement) the board of directors of each Chiquita Merger Party and, except for (A) the Chiquita Shareholder Approval, (B) the filing of the Certificate of Merger with the Department of Treasury of the State of New Jersey and (C) the filing of the required documents in connection with the Scheme with, and to receipt of the required approval of the Scheme by, the High Court, no other corporate proceedings on the part of Chiquita or any Chiquita Merger Party are necessary to authorise the consummation of the transactions contemplated hereby. On or prior to the date hereof, the Chiquita Board has determined that the transactions contemplated by this Agreement are fair to and in the best interests of Chiquita and the Chiquita Shareholders and has adopted a resolution to make the Chiquita Recommendation. This Agreement has been duly and validly executed and delivered by Chiquita and each Chiquita Merger Party and, assuming this Agreement constitutes the valid and binding agreement of Fyffes, constitutes the valid and binding agreement of Chiquita and each Chiquita Merger Party, enforceable against Chiquita and each Chiquita Merger Party in accordance with its terms.
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(ii)
|
Other than in connection with or in compliance with (A) the provisions of the Companies Acts, (B) the Takeover Panel Act and the Takeover Rules, (C) the Securities Act, (D) the Exchange Act,
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|
(iii)
|
The execution and delivery by Chiquita and each Chiquita Merger Party of this Agreement and (in the case of Chiquita) the Expenses Reimbursement Agreement do not, and, except as described in Clause 6.2(c)(ii), the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not (A) result in any violation or breach of, or default or change of control (with or without notice or lapse of time, or both) under, or give rise to a right of, or result in, termination, modification, cancellation or acceleration of any Contract (other than (i) the Chiquita Credit Agreement and (ii) the Chiquita Convertible Notes) binding upon Chiquita or any of Chiquita’s Subsidiaries or result in the creation of any Liens upon any of the properties, rights or assets of Chiquita or any of Chiquita’s Subsidiaries, other than Chiquita Permitted Liens, (B) conflict with or result in any violation of any provision of the Organisational Documents of Chiquita or any of Chiquita’s Subsidiaries or the Chiquita Merger Parties or (C) conflict with or violate any Laws applicable to Chiquita or any of Chiquita’s Subsidiaries or any of their respective properties or assets, other than, (I) in the case of sub-clauses (A), (B) (with respect to Subsidiaries that are not Significant Subsidiaries or Chiquita Merger Parties) and (C), any such violation, conflict, default, termination, cancellation, acceleration, right, loss or Lien that would not reasonably be expected to have, individually or in the aggregate, a Chiquita Material Adverse Effect and (II) as may arise as a result of facts or
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(d)
|
Reports and Financial Statements.
|
|
(i)
|
From December 31, 2012 through the date of this Agreement, Chiquita has filed or furnished all forms, documents and reports (including exhibits and other information incorporated therein) required to be filed or furnished prior to the date hereof by it with the SEC (the “Chiquita SEC Documents”). As of their respective dates, or, if amended, as of the date of the last such amendment, the Chiquita SEC Documents complied in all material respects with the requirements of the Securities Act and the Exchange Act, as the case may be, and the applicable rules and regulations promulgated thereunder, and none of the Chiquita SEC Documents contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made not misleading.
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|
(ii)
|
The consolidated financial statements (including all related notes and schedules) of Chiquita included in the Chiquita SEC Documents when filed complied as to form in all material respects with the applicable accounting requirements and the published rules and regulations of the SEC with respect thereto in effect at the time of such filing and fairly present in all material respects the consolidated financial position of Chiquita and its consolidated Subsidiaries, as at the respective dates thereof, and the consolidated results of their operations and their consolidated cash flows for the respective periods then ended (subject, in the case of the unaudited statements, to normal year-end audit adjustments and to any other adjustments described therein, including the notes thereto) in conformity with US GAAP (except, in the case of the unaudited statements, as permitted by the SEC) applied on a consistent basis during the periods involved (except as may be indicated therein or in the notes thereto).
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(e)
|
Internal Controls and Procedures. Chiquita has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Chiquita’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Chiquita in the reports that it files or furnishes under the
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(f)
|
No Undisclosed Liabilities. Except (i) as disclosed, reflected or reserved against in Chiquita’s consolidated balance sheet (or the notes thereto) as of December 31, 2013 included in the Chiquita SEC Documents filed or furnished on or prior to the date hereof, (ii) for liabilities incurred in the ordinary course of business since December 31, 2013, (iii) as expressly permitted or contemplated by this Agreement and (iv) for liabilities which have been discharged or paid in full in the ordinary course of business, as of the date hereof, neither Chiquita nor any Subsidiary of Chiquita has any liabilities of any nature, whether or not accrued, contingent or otherwise, that would be required by US GAAP to be reflected on a consolidated balance sheet of Chiquita and its consolidated Subsidiaries (or in the notes thereto), other than those which, individually or in the aggregate, would not reasonably be expected to have a Chiquita Material Adverse Effect. Chiquita is not a party to any off balance sheet arrangements.
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(g)
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Compliance with Law; Permits.
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(i)
|
Chiquita and each of Chiquita’s Subsidiaries are in compliance with and are not in default under or in violation of any Laws, applicable to Chiquita, such Subsidiaries or any of their respective properties or assets, except where such non-compliance, default or violation would not reasonably be expected to have, individually or in the aggregate, a Chiquita Material Adverse Effect.
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(ii)
|
Chiquita and Chiquita’s Subsidiaries are in possession of all franchises, grants, authorisations, licenses, permits, easements, variances, exceptions, consents, certificates, approvals and orders of any Relevant Authority necessary for Chiquita and Chiquita’s Subsidiaries to own, lease and operate their properties and assets or to carry on their businesses as they are now being conducted (the “Chiquita Permits”), except where the failure to have any of the Chiquita Permits would not reasonably be expected to have, individually or in the aggregate, a Chiquita Material Adverse Effect. All Chiquita Permits are in full force and effect, except where the failure to be in full force and effect would not reasonably be expected to have, individually or in the aggregate, a Chiquita Material Adverse Effect.
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(iii)
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Notwithstanding anything contained in this Clause 6.2(g), no representation or warranty shall be deemed to be made in this Clause 6.2(g) in respect of the matters referenced in Clause 6.2(d) or 6.2(e), or in respect of environmental, Tax, employee benefits or labour Laws matters.
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(h)
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Environmental Laws and Regulations.
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(i)
|
Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Chiquita Material Adverse Effect, to the knowledge of Chiquita: (i) each of Chiquita and its Subsidiaries (A) is and has been in compliance with applicable Environmental Laws and (B) holds and is and has been in compliance with all Environmental Permits; (ii) all Environmental Permits were validly issued and are in full force and effect, and all applications, notices or other documents have been timely filed to effect timely renewal, issuance or reissuance of such Environmental Permits; and (iii) all Environmental Permits are expected to be issued or reissued on a timely basis on such terms and conditions as are reasonably expected to enable Chiquita and its Subsidiaries to continue to conduct their operations in a manner substantially similar to the manner in which such operations are presently conducted.
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(ii)
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To the knowledge of Chiquita, neither Chiquita nor any of its Subsidiaries has been or is the subject of any Environmental Claim, and no Environmental Claim is pending or, to the knowledge of Chiquita, threatened against Chiquita or any of its Subsidiaries or against any Person whose liability for the Environmental Claim was or may have been retained or assumed by Contract or by operation of Law or pursuant to any Order by Chiquita or any of its Subsidiaries, except for any such Environmental Claims that have not had and would not reasonably be expected to have, individually or in the aggregate, a Chiquita Material Adverse Effect.
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(iii)
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To the knowledge of Chiquita, no Hazardous Materials are present at, on, under or emanating from any properties or facilities currently leased, operated or used or previously owned, leased, operated or used, in circumstances that would reasonably be expected to form the basis for a material Environmental Claim against, or a requirement for investigation or remediation pursuant to applicable Environmental Law by, Chiquita or any of its Subsidiaries.
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(iv)
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To the knowledge of Chiquita, neither Chiquita nor any of its Subsidiaries has Released, disposed of, or arranged to dispose of, any Hazardous Materials in a manner, or to a location, that would reasonably be expected to result in a material Environmental Claim.
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(v)
|
To the knowledge of Chiquita, no material Lien imposed by any Governmental Entity having jurisdiction pursuant to any Environmental Law is currently outstanding as to any assets owned, leased or operated by Chiquita or any of its Subsidiaries.
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(vi)
|
To the knowledge of Chiquita, Chiquita has provided Fyffes with copies of all material written environmental, health or safety assessments, audits, investigations, and sampling, monitoring, remediation reports and similar documents in Chiquita’s possession or, within its control, which were prepared within three years prior to the date hereof or to the knowledge of Chiquita, prior thereto, including any material documents relating to the Release or presence of, or exposure to, any Hazardous Materials.
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(i)
|
Employee Benefit Plans.
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(i)
|
Clause 6.2(i)(i) of the Chiquita Disclosure Schedule sets forth a true and complete list of the material Chiquita Benefit Plans, separately identifying each material Chiquita Benefit Plan that is maintained primarily for the benefit of Chiquita Employees outside of the United States (each, an “International Chiquita Benefit Plan”), it being agreed that individual agreements or arrangements with Chiquita Employees who are not Material Employees of Chiquita shall not be treated as material for purposes of this Clause 6.2(i)(i). True and complete copies of all material Chiquita Benefit Plans listed in Clause 6.2(i)(i) of the Chiquita Disclosure Schedule, and all material related documents, have been provided to Fyffes prior to the date of the Agreement.
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(ii)
|
Except as would not, individually or in the aggregate, reasonably be expected to have a Chiquita Material Adverse Effect, (A) each of the Chiquita Benefit Plans has been operated and administered in accordance with its terms and applicable Laws, including, but not limited to, ERISA, the Code and in each case the regulations thereunder; no Chiquita Benefit Plan is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code; no Chiquita Benefit Plan provides benefits, including death or medical benefits (whether or not insured), with respect to current or former
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(iii)
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Except as would not, individually or in the aggregate, reasonably be expected to have a Chiquita Material Adverse Effect, each of the Chiquita Benefit Plans intended to be “qualified” within the meaning of Section 401(a) of the Code (A) is so qualified, and there are no existing circumstances or any events that have occurred that would reasonably be expected to adversely affect the qualified status of any such plan, and (B) has received a favourable determination letter or opinion letter as to its qualification. Each such favourable determination letter has been provided or made available to Fyffes.
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(iv)
|
Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either alone or in conjunction with any other event) will (A) result in any payment (including severance, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), forgiveness of indebtedness or otherwise) becoming due to any current or former director or any employee of the Chiquita Group, (B) increase any benefits otherwise payable under any Chiquita Benefit Plan or (C) result in any acceleration of the time of payment, funding or vesting of any such benefits.
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(v)
|
No participant or other consent is required to be obtained in order to effect the treatment of Chiquita Share Options and Chiquita Share Awards set forth in Clause 4.5.
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(j)
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Absence of Certain Changes or Events. From December 31, 2013 through the date of this Agreement, other than the transactions contemplated by this Agreement, the businesses of Chiquita and its Subsidiaries have been conducted, in all material respects, in the ordinary course of business. Since December 31, 2013, there has not been any change, circumstance, development, effect, event or occurrence that has had, or would reasonably be expected to have, individually or in the aggregate, a Chiquita Material Adverse Effect. From December 31, 2013 through the date of this Agreement, neither Chiquita nor any of its Subsidiaries has taken any action that would constitute a breach of Clause 5.2(b)(i), (x), (xi), (xii) or (xvii) had such action been taken after the execution of this Agreement.
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(k)
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Investigations; Litigation. (i) There is no investigation or review pending (or, to the knowledge of Chiquita, threatened) by any Relevant Authority with respect to Chiquita or any of Chiquita’s Subsidiaries or any of their respective properties, rights or assets, and (ii) there are no claims, actions, suits or proceedings pending (or, to the knowledge of Chiquita,
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(l)
|
Information Supplied. The information relating to Chiquita, its Subsidiaries and the Chiquita Merger Parties to be contained in the Joint Proxy Statement and the Form S-4 will not, on the date the Joint Proxy Statement (and any amendment or supplement thereto) is first mailed to Chiquita Shareholders and at the time the Form S-4 is declared effective (and any amendment or supplement thereto) or at the time of the Chiquita Shareholders Meeting, contain any untrue statement of any material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, at the time and in light of the circumstances under which they were made, not false or misleading. The Joint Proxy Statement and the Form S-4 (other than the portions thereof relating solely to the Court Meeting or the EGM) will comply in all material respects as to form with the requirements of both the Exchange Act and the Securities Act and the rules and regulations promulgated thereunder. The parts of the Scheme Document for which the Chiquita Directors are responsible under the Takeover Rules and any related filings for which the Chiquita Directors are responsible under the Takeover Rules will comply in all material respects as to form with the requirements of the Takeover Rules and the Act. Notwithstanding the foregoing provisions of this Clause 6.2(l), no representation or warranty is made by Chiquita with respect to information or statements made or incorporated by reference in the Joint Proxy Statement and the Form S-4 which were not supplied by or on behalf of Chiquita.
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(m)
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Tax Matters.
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(i)
|
all Tax Returns that are required to be filed by or with respect to Chiquita or any of its Subsidiaries have been timely filed (taking into account any extension of time within which to file), and all such Tax Returns are true, correct and complete;
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(ii)
|
Chiquita and its Subsidiaries have paid all Taxes required to be paid by any of them, including any Taxes required to be withheld from amounts owing to any employee, creditor, or third party, except with respect to matters for which adequate reserves have
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(iii)
|
there is no audit, examination, deficiency, refund litigation, proposed adjustment, or matter in controversy with respect to any Taxes or Tax Return of Chiquita or any of its Subsidiaries;
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(iv)
|
the Tax Returns of Chiquita and each of its Subsidiaries have been examined by the applicable Tax Authority (or the applicable statutes of limitations for the assessment of income Taxes for such periods have expired) for all periods through and including 2012, and no deficiencies were asserted as a result of such examinations which have not been resolved and fully paid or accrued as a liability on the most recent Chiquita annual financial statement;
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(v)
|
neither Chiquita nor any of its Subsidiaries has waived any statute of limitations with respect to Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency;
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(vi)
|
all Taxes due and payable by Chiquita or any of its Subsidiaries have been adequately provided for, in accordance with US GAAP, in the financial statements of Chiquita and its Subsidiaries for all periods ending on or before the date hereof;
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(vii)
|
neither Chiquita nor any of its Subsidiaries has constituted a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (or any similar provision of state, local, or non-U.S. law) in the two years prior to the date of this Agreement;
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|
(viii)
|
none of Chiquita or any of its Subsidiaries has any liability for Taxes of any Person (other than Chiquita or any of its Subsidiaries) under U.S. Treasury Regulation § 1.1502-6 (or any similar provision of state, local, or non-U.S. law), as transferee or successor, by contract or otherwise;
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(ix)
|
there are no liens for Taxes upon any property or assets of Chiquita or any of its Subsidiaries, except for Chiquita Permitted Liens; and
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(x)
|
no private letter rulings, technical advice memoranda, or similar agreements or rulings have been entered into or issued by any Tax
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(n)
|
Labour Matters.
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(i)
|
Except as set forth in Clause 6.2(n)(i) of the Chiquita Disclosure Schedule, as of the date hereof, no member of the Chiquita Group is a party to, or bound by, any collective bargaining agreement, contract or other agreement or binding understanding with a labour union or labour organisation. No member of the Chiquita Group is subject to a labour dispute, strike or work stoppage except as would not have, individually or in the aggregate, a Chiquita Material Adverse Effect. To the knowledge of Chiquita, there are no organisational efforts with respect to the formation of a collective bargaining unit presently being made or threatened involving employees of the Chiquita Group, except for those the formation of which would not have, individually or in the aggregate, a Chiquita Material Adverse Effect.
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(ii)
|
Except as set forth in Clause 6.2(n)(ii) of the Chiquita Disclosure Schedule, the transactions contemplated by this Agreement will not require the consent of, or advance notification to, any works councils, unions or similar labour organisations with respect to employees of the Chiquita Group, other than any such consents the failure of which to obtain or advance notifications the failure of which to provide as would not reasonably be expected to have, individually or in the aggregate, a Chiquita Material Adverse Effect.
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(o)
|
Intellectual Property. Except as would not reasonably be expected to have, individually or in the aggregate, a Chiquita Material Adverse Effect, either Chiquita or a Subsidiary of Chiquita owns, or is licensed or otherwise possesses legally enforceable rights to use, all Intellectual Property used in their respective businesses as currently conducted. There are no pending or, to the knowledge of Chiquita, threatened written claims by any person alleging infringement by Chiquita or its Subsidiaries for their use of any Intellectual Property in their respective businesses as currently conducted that would reasonably be expected to have, individually or in the aggregate, a Chiquita Material Adverse Effect. Except as would not reasonably be expected to have, individually or in the aggregate, a Chiquita Material Adverse Effect, the conduct of the businesses of Chiquita and its Subsidiaries does not infringe upon any Intellectual Property rights or any other proprietary right of any person. As of the date
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(p)
|
Real Property.
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(i)
|
With respect to the real property owned by Chiquita or any Subsidiary as of the date hereof (such property collectively, the “Chiquita Owned Real Property”), except as would not reasonably be expected to have, individually or in the aggregate, a Chiquita Material Adverse Effect, either Chiquita or a Subsidiary of Chiquita has good and marketable fee title to such Chiquita Owned Real Property, free and clear of all Liens, other than any such Lien (A) for Taxes or governmental assessments, charges or claims of payment not yet due and payable, being contested in good faith or for which adequate accruals or reserves have been established in accordance with US GAAP, (B) which is a carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other similar lien arising in the ordinary course of business if the underlying obligations (1) are not yet due and payable or (2) are being contested in good faith by appropriate proceedings, (C) Liens securing property level indebtedness which is disclosed on the most recent consolidated balance sheet of Chiquita or notes thereto or securing liabilities reflected on such balance sheet, (D) Liens arising under equipment leases with third parties entered into in the ordinary course of business or (E) which are non-monetary, incurred in the ordinary course of business and would not reasonably be expected to materially impair the continued use of the applicable property for the purposes for which the property is currently being used (any such Lien described in any of sub-clauses (A) through (E), a “Chiquita Permitted Lien”). As of the date hereof, neither Chiquita nor any of its Subsidiaries has received notice of any pending, and to the knowledge of Chiquita there is no threatened, condemnation proceeding with respect to any Chiquita Owned Real Property, except proceedings which
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(ii)
|
The parcels constituting the Chiquita Owned Real Property are assessed separately from all other property not constituting Chiquita Owned Real Property.
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(iii)
|
Except as would not reasonably be expected to have, individually or in the aggregate, a Chiquita Material Adverse Effect, (A) each lease, sublease and other agreement (“Chiquita Lease”) under which Chiquita or any of its Subsidiaries uses or occupies or has the right to use or occupy any real property at which the operations of Chiquita and its Subsidiaries are conducted as of the date hereof (the “Chiquita Leased Real Property”), is valid, binding and in full force and effect, and (B) there is no material default under any Chiquita Lease and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by Chiquita or any of its Subsidiaries or, to the knowledge of Chiquita, the landlord thereunder . Except as would not reasonably be expected to have, individually or in the aggregate, a Chiquita Material Adverse Effect, Chiquita and each of its Subsidiaries has a good and valid leasehold interest, subject to the terms of any lease, sublease or other agreement applicable thereto, in each parcel of Chiquita Leased Real Property, free and clear of all Liens, except for Chiquita Permitted Liens. As of the date hereof, neither Chiquita nor any of its Subsidiaries (1) has received written notice from any lessor under any Chiquita Lease that such lessor intends to terminate such Chiquita Lease, or (2) has received notice of any pending, and, to the knowledge of Chiquita, there is no threatened, condemnation proceeding with respect to any Chiquita Leased Real Property, except such proceeding which would not reasonably be expected to have, individually or in the aggregate, a Chiquita Material Adverse Effect.
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(iv)
|
True, correct, and complete copies of all material leases, subleases, or other agreement under which Chiquita or any of its Subsidiaries uses or occupies or has the right to use or occupy any Chiquita Leased Real Property have been made available to Fyffes.
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(v)
|
Chiquita Owned Real Property and Chiquita Leased Real Property includes all of the real property necessary for the conduct of the business of Chiquita and its Subsidiaries as currently conducted,
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(vi)
|
Except as would not reasonably be expected to have, individually or in the aggregate, a material effect on the operations of Chiquita, the Chiquita Owned Real Property and Chiquita Leased Real Property (A) are, in each case, in working order sufficient for the conduct of the business of Chiquita and its Subsidiaries as currently conducted, (B) are, in each case, supplied with utilities and other services adequate for the operation of said Chiquita Owned Real Property or Chiquita Leased Real Property, (C) has, in each case, unlimited access to and from publicly dedicated streets, and (D) are not subject to any outstanding options to purchase, rights of first refusal or similar rights in favor of any Person.
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(vii)
|
Neither Chiquita nor any of its Subsidiaries has granted to any Person (other than Chiquita or its Subsidiaries) the right of use or occupancy of any portion of any material Chiquita Owned Real Property or material Chiquita Leased Real Property, other than as set forth on Clause 6.2(p)(vii) of the Chiquita Disclosure Schedule, which use or occupancy does not interfere in any material respect with the ordinary conduct of business of Chiquita or its Subsidiaries at the Chiquita Owned Real property affected thereby.
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(viii)
|
Clause 6.2(p)(viii) of the Chiquita Disclosure Schedule contains a true and complete list of all material Chiquita Owned Real Property and material Chiquita Leased Real Property (and (A) for each material Chiquita Owned Real Property, the location, street address, and name of the fee owner, and (B) for each material Chiquita Leased Real Property, the location, street address, and the names of the parties thereto).
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(q)
|
Opinion of Financial Advisor. The Chiquita Board has received the opinion of Goldman, Sachs & Co., dated the date of this Agreement, to the effect that, as of such date and based upon and subject to the assumptions, qualifications and limitations set forth therein, the Merger Consideration to be paid to the Chiquita Shareholders (other than Fyffes and its Affiliates) pursuant to this Agreement is fair, from a financial point of view, to such holders. The Chiquita Board has also received the opinion of Wells Fargo Securities, LLC, as of the date of the meeting of the Chiquita Board at which the Chiquita Board approved this Agreement, to the effect that, as of such date and subject to the assumptions, qualifications, limitations and other matters considered in connection with the preparation of such opinion, the Merger Consideration to be received by the Chiquita Shareholders (other than Fyffes and its Affiliates) pursuant to the Merger is fair, from a financial point of view, to such holders.
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(r)
|
Required Vote of Chiquita Shareholders. The Chiquita Shareholder Approval is the only vote of holders of securities of Chiquita which is required to consummate the transactions contemplated hereby (other than, in the case of the IrHoldco Distributable Reserves Creation, the approval of the Chiquita Distributable Reserves Resolution by the Chiquita Shareholders).
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(s)
|
Material Contracts.
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|
(i)
|
Clause 6.2(s)(i) of the Chiquita Disclosure Schedule identifies each Chiquita Material Contract that is in effect as of the date hereof. True, correct and complete copies of each have been made available to Fyffes other than to the extent that confidentiality restrictions, Laws (in particular Antitrust Laws) or other obligations applicable to Chiquita restrict the ability of Chiquita to provide copies of Chiquita Material Contracts to Fyffes. For purposes of this Agreement, “Chiquita Material Contracts” mean each of the following contracts to which Chiquita or any of its Subsidiaries is a party or to which any of them is bound:
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(A)
|
any Contract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K);
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(B)
|
any Contract that, in any material respect, limits the ability of Chiquita or any of its Subsidiaries to compete in any line of business or with any Person or in any geographic area, or that restricts, in any material respect, the right of Chiquita and its Subsidiaries to sell to or purchase from any Person;
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(C)
|
any Contract pursuant to which Chiquita or any of its Subsidiaries has continuing indemnification, guarantee, “earn-out” or other similar contingent payment obligations, in each case that could result in payments in excess of $1,000,000, other than for indemnification and guarantee agreements entered into in the ordinary course of business;
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(D)
|
any Contract with any Governmental Entity other than Contracts involving the sale of products or services;
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(E)
|
any Contract pursuant to which Chiquita or any of its Subsidiaries grants to or receives from any Person any material rights or interests in or to any Intellectual Property (other than Contracts for generally commercially available
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|
(F)
|
any customer Contract providing for “most favored nation” pricing; or
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(G)
|
any Contract governing indebtedness for borrowed money.
|
|
(ii)
|
To the knowledge of Chiquita, neither Chiquita nor any Subsidiary of Chiquita is in breach of or default under the terms of any Chiquita Material Contract where such breach or default would reasonably be expected to have, individually or in the aggregate, a Chiquita Material Adverse Effect. To the knowledge of Chiquita, as of the date hereof, no other party to any Chiquita Material Contract is in breach of or default under the terms of any Chiquita Material Contract where such breach or default would reasonably be expected to have, individually or in the aggregate, a Chiquita Material Adverse Effect. No agreement governing joint ventures of Chiquita or any of its Subsidiaries contains terms which would reasonably be expected to impair in any material respect (x) the ability of Chiquita and its Affiliates to conduct their business as currently conducted or (y) the ability of the parties to realize the anticipated benefits of the transactions contemplated hereby. Except as would not reasonably be expected to have, individually or in the aggregate, a Chiquita Material Adverse Effect, each Chiquita Material Contract is a valid and binding obligation of Chiquita or the Subsidiary of Chiquita which is party thereto and, to the knowledge of Chiquita, of each other party thereto, and is in full force and effect, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, examinership, reorganisation, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
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(t)
|
Insurance. Except as would not reasonably be expected to have, individually or in the aggregate, a Chiquita Material Adverse Effect, as of the date hereof, to the knowledge of Chiquita (i) all current, material insurance policies and contracts of Chiquita and its Subsidiaries are in full force and effect and are valid and enforceable and cover against the risks as are customary in all material respects for companies of similar size in the same or similar lines of business and (ii) all premiums due thereunder
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(u)
|
Finders or Brokers. Except for Goldman, Sachs & Co. and Wells Fargo Securities, LLC, neither Chiquita nor any of its Subsidiaries has employed any investment banker, broker or finder in connection with the transactions contemplated by this Agreement who might be entitled to any fee or any commission in connection with or upon consummation of the Combination or the Merger.
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(v)
|
Anti-Corruption.
|
|
(i)
|
To the knowledge of Chiquita, none of Chiquita or its Subsidiaries nor any of their respective Representatives, has in the past five (5) years, directly or indirectly, made or authorized any offer, gift, payment or promise of, any money or anything else of value, or provided any benefit, (i) to (x) any Government Official or (y) any company, business or other entity Owned or Controlled, directly or indirectly by any person described in the foregoing clause (x), for the purpose of influencing any act or decision of that Person, securing any improper advantage, or inducing that Person to use his or her influence with a Government Official or a Relevant Authority to influence any act or decision of any Government Official or Relevant Authority, whether or not lawful, or (ii) to any officer, employee, agent, or representative of another company or organization, without that company’s or organization’s knowledge and consent, with the intent to influence improperly the recipient’s action with respect to his or her company’s business, or to gain a commercial benefit to the detriment of the recipient’s company or organization, or to induce the recipient to violate a duty of loyalty to his employer. or which would otherwise constitute or have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks or other unlawful or improper means of obtaining business or any improper advantage. To the knowledge of Chiquita, Chiquita and its Subsidiaries are and at all times in the past five years (to the extent applicable) have been in compliance with the Bribery Act and all other Bribery Legislation, including all Laws enacted to implement the Organization For Economic Co–operation and Development Convention on
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|
(ii)
|
To the knowledge of Chiquita, Chiquita and its Subsidiaries are, and for the past five (5) years have been, (to the extent applicable) in compliance, in all material respects, with the Trade Controls Laws. To the knowledge of Chiquita, none of Chiquita or its Subsidiaries nor any of their officers, directors or agents acting on behalf of such party (x) has been or is designated on the List of Specially Designated Nationals and Blocked Persons maintained by OFAC, or similar lists maintained by the U.S. government, United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority, or is Owned or Controlled by any entity or person so listed or (y) has participated in the past five (5) years in any transaction or other activities involving such designated person or entity, or any country that is or was during that period subject to economic sanctions administered by OFAC, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority, except for such transactions or activities as were authorized under applicable Law.
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(w)
|
No Other Representations. Except for the representations and warranties contained in this Clause 6.2 or in any certificates delivered by Chiquita in connection with the Completion pursuant to Condition 5(c), Fyffes acknowledges that neither Chiquita nor any Representative of Chiquita makes any other express or implied representation or warranty with respect to Chiquita or any of its Subsidiaries or with respect to any other information provided or made available to Fyffes in connection with the transactions contemplated by this Agreement, including any information, documents, projections, forecasts or other material made available to Fyffes or to Fyffes’ Representatives in certain “data rooms” or management presentations in expectation of the transactions contemplated by this Agreement.
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7.
|
ADDITIONAL AGREEMENTS
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7.1
|
Investigation
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|
(a)
|
Each of Fyffes and Chiquita shall afford the other Party and such other Party’s Representatives reasonable access during normal business hours, throughout the period from the release of the Rule 2.5 Announcement until the earlier of the Effective Time and the date, if any, on which the Agreement is terminated pursuant to Clause 9, to its and its Subsidiaries’
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(b)
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The Parties hereby agree that all information provided to them or their respective Representatives in connection with this Agreement and the consummation of the transactions contemplated hereby shall be deemed to be Evaluation Materials, as such term is used in, and shall be treated in accordance with, the Confidentiality Agreement.
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7.2
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Consents and Regulatory Approvals
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(a)
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The terms of the Combination at the date of publication of the Scheme Document shall be set out in the Rule 2.5 Announcement and the Scheme Document, to the extent required by applicable Law.
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(b)
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Subject to the terms and conditions hereof, the Parties each agree to use all reasonable endeavours to achieve satisfaction of the Conditions as promptly as reasonably practicable following the publication of the Scheme Document and in any event no later than the End Date.
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(c)
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Subject to the terms and conditions hereof, Fyffes, Chiquita and each Chiquita Merger Party shall use all reasonable endeavours to:
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(i)
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take, or cause to be taken, all actions, and do, or cause to be done, and to assist and cooperate with the other Party in doing, all things necessary, proper or advisable to consummate and make effective
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(ii)
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as promptly as reasonably practicable, obtain from, make with or provide to any Relevant Authority any Clearances required to be obtained as described in Condition 3 of Appendix A, made or provided by Fyffes or Chiquita or any of their respective Subsidiaries in connection with the consummation of the transactions contemplated hereby (including the Combination and the Merger);
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(iii)
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as promptly as reasonably practicable, make all filings, and thereafter make any other required or appropriate submissions, that are required or reasonably necessary to consummate the transactions contemplated by this Agreement (including the Combination and the Merger), including (A) under the HSR Act (it being agreed that the Parties shall make their respective filings under the HSR Act no later than 15 Business Days after the date hereof), (B) under the EC Merger Regulation, (C) under any other Antitrust Laws or foreign investment Laws, (D) under the Takeover Rules and the Act or (E) as required by the High Court; and
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(iv)
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as promptly as reasonably practicable, take reasonable actions to obtain from, make with or provide to any third party any Clearances required to be obtained, made or provided by Fyffes or Chiquita or any of their respective Subsidiaries in connection with the consummation of the transactions contemplated hereby (including the Combination and the Merger);
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(d)
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Subject to the terms and conditions hereof, including Clause 7.2(h), each of the Parties agrees, and shall cause each of their respective Subsidiaries, to cooperate and to use all reasonable endeavours to (i) obtain any Clearances required in connection with the consummation of the
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(e)
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Subject to the proviso in Clause 7.2(d), Chiquita and Fyffes shall (i) promptly advise each other of (and Chiquita or Fyffes shall so advise with respect to communications received by any Subsidiary of Chiquita or Fyffes, as the case may be) any written or oral communication from any Relevant Authority or third party whose Clearance is required or reasonably necessary in connection with the consummation of the transactions contemplated by this Agreement (including the Combination and the Merger); (ii) not participate in any meeting or discussion with any Relevant Authority in respect of any filing, investigation, or enquiry concerning this Agreement or the transactions contemplated by this Agreement unless it consults with the other Party in advance, and, unless prohibited by such Relevant Authority, gives the other Party the opportunity to attend; and (iii) promptly furnish the other Party with copies of all correspondence, filings, and written communications between
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(f)
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Each Party will provide as promptly as practicable such information and documentary material as may be requested by a Relevant Authority following any such filing or notification and shall negotiate with any Relevant Authority in relation to any undertakings, orders, agreements or commitments which any such Relevant Authority requires to facilitate the Combination and the Merger.
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(g)
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In the event that the latest date on which the High Court and/or the Panel would permit Completion to occur is prior to the date that is one year after the date of this Agreement, the Parties shall use all reasonable endeavours to obtain consent of the High Court and/or the Panel, as applicable, to an extension of such latest date (but not beyond the date that is one year after the date of this Agreement). If (i) the High Court, the Takeover Rules and/or the Panel require the lapsing of the Scheme prior to the date that is one year after the date of this Agreement, (ii) Condition 1 fails to be satisfied or (iii) the Scheme lapses pursuant to paragraph 7 of Annex I to the Rule 2.5 Announcement as a result of the Scheme failing to have become effective on or prior to the date that is one year after the date of this Agreement, the Parties shall (unless and until this Agreement is
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(h)
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In furtherance and not in limitation of the other covenants contained in this Clause 7.2, Chiquita and Fyffes agree to take, or cause to be taken (including by its Subsidiaries), any and all steps and to make, or cause to be made (including by its Subsidiaries), any and all undertakings necessary to resolve such objections, if any, that a Relevant Authority may assert under any Antitrust Law with respect to the Combination or the Merger, and to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Relevant Authority with respect to the Combination or the Merger, in each case, so as to enable the Completion to occur as promptly as practicable and in any event no later than the End Date, in each case as may be required in order to obtain all Clearances required directly or indirectly under any Antitrust Law or to avoid the commencement of any action to prohibit the Combination or the Merger under any Antitrust Law, or to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any action or proceeding seeking to prohibit the Combination or the Merger or delay Completion beyond the End Date. To assist the Parties in complying with their respective obligations set forth in this Clause 7.2, each of Chiquita and Fyffes shall, and shall cause its Subsidiaries to, enter into one or more agreements required by the Relevant Authority to be entered into by any of them prior to the Completion with respect to any transaction to divest, hold separate or otherwise take any action that limits Chiquita’s, Fyffes’, its Subsidiaries’, or, following consummation of the Combination and the Merger, IrHoldco’s, conduct of business or freedom of action, ownership or control with respect to, or their ability to retain or hold, directly or indirectly, any of the businesses, assets, equity interests or properties of Chiquita, Fyffes or any of its Subsidiaries or any equity or other interest in any joint venture held by Chiquita, Fyffes or any of its Subsidiaries (each, a “Divestiture Action”); provided, however, that the consummation of the transactions provided for in any such agreement for a Divestiture Action shall be conditioned upon the Completion. Notwithstanding anything in this Agreement to the contrary, nothing in this Clause 7.2 shall require, or be deemed to require, Chiquita or Fyffes (or any of their respective Subsidiaries) to (and Chiquita and Fyffes shall not, and shall cause their respective Subsidiaries not to, without the prior written consent of the other Party) take any action, agree to take any action or consent to the taking of any action (including with respect to selling,
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7.3
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Directors’ and Officers’ Indemnification and Insurance
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(a)
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IrHoldco agrees that all rights to indemnification, advancement of expenses or exculpation (including all limitations on personal liability) existing as of the date of this Agreement in favour of each present and former director, officer or employee of Fyffes or any of its Subsidiaries provided for in their respective Organisational Documents or in any agreement to which Fyffes or any of its Subsidiaries is a party in respect of actions or omissions occurring at or prior to the Effective Time (including actions or omissions occurring at or prior to the Effective Time arising out of the transactions contemplated by this Agreement) shall survive the consummation of the Scheme and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Effective Time, IrHoldco shall maintain in effect the provisions for indemnification, advancement of expenses or exculpation in the Organisational Documents of Fyffes and its Subsidiaries or in any agreement to which Fyffes or any of its Subsidiaries is a party and shall not amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of any individuals who at any time prior to the Effective Time were directors, officers or employees of Fyffes or any of its Subsidiaries in respect of actions or omissions occurring at or prior to the Effective Time (including actions or omissions occurring at or prior to the Effective Time arising out of the transactions contemplated by this Agreement); provided, however, that in the event any claim, action, suit proceeding or investigation is pending, asserted or made either prior to the Effective Time or within such six year period, all rights to indemnification, advancement of expenses or exculpation required to be continued pursuant to this Clause 7.3(a) in respect thereof shall continue until disposition thereof. From and after the Effective Time, IrHoldco shall assume, be jointly and severally liable for, and honour and guaranty, and shall cause Fyffes and its Subsidiaries to honour, in accordance with their respective terms, each of the covenants contained in this Clause 7.3 without limit as to time.
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(b)
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IrHoldco agrees that all rights to indemnification, advancement of expenses or exculpation (including all limitations on personal liability) existing as of the date of this Agreement in favour of each present and former director, officer or employee of Chiquita or any of its Subsidiaries provided for in their respective Organisational Documents or in any agreement to which Chiquita or any of its Subsidiaries is a party in respect of actions or omissions occurring at or prior to the Effective Time (including actions or omissions occurring at or prior to the Effective Time arising out of the transactions contemplated by this Agreement) shall survive the consummation of the Scheme and shall continue in full force and effect in accordance with their terms. For a period of six (6) years after the Merger Effective Time, IrHoldco shall maintain in effect the provisions for indemnification, advancement of expenses or exculpation in the Organisational Documents of Chiquita and its Subsidiaries or in any agreement to which Chiquita or any of its Subsidiaries is a party and shall not amend, repeal or otherwise modify such provisions in any manner that would adversely affect the rights thereunder of any individuals who at any time prior to the Merger Effective Time were directors, officers or employees of Chiquita or any of its Subsidiaries in respect of actions or omissions occurring at or prior to the Merger Effective Time (including actions or omissions occurring at or prior to the Merger Effective Time arising out of the transactions contemplated by this Agreement); provided, however, that in the event any claim, action, suit, proceeding or investigation is pending, asserted or made either prior to the Merger Effective Time or within such six year period, all rights to indemnification, advancement of expenses or exculpation required to be continued pursuant to this Clause 7.3(b) in respect thereof shall continue until disposition thereof. From and after the Effective Time, IrHoldco shall assume, be jointly and severally liable for, and honour and guaranty, and shall cause Chiquita and its Subsidiaries to honour, in accordance with their respective terms, each of the covenants contained in this Clause 7.3 without limit as to time.
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(c)
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At and after the Effective Time, each of IrHoldco and Fyffes shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former director, officer or employee of Fyffes or any of its Subsidiaries and each person who served as a director, officer, member, trustee or fiduciary of another company, joint venture, trust or other enterprise if such service was at the request or for the benefit of Fyffes or any of its Subsidiaries (each, together with his or her respective heirs and representatives, a “Fyffes Indemnified Party” and, collectively, the “Fyffes Indemnified Parties”) against all costs and expenses (including advancing attorneys’ fees and expenses in advance of
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(d)
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At and after the Merger Effective Time, each of IrHoldco and Chiquita shall, to the fullest extent permitted under applicable Law, indemnify and hold harmless each present and former director, officer or employee of Chiquita or any of its Subsidiaries and each person who served as a director, officer, member, trustee or fiduciary of another company, joint venture, trust or other enterprise if such service was at the request or for the benefit of Chiquita or any of its Subsidiaries (each, together with his or her respective heirs and representatives, a “Chiquita Indemnified Party” and, collectively, the “Chiquita Indemnified Parties” and, collectively with the Fyffes Indemnified Parties, the “Indemnified Parties”) against all costs and expenses (including advancing attorneys’ fees and expenses in advance of the final disposition of any actual or threatened claim, suit, proceeding or investigation to each Chiquita Indemnified Party to the fullest extent permitted by Law), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any actual or threatened claim, action, suit, proceeding or investigation (whether arising before, at or after the Merger Effective Time), whether civil, criminal, administrative or investigative, arising out of or pertaining to any action or omission in such person’s capacity as a director, officer or employee of Chiquita or any of its Subsidiaries or as a director, officer, member, trustee or fiduciary of another company, joint venture, trust or other enterprise if such service was at the request or for the benefit of Chiquita or any of its Subsidiaries, in each case occurring or alleged to have occurred at or before the Merger Effective Time (including actions or omissions occurring at or prior to the Merger Effective Time arising out of the transactions contemplated by this Agreement).
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(e)
|
For a period of six (6) years from the Effective Time, IrHoldco shall cause to be maintained in effect (i) the coverage provided by the policies of directors’ and officers’ liability insurance and fiduciary liability insurance in effect as of the Completion Date maintained by Fyffes and its Subsidiaries with respect to matters arising on or before the Effective Time (provided that IrHoldco may substitute therefor policies with a carrier with comparable credit ratings to the existing carrier of at least the same coverage and amounts containing terms and conditions that are no less favourable to the insured) or (ii) a “tail” policy (which Fyffes may purchase at its option prior to the Effective Time, and, in such case, IrHoldco shall cause such policy to be in full force and effect, and shall cause all obligations thereunder to be honoured by Fyffes) under Fyffes’ existing directors’ and officers’ insurance policy that covers those persons who are currently covered by Fyffes’ directors’ and officers’ insurance policy in effect as of the date hereof for actions and omissions occurring at or prior to the Effective Time, is from a carrier with comparable credit ratings to Fyffes’ existing directors’ and officers’ insurance policy carrier and contains terms and conditions that are no less favourable to the insured than those of Fyffes’ directors’ and officers’ insurance policy in effect as of the date hereof; provided, however, that, after the Effective Time, IrHoldco shall not be required to pay annual premiums in excess of 300% of the last annual premium paid by Fyffes prior to the date hereof in respect of the coverages required to be obtained pursuant hereto, but in such case shall purchase as much coverage as reasonably practicable for such amount.
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(f)
|
For a period of six (6) years from the Merger Effective Time, IrHoldco shall cause to be maintained in effect (i) the coverage provided by the policies of directors’ and officers’ liability insurance and fiduciary liability insurance in effect as of the Completion Date maintained by Chiquita and its Subsidiaries with respect to matters arising on or before the Merger Effective Time (provided that IrHoldco may substitute therefor policies with a carrier with comparable credit ratings to the existing carrier of at least the same coverage and amounts containing terms and conditions that are no less favourable to the insured) or (ii) a “tail” policy (which Chiquita may purchase at its option prior to the Merger Effective Time, and, in such case, IrHoldco shall cause such policy to be in full force and effect, and shall cause all obligations thereunder to be honoured by Chiquita) under Chiquita’s existing directors’ and officers’ insurance policy that covers those persons who are currently covered by Chiquita’s directors’ and officers’ insurance policy in effect as of the date hereof for actions and omissions occurring at or prior to the Merger Effective Time, is from a carrier with comparable credit ratings to Chiquita’s existing directors’ and
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(g)
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The rights of each Indemnified Party under this Clause 7.3 shall be in addition to, and not in limitation of, any other rights such Indemnified Party may have under the Organisational Documents of Fyffes or any of its Subsidiaries or the Organisational Documents of Chiquita or any of its Subsidiaries, as applicable, any agreement, any insurance policy, the Act, the NJBCA (or any other applicable Law) or otherwise. The provisions of this Clause 7.3 shall survive the consummation of the Combination and the Merger and shall not be terminated or modified in such a manner as to adversely affect any Indemnified Person without the written consent of such affected Indemnified Person (it being expressly agreed that the Indemnified Parties shall be third party beneficiaries of this Clause 7.3 and shall be entitled to enforce the covenants contained in this Clause 7.3). IrHoldco shall pay all reasonable expenses, including attorneys’ fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided for in this Clause 7.3.
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(h)
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In the event IrHoldco or any of its respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers or conveys more than 50% of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of IrHoldco assume the obligations set forth in this Clause 7.3.
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7.4
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Employment and Benefit Matters
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(a)
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For a period of one (1) year following the Effective Time, IrHoldco shall provide, or shall cause to be provided, to each Fyffes Employee no less favorable terms and conditions of employment (excluding any severance benefits) than such Fyffes Employee received immediately before the Effective Time. Further, and notwithstanding any other provision of this Agreement to the contrary, IrHoldco shall provide any Fyffes Employee whose employment terminates during the one-year period following the Effective Time with severance benefits (net of any statutorily required severance) that are no less favourable than the severance benefits which
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(b)
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For a period of one (1) year following the Effective Time, IrHoldco shall provide, or shall cause to be provided, to each Chiquita Employee no less favorable terms and conditions of employment (excluding any severance benefits) than such Chiquita Employee received immediately before the Effective Time. Further, and notwithstanding any other provision of this Agreement to the contrary, IrHoldco shall provide any Chiquita Employee whose employment terminates during the one-year period following the Effective Time with severance benefits (net of any statutorily required severance) that are no less favourable than the severance benefits which would have applied to such Chiquita Employee (if any) immediately prior to the Effective Time. Notwithstanding any other provision of this Agreement, IrHoldco shall observe the provisions and obligations of any extant collective bargaining agreements until their expiration, modification or termination in accordance with their terms and applicable Law, that govern the employment of any Chiquita Employees.
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(c)
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For purposes of vesting, eligibility to participate and level of benefits under the employee benefit plans of IrHoldco providing benefits to any Fyffes Employees or Chiquita Employees after the Effective Time (the “New Plans”),
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(i)
|
each Fyffes Employee shall be credited with his or her years of service with the Fyffes Group and its predecessors before the Effective Time, to the same extent as such Fyffes Employee was entitled, before the Effective Time, to credit for such service under any similar Fyffes Benefit Plan in which such Fyffes Employee participated, or was eligible to participate, immediately prior to the Effective Time; provided that the foregoing shall not apply with respect to benefit accrual under any defined benefit pension plan or to the extent that its application would result in a duplication of benefits with respect to the same period of service; and
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(ii)
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each Chiquita Employee shall be credited with his or her years of service with the Chiquita Group and its predecessors before the Effective Time, to the same extent as such Chiquita Employee was entitled, before the Effective Time, to credit for such service under any similar Chiquita Benefit Plan in which such Chiquita
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(d)
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IrHoldco hereby acknowledges that a “change of control” (or similar phrase) within the meaning of the Fyffes Option Scheme will occur at or prior to the Effective Time.
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(e)
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Subject to the performance by the Parties of their obligations under Clauses 4.2 and 5.1(b)(iii) hereof, Chiquita hereby acknowledges that a “change of control” (or similar phrase) within the meaning of those Chiquita Benefit Plans set forth in Clause 7.4(e) of the Chiquita Disclosure Schedule will not be intended to occur at or prior to the Effective Time, as applicable. Subject to the performance by the Parties of their obligations under Clauses 4.2 and 5.1(b)(iii) hereof, prior to the Effective Time, the IrHoldco Board and each committee of the IrHoldco Board or any committee responsible for the administration of any Chiquita Benefit Plan shall adopt resolutions concluding that the consummation of the transactions contemplated by this Agreement shall not constitute a “change of control” as such term is used in each such Chiquita Benefit Plan.
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(f)
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IrHoldco will cooperate with Fyffes in respect of consultation obligations and similar notice and bargaining obligations owed to any employees or consultants of Fyffes or any Subsidiary of Fyffes in accordance with all applicable Laws and bargaining agreements, if any.
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(g)
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IrHoldco will cooperate with Chiquita in respect of consultation obligations and similar notice and bargaining obligations owed to any employees or consultants of Chiquita or any Subsidiary of Chiquita in accordance with all applicable Laws and bargaining agreements, if any.
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(h)
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Without limiting the provisions of Clause 7.4(a) hereof, with respect to the fiscal year of Fyffes in which the Effective Time occurs, Fyffes shall have the right to:
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(i)
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in the event that the Effective Time occurs prior to December 31, 2014, Fyffes shall be entitled to pay on or about the Effective Time, the Fyffes 2014 annual bonuses and Fyffes short term incentive plan payments based on the target level of performance to each Fyffes 2014 annual bonus plan participant and/or short term incentive plan participant who is employed by the Fyffes
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(ii)
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in the event that the Effective Time occurs on or after January 1, 2015, (A) Fyffes shall have the right to pay each employee of the Fyffes Group who participates in the annual bonus or short term incentive plan an annual cash bonus in respect of 2014 based on actual performance, such bonus to be paid at the same time or times Fyffes pays such bonuses in the ordinary course of business and (B) Fyffes shall have the right to pay each employee of the Fyffes Group who participates in the annual bonus or incentive plan an annual cash bonus in respect of 2015 in an amount equal to the target bonus for 2015, such bonus to be paid at the same time or times Fyffes pays bonuses in the ordinary course of business;
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(iii)
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consistent with its past practice, make appropriation in such fiscal year to each employee of the Fyffes Group who participates in the Fyffes Profit Share Plan in respect of such fiscal year;
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(iv)
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pay in cash, at such time as Fyffes pays such awards in the ordinary course, any award that vests under the Fyffes Short Term Incentive Plan.
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(i)
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Without limiting the provisions of Clause 7.4(b) hereof:
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(i)
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in the event that the Effective Time occurs prior to December 31, 2014, Chiquita shall be entitled to pay on or about the Effective Time, the Chiquita 2014 Bonuses based on the target level of performance to each Chiquita 2014 Bonus Plan Participant who is employed by the Chiquita Group on the Effective Time; and
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(ii)
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in the event that the Effective Time occurs on or after January 1, 2015, (A) Chiquita shall have the right to pay each employee of the Chiquita Group who participates in the annual bonus or incentive plan an annual cash bonus in respect of 2014 based on actual performance, such bonus to be paid at the same time or times Chiquita pays such bonuses in the ordinary course of business and (B) Chiquita shall have the right to pay each employee of the Chiquita Group who participates in the annual bonus or incentive plan an annual cash bonus in respect of 2015 in an amount equal to the target bonus for 2015, such bonus to be paid at the same time or times Chiquita pays bonuses in the ordinary course of business.
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(j)
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Nothing in this Agreement shall confer upon any Fyffes Employee or Chiquita Employee any right to continue in the employ or service of
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7.5
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Stock Exchange Listing
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7.6
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Corporate Governance Matters
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(a)
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Chiquita and the Chiquita Board and IrHoldco and the IrHoldco Board shall take all actions necessary so that, as of the Effective Time, the number of directors that comprise the full IrHoldco Board shall be thirteen. The IrHoldco Board as of the Effective Time shall be reconstituted as follows: Fyffes shall be entitled to designate six directors, Chiquita shall be entitled to designate six directors, and the remaining director shall appointed by the mutual consent of Fyffes and Chiquita; provided that if the remaining director shall not have been appointed by the Effective Time, the remaining director shall thereafter be appointed by the respective designees of Fyffes and Chiquita. In the event that, prior to the Effective Time, any designee of Fyffes or Chiquita to the IrHoldco Board is unable or unwilling to serve on such board of directors, a replacement shall be similarly selected by Fyffes or Chiquita, as applicable, provided that no more than one designee (in the case of Chiquita) and two designees (in the case of Fyffes) shall not qualify as an “independent” director within the rules of the NYSE for persons serving on an audit or compensation committee.
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(b)
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Chiquita and the Chiquita Board and IrHoldco and the IrHoldco Board shall take all actions necessary so that, as of the Effective Time, each committee of the IrHoldco Board shall be composed of an equal number of Fyffes and Chiquita directors, plus, if determined jointly by Fyffes and Chiquita, any person so designated who qualifies as an “independent director” and is not a designee of either Chiquita or Fyffes.
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(c)
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Prior to the Effective Time, and to the extent such individuals continue to serve as officers of Fyffes and Chiquita, as applicable, at the Effective Time, the IrHoldco Board shall take all actions as may be necessary to appoint the individuals listed on Exhibit 7.6(c) to the respective positions indicated therein, effective as of the Effective Time. All other officers shall be determined jointly by Fyffes and Chiquita or, if determined following the Effective Time, by the Board of Directors of IrHoldco, including a majority of the designees of each of Fyffes and Chiquita, in each instance with the objective of designating the best person for each position.
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(d)
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IrHoldco, Chiquita and Fyffes shall take all action as may be necessary to cause the name of IrHoldco as of Completion to be “ChiquitaFyffes plc”.
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(e)
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Prior to the Effective Time, IrHoldco shall offer to enter into agreements effective as of the Effective Time, with the individuals and on the terms set forth on Clause 7.6(e) of the Fyffes Disclosure Schedule.
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(f)
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Following Completion, senior executives of the combined company shall be based in both Dublin, Ireland and Charlotte, North Carolina.
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7.7
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Rule 16b-3 Actions
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7.8
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Financing Cooperation
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|
(a)
|
Prior to the Completion Date, Fyffes shall provide to Chiquita, and shall cause its Subsidiaries to, and shall use all reasonable endeavours to cause the respective officers, employees and advisors and other Representatives, including legal and accounting, of Fyffes and its Subsidiaries to, provide to Chiquita and its Subsidiaries such cooperation as may be reasonably requested by Chiquita in connection with the arranging, obtaining, syndication and consummation of the Financing (provided that such requested cooperation does not unreasonably interfere with the business or operations of Fyffes and its Subsidiaries), including (i) participating in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions and sessions with prospective lenders, investors and rating agencies, (ii) assisting with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required or necessary in connection with the Financing, (iii) furnishing Chiquita as promptly as reasonably practicable with financial and other pertinent information regarding Fyffes and its Subsidiaries as may be reasonably requested by Chiquita to consummate the Financing, (iv) providing such documents and other information relating to Fyffes and its Subsidiaries as may be reasonably required to enable the delivery of any customary certificates or certifications, customary legal opinion, negative assurance opinion and customary comfort letters relating to the Financing, (v) using all reasonable endeavours to obtain the consents of Fyffes’ accountants for use of their reports on the audited financial statements of Fyffes in any materials relating to the Financing, (vi) using reasonable endeavours to obtain Fyffes’ accountant’s comfort letters and customary legal opinions reasonably requested by Chiquita or any financing source, (vii) reasonably cooperating with requests for customary due diligence investigations, (viii) using reasonable endeavours to ensure that the Financing benefits from the existing lender relationships of Fyffes and its Subsidiaries and (ix) providing such documentation and other information about Fyffes and its Subsidiaries as is reasonably requested in writing by Chiquita in advance of the Completion Date in connection with the Financing that relates to applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT ACT; provided that (A) the Fyffes Board and officers of Fyffes prior to the Completion Date and the directors and officers of the Subsidiaries of Fyffes prior to the Completion Date shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Financing is obtained, except for such resolutions
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(b)
|
Fyffes and Chiquita shall share equally in the expenses incurred in connection with seeking to implement the Financing (other than fees and expenses of its attorneys and accountants, which shall be paid by the respective party); provided that any such expenses payable by Fyffes shall be paid on the earlier of the (i) the termination of this Agreement in accordance with its terms and (ii) the Completion. Furthermore, the appropriate Party shall, upon written request by the other Party, reimburse the other for its share of reasonable documented out-of-pocket costs and expenses incurred in connection with the Financing and shall indemnify and hold harmless the other, and its respective Representatives from and against any and all liabilities, losses, damages, claims, expenses, interest, judgments and penalties suffered or incurred by them in connection with the syndication or consummation of the Financing arising as a result of (x) any information provided by the other and utilised in connection therewith, or (y) willful misconduct or gross negligence by the other or its Representatives.
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7.9
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Dividends
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7.10
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Creation of Distributable Reserves
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(a)
|
Unless Chiquita and Fyffes otherwise agree, (i) Chiquita shall use all reasonable endeavours to submit to the vote of the Chiquita Shareholders at the Chiquita Shareholders Meeting a resolution (the “Chiquita Distributable Reserves Resolution”) to approve the reduction of the share premium of IrHoldco to allow the creation of distributable reserves of IrHoldco (the “IrHoldco Distributable Reserves Creation”) and (ii) Fyffes shall use all reasonable endeavours to submit to the vote of the Fyffes Shareholders at the EGM a resolution to approve the reduction of
|
|
(b)
|
The Parties agree that none of the approval of the Chiquita Distributable Reserves Resolution, the approval of the Fyffes Distributable Reserves Resolution or the implementation of the IrHoldco Distributable Reserves Creation shall be a condition to the Parties’ obligation to effect the Combination or the Merger.
|
|
(c)
|
Subject to approval of the Fyffes Distributable Reserves Resolution by the Fyffes Shareholders and the Chiquita Distributable Reserves Resolution by the Chiquita Shareholders, Chiquita and IrHoldco shall:
|
|
(i)
|
prior to Completion, procure the passing of a resolution of the shareholders of IrHoldco providing for the reduction of share capital of IrHoldco in order to allow an application to be made under Section 72 of the Act to the High Court to allow for the IrHoldco Distributable Reserves Creation; and
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|
(ii)
|
as promptly as reasonably practicable following Completion, prepare and file an application to the High Court for an order pursuant to the Act approving the IrHoldco Distributable Reserves Creation.
|
|
7.11
|
Certain IrHoldco Shareholder Resolutions
|
|
(a)
|
the re-registration of IrHoldco as a public limited company;
|
|
(b)
|
the appointment, or confirmation of the appointment, of directors of IrHoldco with effect from the Effective Time in accordance with Clause 7.6;
|
|
(c)
|
(if shareholder approval is required) the acquisition of IrHoldco Subscriber Shares;
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|
(d)
|
the purchase of its own shares and reissue of treasury shares; and
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|
(e)
|
the grant to the directors of share allotment authorities and powers to allot securities in disregard of shareholders pre-emption rights to the maximum extent permissible under Irish law.
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|
7.12
|
IrHoldco’s Obligations
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|
7.13
|
Transaction Litigation
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|
7.14
|
Steps to be Compliant with the Sarbanes-Oxley Act
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|
7.15
|
Support Letter
|
8.
|
COMPLETION OF COMBINATION AND MERGER
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|
8.1
|
Completion
|
|
(a)
|
Completion Date:
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|
(i)
|
Completion shall take place at 9:00 a.m., New York City time, on a date to be agreed by the Parties, being not more than 3 Business Days (or such shorter period of time as remains before 11:59 p.m., New York City time, on the End Date) after the satisfaction or, in the sole discretion of the applicable Party, waiver (where
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(ii)
|
Completion shall take place at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, NY 10036.
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|
(b)
|
On or prior to Completion:
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|
(i)
|
Fyffes shall procure that a meeting of the Fyffes Board (or a duly authorised committee thereof) is held at which resolutions are passed (conditional on registration of the Court Order with the Registrar of Companies occurring and effective as of the Effective Time) approving:
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|
(A)
|
the allotment and issue to IrHoldco (and/or its nominees) in accordance with the Scheme of the number of new shares in the capital of Fyffes provided for in the Scheme;
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|
(B)
|
the removal of the directors of Fyffes as IrHoldco shall determine; and
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|
(C)
|
the appointment of such persons as IrHoldco may nominate as the directors of Fyffes with the approval of Fyffes and Chiquita.
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|
(c)
|
On Completion:
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|
(i)
|
IrHoldco shall, in respect of each Fyffes Share subject to the Scheme: issue 0.1567 (the “Exchange Ratio”) of a IrHoldco Share (the “Share Consideration” together with any cash in lieu of Fractional Entitlements due a holder, the “Scheme Consideration”) to the applicable Fyffes Shareholder (and/or their nominees), which Share Consideration shall be duly authorised, validly issued, fully paid and non-assessable and free of Liens and pre-emptive rights; provided, however, that no fractions of IrHoldco Shares (the “Fractional Entitlements”) shall be issued by IrHoldco to the Fyffes Shareholders under this Clause 8.1(c)(i), and all Fractional Entitlements shall be aggregated and sold in the market by the Exchange Agent with the net proceeds of any such sale distributed pro-rata to the Fyffes Shareholders;
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|
(ii)
|
Fyffes shall deliver to IrHoldco:
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|
(A)
|
a certified copy of the resolutions referred to in Clause 8.1(b)(i);
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|
(B)
|
letters of resignation from the directors that are removed from Fyffes in accordance with Clause 8.1(b)(i)(B) (each such letter containing an acknowledgement that such resignation is without any claim or right of action of any nature whatsoever outstanding against Fyffes or the Fyffes Group or any of their officers or employees for breach of contract, compensation for loss of office, redundancy or unfair dismissal or on any other grounds whatsoever in respect of the removal); and
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|
(C)
|
share certificates in respect of the aggregate number of shares in the capital of Fyffes to be issued to IrHoldco (and/or its nominees) in accordance with the Scheme.
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|
(iii)
|
Fyffes shall cause an office copy of the Court Order and a copy of the minute required by Section 75 of the Act to be filed with the Companies Registration Office and obtain from the Registrar of Companies a Certificate of Registration in relation to the reduction of share capital involved in the Scheme.
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|
(iv)
|
By the time of the Court Hearing, Chiquita and IrHoldco shall cause the IrHoldco Memorandum and Articles of Association to be amended and restated in their entirety in the form set forth in Exhibit 8.1(c)(iv), with such changes as Chiquita and Fyffes shall mutually agree.
|
|
(v)
|
Chiquita and IrHoldco shall enter into a supplemental indenture in respect of the Chiquita Convertible Notes containing the provisions required by the Chiquita Convertible Notes Indenture and pursuant to which IrHoldco shall agree to unconditionally guarantee Chiquita’s obligations under the Chiquita Convertible Notes and shall take all such other actions required to be taken by the Chiquita Convertible Notes Indenture with respect to the Chiquita Convertible Notes in connection with the transactions contemplated hereby, including, without limitation, registering any underlying IrHoldco Shares issuable thereunder (if required by applicable Law).
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|
(d)
|
Exchange of Fyffes Shares
|
|
(i)
|
Exchange Agent. On or immediately after the Completion, IrHoldco shall deposit, or cause to be deposited, with the Exchange Agent, for the benefit of the Fyffes Shareholders, evidence of shares in book entry form representing the aggregate Share Consideration. All shares deposited with the Exchange Agent pursuant to the preceding sentence shall hereinafter be referred to as the “Fyffes Exchange Fund”.
|
|
(ii)
|
Chiquita and Fyffes agree to use all reasonable endeavours acting in good faith to agree and implement the arrangements for the delivery to, and holding and settlement by, the Fyffes Shareholders of the Share Consideration with a view to facilitating holding and transfer of IrHoldco shares on an efficient and cost effective basis. Unless otherwise agreed by the parties, Chiquita and Fyffes will co-operate to implement the following arrangements to the extent permissible and feasible on Completion:
|
|
(A)
|
the Share Consideration will not be admitted to Irish CREST and will not be capable of being held, transferred or settled through Irish CREST;
|
|
(B)
|
the Share Consideration (to be held through DTC) will be deposited in DTC;
|
|
(C)
|
Fyffes Shareholders who hold their shares in uncertificated form may, to the extent permissible and feasible, have their Share Consideration delivered in the form of IrHoldco CDIs which will be held and settled in UK CREST;
|
|
(D)
|
Fyffes Shareholders who hold their Fyffes Shares in certificated form and have a registered address in a CSN Permitted Jurisdiction will be offered participation in a CSN Facility; and
|
|
(E)
|
Fyffes Shareholders who hold their Fyffes Shares in certificated form and have a registered address in a CSN Restricted Jurisdiction will, to the extent permissible in accordance with applicable Law and not (in the reasonable opinion of Chiquita and Fyffes) unduly onerous for any reason, be issued Share Consideration directly or, if not permissible or if unduly onerous, have their IrHoldco Shares sold and the proceeds net of dealing costs remitted to them.
|
|
(iii)
|
Exchange Procedures. Unless otherwise agreed by Chiquita and Fyffes, as soon as reasonably practicable following the publication of the Joint Proxy Statement, and in any event within four (4) Business Days after the Effective Time, IrHoldco shall cause the Exchange Agent to mail to each holder of record of a Fyffes Share, entitled at the Effective Time to a right to receive the Scheme Consideration pursuant to Clause 8.1(c)(i), (i) a letter of transmittal which shall inform each holder that each Fyffes Share issued and outstanding immediately prior to the Scheme Effective Time, and all rights in respect thereof, will at the Scheme Effective Time be cancelled and automatically converted into and become the right to receive cash in respect of any Fractional Entitlement and any cash payment that may be made pursuant to Clause 8.1(d)(ii)(E) and (unless a cash payment is to be made pursuant to Clause 8.1(d)(ii)(E)) Share Consideration to be delivered in accordance with Clause 8.1(d)(ii)(E) or in one of the following methods as determined by the holder: (A) book entry interests in shares held through DTC; (B) IrHoldco CDIs or (C) through the CSN Facility, and (ii) instructions for use in effecting the determination for delivery of the Share Consideration in the method of their choice. After the Scheme Effective Time and provided (where applicable) notice of such determination has been received by the Exchange Agent, together with such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Fyffes Shares shall be entitled to receive in exchange therefor: (a) a check in an amount of U.S. dollars (after giving effect to any required withholdings pursuant to Clause 8.1(d)(vi)) equal to the amount of any cash payable in lieu of any Fractional Entitlements that such holder has the right to receive pursuant to Clause 8.1(c)(i) and any cash payment that may be made pursuant to Clause 8.1(d)(ii)(E) and any cash payment that may be made pursuant to Clause 8.1(d)(ii)(E) and (b) (unless a cash payment is to be made pursuant to Clause 8.1(d)(ii)(E) in the form of (A) book entry interests in shares held through DTC; (B) IrHoldco CDIs; (C) through interests held under the CSN Facility; or (D) in accordance with Clause 8.1(d)(ii)(E), through direct issuance, such number of IrHoldco Shares into which such holder’s Fyffes Shares were converted pursuant to Clause 8.2 (c)(i). No interest shall be paid or shall accrue for the benefit of holders of the Fyffes Shares on the Scheme Consideration payable in respect of the Fyffes Shares. Chiquita and Fyffes will consider in good faith additional procedures which may be appropriate to facilitate
|
|
(iv)
|
Termination of Fyffes Exchange Fund. Any portion of the Fyffes Exchange Fund which has not been transferred to the holders of Fyffes Shares as of the one-year anniversary of the Effective Time shall be delivered to IrHoldco or its designee, upon demand, and the IrHoldco Shares included therein shall be sold at the best price reasonably obtainable at the time. Any holder of Fyffes Shares who has not informed the Exchange Agent of its chosen method of delivery of the Share Consideration prior to the one-year anniversary of the Effective Time shall thereafter look only to IrHoldco for payment of such holder’s claim for the Share Consideration (subject to abandoned property, escheat or other similar applicable Laws).
|
|
(v)
|
No Liability. None of the Chiquita Merger Parties, Chiquita or Fyffes or the Exchange Agent or any of their respective Affiliates, directors, officers, employees and agents shall be liable to any person in respect of any Share Consideration (or dividends or distributions with respect thereto) from the Fyffes Exchange Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
|
|
(vi)
|
Withholding. IrHoldco and the Exchange Agent shall be entitled to deduct and withhold from any amount payable pursuant to this Agreement to any Person who was a holder of a Fyffes Share subject to the Scheme such amounts as IrHoldco or the Exchange Agent may be required to deduct and withhold with respect to the making of such payment under the Code or any other provision of federal, state, local or non-U.S. Tax law. To the extent that amounts are so withheld by IrHoldco or the Exchange Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the person to whom such consideration would otherwise have been paid.
|
|
8.2
|
Merger
|
|
(a)
|
Completion of Merger. The Merger shall be conditioned only upon the consummation and implementation of the Scheme and the Combination. Immediately following implementation of the Scheme, and in accordance with the NJBCA, MergerSub shall be merged with and into Chiquita at the Merger Effective Time (as defined in Clause 8.2(b)). Following the Merger, the separate corporate existence of MergerSub shall cease and Chiquita shall continue as the surviving corporation (the “Surviving
|
|
(b)
|
Merger Effective Time. Subject to the provisions of this Agreement, a certificate of merger satisfying the applicable requirements of the NJBCA shall be duly executed by Chiquita and MergerSub and as soon as practicable following the Completion shall be filed on the Completion Date with the Department of Treasury of the State of New Jersey (the “Certificate of Merger”). The Merger shall become effective at the time of the filing of the Certificate of Merger with the Department of Treasury of the State of New Jersey or at such later time as may be designated jointly by Chiquita and Fyffes and specified in such Certificate of Merger; provided that the Merger shall become effective substantially concurrently with the effectiveness of the Scheme, to the extent possible (the time the Merger becomes effective being the “Merger Effective Time”).
|
|
(c)
|
Effects of the Merger. At and after the Merger Effective Time, the Merger will have the effects set forth in the Certificate of Merger and the NJBCA. Without limiting the generality of the foregoing, and subject thereto, at the Merger Effective Time, the separate corporate existence of MergerSub shall cease and all the property, rights, privileges, powers and franchises of Chiquita and MergerSub shall be vested in the Surviving Corporation, and all debts, liabilities and duties of Chiquita and MergerSub shall become the debts, liabilities and duties of the Surviving Corporation.
|
|
(d)
|
Governing Documents. The Certificate of Incorporation and the Bylaws of the Surviving Corporation shall be amended as of the Merger Effective Time so as to read in their entirety as the Certificate of Incorporation and Bylaws of MergerSub as in effect immediately prior to the Merger Effective Time, except for the incorporator and except that the Surviving Corporation shall retain Chiquita’s name.
|
|
(e)
|
Officers. From and after the Merger Effective Time and except as otherwise provided in this Agreement, the officers of Chiquita immediately before the Merger Effective Time shall be the officers of the Surviving Corporation immediately after the Merger Effective Time.
|
|
(f)
|
Effect on Capital Stock. At the Merger Effective Time, by virtue of the Merger and without any action on the part of the Parties or any of their respective shareholders:
|
|
(i)
|
Conversion of Chiquita Common Stock. Each Chiquita Share issued and outstanding immediately prior to the Merger Effective
|
|
(ii)
|
MergerSub Capital Stock. At the Merger Effective Time, by virtue of the Merger and without any action on the part of the Parties or any of their respective shareholders, each share of common stock of MergerSub issued and outstanding immediately prior to the Merger Effective Time, and all rights in respect thereof, shall forthwith be cancelled and cease to exist and be converted into one fully paid and nonassessable share of common stock of the Surviving Corporation, which shall constitute the only outstanding shares of capital stock of the Surviving Corporation and which shall be held by Delaware Sub.
|
|
(iii)
|
Cancellation of IrHoldco Shares. Each IrHoldco Subscriber Share in existence immediately prior to the Merger Effective Time shall immediately following the Effective Time be acquired by IrHoldco for nil consideration under the Companies (Amendment) Act 1983.
|
|
(iv)
|
Chiquita-Owned Shares. Each Chiquita Share held by Chiquita as treasury stock or owned by Chiquita immediately prior to the Merger Effective Time, shall be cancelled without any conversion thereof, and no consideration shall be paid with respect thereto.
|
|
(g)
|
Exchange of Certificates and Book Entry Shares.
|
|
(i)
|
Exchange Agent. At the Merger Effective Time, IrHoldco shall deposit with the Exchange Agent, certificates or, at IrHoldco’s option, evidence of shares in book entry form, representing the aggregate Merger Consideration (other than the IrHoldco Subscriber Shares). All certificates representing IrHoldco Shares deposited with the Exchange Agent pursuant to the preceding
|
|
(ii)
|
Exchange Procedures. As soon as reasonably practicable after the Merger Effective Time, and in any event within four (4) Business Days after the Merger Effective Time, IrHoldco shall cause the Exchange Agent to mail to each holder of record of a Chiquita Certificate and to each holder of record of a Chiquita Book Entry Share, which at the Merger Effective Time were converted into the right to receive the Merger Consideration pursuant to Clause 8.2(f)(i), (i) a letter of transmittal (which shall specify that delivery shall be effected, and that risk of loss and title to the Chiquita Certificates shall pass, only upon delivery of the Chiquita Certificates to the Exchange Agent or, in the case of Chiquita Book Entry Shares, upon adherence to the procedures set forth in the letter of transmittal), and (ii) instructions for use in effecting the surrender of the Chiquita Certificates and Chiquita Book Entry Shares, as applicable, in exchange for payment of the Merger Consideration therefor. Upon surrender of Chiquita Certificates or Chiquita Book Entry Shares (as applicable) for cancellation to the Exchange Agent, together with such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Chiquita Certificates or Chiquita Book Entry Shares (as applicable) shall be entitled to receive in exchange therefor: (a) that number of IrHoldco Shares into which such holder’s Chiquita Shares represented by such holder’s properly surrendered Chiquita Certificates or Chiquita Book Entry Shares (as applicable) were converted pursuant to Clause 8.2(f)(i), and the Chiquita Certificates or Chiquita Book Entry Shares (as applicable) so surrendered shall forthwith be cancelled, and (b) a check in an amount of U.S. dollars (after giving effect to any required withholdings pursuant to Clause 8.2(g)(ix)) equal to any cash dividends or other distributions that such holder has the right to receive pursuant to Clause 8.2(g)(iv). No interest shall be paid or shall accrue for the benefit of holders of the Chiquita Certificates or Chiquita Book Entry Shares on the Merger Consideration payable in respect of the Chiquita Certificates or Chiquita Book Entry Shares. Chiquita and Fyffes will consider in good faith additional procedures which may be appropriate to facilitate transfers of shares following the Merger Effective Time.
|
|
(iii)
|
Transferred Certificates; Lost, Stolen or Destroyed Certificates. If payment or issuance of the Merger Consideration is to be made to a person other than the person in whose name the surrendered Chiquita Certificate is registered, it shall be a condition of payment or issuance that the Chiquita Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer and that the person requesting such payment or issuance shall have paid to the Exchange Agent any transfer and other taxes required by reason of the payment or issuance of the Merger Consideration to a person other than the registered holder of the Chiquita Certificate surrendered or shall have established to the satisfaction of the Exchange Agent that such tax either has been paid or is not applicable. In the event that any Chiquita Certificate shall have been lost, stolen or destroyed, upon the holder’s compliance with the replacement requirements established by the Exchange Agent, including, if necessary, the posting by the holder of a bond in customary amount as indemnity against any claim that may be made against it with respect to the Chiquita Certificate, the Exchange Agent shall deliver in exchange for the lost, stolen or destroyed Chiquita Certificate the applicable Merger Consideration payable in respect of the Chiquita Shares represented by the Chiquita Certificate pursuant to this Clause 8.2.
|
|
(iv)
|
Distributions with Respect to Unexchanged Shares. No dividends or other distributions with respect to IrHoldco Shares with a record date after the Merger Effective Time shall be paid to the holder of any unsurrendered Chiquita Certificate or Chiquita Book Entry Shares (as applicable) with respect to the Chiquita Shares represented thereby until such Chiquita Certificate or Chiquita Book Entry Shares (as applicable) has been surrendered in accordance with this Clause 8.2. Subject to applicable Law and the provisions of this Clause 8.2, following surrender of any such Chiquita Certificate or Chiquita Book Entry Shares (as applicable), there shall be paid to the record holder thereof by the Exchange Agent, without interest promptly after such surrender, (a) the number of IrHoldco Shares to which such record holder was entitled pursuant to this Clause 8.2, (b) at the time of surrender, the amount of dividends or other distributions with a record date on or after the date of the Merger Effective Time and a payment date on or prior to the date of this surrender and not previously paid and (c) at the appropriate payment date, the dividends or other distributions payable with respect to those IrHoldco Shares with a
|
|
(v)
|
No Further Ownership Rights in Chiquita Shares. Until surrendered as contemplated hereby, each Chiquita Certificate or Chiquita Book-Entry Share shall, after the Merger Effective Time, represent for all purposes only the right to receive upon such surrender the applicable Merger Consideration as contemplated by this Clause 8.2, the issuance or payment of which shall be deemed to be the satisfaction in full of all rights pertaining to Chiquita converted in the Merger. At the Merger Effective Time, the stock transfer books of Chiquita shall be closed, and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Chiquita Shares which were outstanding immediately prior to the Merger Effective Time. If, after the Merger Effective Time, Chiquita Certificates or Chiquita Book Entry Shares are presented to the Surviving Corporation or the Exchange Agent for any reason, they shall be cancelled and exchanged as provided in this Clause 8.2.
|
|
(vi)
|
Termination of Chiquita Exchange Fund. Any portion of the Chiquita Exchange Fund which has not been transferred to the holders of Chiquita Certificates or Chiquita Book Entry Shares (as applicable) as of the one-year anniversary of the Merger Effective Time shall be delivered to IrHoldco or its designee, upon demand, and the IrHoldco Shares included therein shall be sold at the best price reasonably obtainable at that time. Any holder of Chiquita Certificates or Chiquita Book Entry Shares (as applicable) who has not complied with this Clause 8.2 prior to the one-year anniversary of the Merger Effective Time shall thereafter look only to IrHoldco for payment of such holder’s claim for the Merger Consideration (subject to abandoned property, escheat or other similar applicable Laws).
|
|
(vii)
|
No Liability. None of the Chiquita Merger Parties, Chiquita or Fyffes or the Exchange Agent or any of their respective Affiliates, directors, officers, employees and agents shall be liable to any person in respect of any IrHoldco Shares (or dividends or distributions with respect thereto) from the Chiquita Exchange Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
|
|
(viii)
|
Withholding. Delaware Sub, MergerSub and the Exchange Agent shall be entitled to deduct and withhold from any amount payable
|
9.
|
TERMINATION
|
|
9.1
|
Termination
|
|
(a)
|
This Agreement may be terminated at any time prior to the Effective Time:
|
|
(i)
|
by either Fyffes or Chiquita if:
|
|
(A)
|
the Court Meeting or the EGM shall have been completed and the Court Meeting Resolution or the EGM Resolutions, as applicable, shall not have been approved by the requisite majorities; or
|
|
(B)
|
the Chiquita Shareholders Meeting shall have been completed and the Chiquita Shareholder Approval shall not have been obtained;
|
|
(ii)
|
by either Fyffes or Chiquita if the Effective Time shall not have occurred by 11:59 p.m., New York City time, on the End Date, provided that the right to terminate this Agreement pursuant to this Clause 9.1(a)(ii) shall not be available to a Party whose breach of any provision of this Agreement shall have caused the failure of the Effective Time to have occurred by such time;
|
|
(iii)
|
by either Fyffes or Chiquita if the High Court declines or refuses to sanction the Scheme, unless both Parties agree that the decision of the High Court shall be appealed;
|
|
(iv)
|
by either Fyffes or Chiquita if an injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Combination or the Merger and such injunction shall have become final and non-appealable, provided
|
|
(v)
|
by Fyffes, if any Chiquita Party shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (1) would result in a failure of Conditions 1, 2, 3 or 5 and (2) is not reasonably capable of being cured by the date that is one year after the date of this Agreement, provided that, Fyffes shall have given Chiquita written notice, delivered at least 30 days prior to such termination, stating Fyffes’ intention to terminate this Agreement pursuant to this Clause 9.1(a)(v) and the basis for such termination;
|
|
(vi)
|
by Chiquita, if Fyffes shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (1) would result in a failure of a Condition set forth in Conditions 1, 2, 3 or 4 and (2) is not reasonably capable of being cured by the date that is one year after the date of this Agreement, provided that, Chiquita shall have given Fyffes written notice, delivered at least 30 days prior to such termination, stating Chiquita’s intention to terminate this Agreement pursuant to this Clause 9.1(a)(vi) and the basis for such termination;
|
|
(vii)
|
by Chiquita, in the event that a Fyffes Change of Recommendation shall have occurred;
|
|
(viii)
|
by Fyffes, in the event that a Chiquita Change of Recommendation shall have occurred;
|
|
(ix)
|
by Fyffes, pursuant to Clause 5.3(i)(i);
|
|
(x)
|
by Chiquita, pursuant to Clause 5.4(i)(i); or
|
|
(xi)
|
by mutual written consent of Fyffes and Chiquita.
|
|
(b)
|
Termination of this Agreement in accordance with Clause 9.1(a) shall not give rise to any liability of the Parties except as provided in the Expenses Reimbursement Agreement. Clause 10 (other than Clauses 10.1 and 10.11) of this Agreement shall survive, and continue in full force and effect, notwithstanding its termination.
|
|
(c)
|
Upon:
|
|
(i)
|
Chiquita becoming entitled to a Chiquita Reimbursement Payment, Fyffes shall have no further liability in connection with the termination of this Agreement (for the avoidance of doubt, other than the obligation to pay Chiquita Reimbursement Payments pursuant to the Expenses Reimbursement Agreement), whether under the Expenses Reimbursement Agreement or this Agreement or otherwise, to Chiquita or its shareholders; or
|
|
(ii)
|
Fyffes becoming entitled to the Fyffes Reimbursement Payment, Chiquita and the Financing Sources in their capacities as such shall have no further liability in connection with the termination of this Agreement (for the avoidance of doubt, other than the obligation to pay the Fyffes Reimbursement Payments pursuant to the Expenses Reimbursement Agreement), whether under the Expenses Reimbursement Agreement or this Agreement or otherwise, to Fyffes or its shareholders (it being expressly agreed that the Financing Sources in their capacities as such shall be third party beneficiaries of this Clause 9.1(c)(ii) and shall be entitled to the protections of the provisions contained in this Clause 9.1(c)(ii) as if they were a party to this Agreement);
|
|
(d)
|
Each Party hereto understands and confirms that termination of this Agreement shall (i) be without prejudice to the provisions of the Expenses Reimbursement Agreement and (ii) not affect the obligations of each Party to pay costs and expenses as provided in Clause 10.12.
|
10.
|
GENERAL
|
|
10.1
|
Announcements
|
|
10.2
|
Notices
|
|
(a)
|
Any notice or other document to be served under this Agreement may be delivered by recognized overnight delivery service (with proof of service) or hand delivery in writing, or sent by facsimile process, to the Party to be served as follows:
|
|
(i)
|
if to Chiquita, to:
|
|
(ii)
|
if to Fyffes, to:
|
|
(b)
|
Any notice or document shall be deemed to have been served:
|
|
(i)
|
if delivered by overnight delivery or by hand, at the time of delivery; or
|
|
(ii)
|
if sent by fax, at the time of termination of the fax transmission (provided that any notice received by facsimile transmission at the addressee’s location on any day that is not a Business Day, or on any Business Day after 5:00 p.m. (addressee’s local time), shall be deemed to have been received at 9:00 a.m. (addressee’s local time) on the next Business Day).
|
|
10.3
|
Assignment
|
|
10.4
|
Counterparts
|
|
10.5
|
Amendment
|
|
10.6
|
Entire Agreement
|
|
10.7
|
Inadequacy of Damages
|
|
10.8
|
Remedies and Waivers
|
|
(a)
|
affect that right, power or remedy; or
|
|
(b)
|
operate as a waiver of it.
|
|
10.9
|
Severability
|
|
(a)
|
The legality, validity or enforceability in that jurisdiction of any other provision of this Agreement; or
|
|
(b)
|
The legality, validity or enforceability under the Law of any other jurisdiction of that or any other provision of this Agreement.
|
|
10.10
|
No Partnership and No Agency
|
|
(a)
|
Nothing in this Agreement and no action taken by the Parties pursuant to this Agreement shall constitute, or be deemed to constitute, a partnership, association, joint venture or other cooperative entity between any of the Parties.
|
|
(b)
|
Nothing in this Agreement and no action taken by the Parties pursuant to this Agreement shall constitute, or be deemed to constitute, any Party the agent of any other Party for any purpose. No Party has, pursuant to this Agreement, any authority or power to bind or to contract in the name of any other Party to this Agreement.
|
|
10.11
|
Further Assurance
|
|
10.12
|
Costs and Expenses
|
|
(a)
|
the Panel’s document review fees (which shall be borne and discharged 50% by Chiquita and 50% by Fyffes),
|
|
(b)
|
the costs of, and associated with, the filing, printing, publication and posting of the Joint Proxy Statement and the Form S-4 and any other materials required to be posted to Fyffes Shareholders or Chiquita Shareholders pursuant SEC rules or the Takeover Rules, and the filing fees incurred in connection with notifications with any Relevant Authorities under any Antitrust Laws (which shall be borne and discharged 50% by Chiquita and 50% by Fyffes); and
|
|
(c)
|
the costs in connection with implementing the Financing, which shall be borne and discharged as provided herein;
|
|
10.13
|
Governing Law and Jurisdiction
|
|
(a)
|
This Agreement shall be governed by, and construed in accordance with, the Laws of Ireland; provided, however, that the Merger and matters related thereto shall, to the extent required by the Laws of the State of New Jersey, be governed by, and construed in accordance with, the Laws of the State of New Jersey.
|
|
(b)
|
Each of the Parties irrevocably agrees that the courts of Ireland are to have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement and, for such purposes, irrevocably submits to the exclusive jurisdiction of such courts. Any proceeding, suit or action arising out of or in connection with this Agreement shall therefore be brought in the courts of Ireland.
|
|
(c)
|
Notwithstanding the foregoing, each of the Parties hereto acknowledges and irrevocably agrees (i) that any Action (whether at law, in equity, in contract, in tort or otherwise) arising out of, or in any way relating to, this Agreement, any of the transactions contemplated by this Agreement, the Financing or the performance of services thereunder or related thereto against any Financing Source in its capacity as such shall be subject to the exclusive jurisdiction of any state or federal court sitting in the Borough of Manhattan, New York, New York, and any appellate court thereof and each Party hereto submits for itself and its property with respect to any such Action to the exclusive jurisdiction of such court, (ii) not to bring or permit any of their Affiliates to bring or support anyone else in bringing any such Action in any other court, (iii) to waive and hereby waive, to the fullest extent permitted by law, any objection which any of them may now or hereafter have to the laying of venue of, and the defence of an inconvenient forum to the maintenance of, any such Action in any such court, (iv) that a final judgment in any such Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law and (v) that any such Action shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to the conflicts of law rules of such state that would result in the application of the laws of any other state or jurisdiction (it being expressly agreed that the Financing Sources in their capacities as such shall be third party beneficiaries of this Clause 10.13(c) and shall be entitled to enforce the provisions contained in this Clause 10.13(c) as if they were a party to this Agreement).
|
|
(d)
|
Each Party hereto hereby waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any Action arising out of this Agreement or the transactions contemplated by this Agreement, the Financing, or the performance of services thereunder or related thereto against any Financing Source in its capacity as such, including but not limited to any Action described in Clause 10.13(c)(i) in any such court described in Clause 10.13(c)(i) (it being expressly agreed that the Financing Sources in their capacities as such shall be third party beneficiaries of this Clause 10.13(d) and shall be entitled to enforce the provisions contained in this Clause 10.13(d) as if they were a party to this Agreement).
|
|
(e)
|
Chiquita hereby irrevocably appoints McCann FitzGerald Solicitors as its authorised agent upon whom process may be served in any suit or proceeding arising out of or in connection with this Agreement, and agrees that service of process upon such agent to the following address:
|
|
10.14
|
Third Party Beneficiaries
|
|
(a)
|
as provided in Clause 7.3;
|
|
(b)
|
as provided in Clause 9.1(c)(ii);
|
|
(c)
|
as provided in Clause 10.13(c); and
|
|
(d)
|
as provided in Clause 10.13(d);
|
|
10.15
|
Non survival of Representations and Warranties
|
GIVEN under the common seal
|
|
of FYFFES PLC
|
|
/s/ David McCann
|
|
Signature
|
|
David McCann
|
|
Print Name
|
|
Title: Chairman
|
|
/s/ Tom Murphy
|
|
Signature
|
|
Tom Murphy
|
|
Print Name
|
|
Title: Finance Director
|
SIGNED for and on behalf of
|
|
CHIQUITA BRANDS
INTERNATIONAL, INC. by its
|
|
authorised signatory:
|
|
/s/ Edward F. Lonergan
|
|
Signature
|
|
Edward F. Lonergan
|
|
Print Name
|
|
Title: President and Chief Executive Officer
|
SIGNED for and on behalf of
|
|
CBII HOLDING CORPORATION by its
|
|
authorised signatory:
|
|
/s/ Brian W. Kocher
|
|
Signature
|
|
Brian W. Kocher
|
|
Print Name
|
|
Title: President
|
SIGNED for and on behalf of
|
|
CHICAGO MERGER SUB, INC. by its
|
|
authorised signatory:
|
|
/s/ Brian W. Kocher
|
|
Signature
|
|
Brian W. Kocher
|
|
Print Name
|
|
Title: President
|
SIGNED for and on behalf of
|
|
TWOMBLY ONE LIMITED by its
|
|
authorised signatory:
|
|
/s/ Paolo Prudenziati
|
|
Signature
|
|
Paolo Prudenziati
|
|
Print Name
|
|
Title: Director
|
1.
|
The Combination will be conditional upon the Scheme becoming effective and unconditional by not later than the End Date (or such earlier date as may be specified by the Panel, or such later date as Chiquita and Fyffes may, with (if required) the consent of the Panel, agree and (if required) the High Court may allow).
|
2.
|
The Scheme will be conditional upon:
|
|
(a)
|
the approval of the Scheme by a majority in number of the Fyffes Shareholders representing three-fourths (75%) or more in value of the Fyffes Shares, at the Voting Record Time, held by such holders, present and voting either in person or by proxy, at the Court Meeting (or at any adjournment of such meeting);
|
|
(b)
|
the resolutions to be proposed at the Extraordinary General Meeting for the purposes of approving and implementing the Scheme and the reduction of capital of Fyffes, authorizing the directors of Fyffes to allot new ordinary shares in Fyffes to IrHoldco on the Scheme and the reduction of capital becoming effective, making the necessary amendments to the articles of association of Fyffes to provide that any ordinary shares of Fyffes that are issued at or after the record time for the Scheme are acquired by IrHoldco for the Scheme Consideration and approving such other matters as Fyffes reasonably determines to be necessary for the purposes of implementing the Combination or, subject to the consent of Chiquita (such consent to be not unreasonably withheld, conditioned or delayed), desirable for the purposes of implementing the Combination and set out in the notice of the Extraordinary General Meeting being duly passed by the requisite majority of Fyffes Shareholders at the Extraordinary General Meeting (or at any
|
|
(c)
|
the sanction by the High Court (with or without modification) of the Scheme pursuant to Section 201 of the Act and the confirmation of the reduction of capital involved therein by the High Court (the date on which the condition in this paragraph 2(c) is satisfied, the “Sanction Date”); and
|
|
(d)
|
office copies of the Court Order and the minute required by Section 75 of the Act in respect of the reduction (referred to in paragraph 2(c)), being delivered for registration to the Registrar of Companies and registration of the Court Order and minute confirming the reduction of capital involved in the Scheme by the Registrar of Companies.
|
3.
|
The Chiquita Parties and Fyffes have agreed that, subject to paragraph 6, the Combination will also be conditional upon the following matters having been satisfied or waived on or before the Sanction Date:
|
|
(a)
|
the adoption of the Transaction Agreement by the affirmative vote of a majority of the votes cast by Chiquita Shareholders entitled to vote thereon, as required by the New Jersey Business Corporation Act;
|
|
(b)
|
the NYSE shall have authorised, and not withdrawn such authorisation, for listing all of the Share Consideration to be issued in the Combination and all of the IrHoldco Shares (including any IrHoldco Shares issuable upon the exercise of outstanding equity awards and/or conversion of the Convertible Notes) to be delivered pursuant to the Merger subject to satisfaction of any conditions to which such approval is expressed to be subject;
|
|
(c)
|
all applicable waiting periods under the HSR Act shall have expired or been terminated, in each case in connection with the Combination and/or the Merger, as the case may be;
|
|
(d)
|
to the extent that all or part of the Combination and/or the Merger, as the case may be, is referred to the European Commission (the “Commission”) pursuant to Article 4(5) or Article 22 of the EC Merger Regulation (the “EUMR”) and the Commission obtains jurisdiction under the EUMR to examine the Combination and/or the Merger, as the case may be, the issuing by the Commission of a final decision under Article 6.1(b), Article 8(1) or Article 8(2) of the EUMR, declaring the Combination and/or the Merger, as the case may be, compatible with the common market subject to the fulfillment of one or more conditions or obligations, if any, as may be agreed to by the parties pursuant to Clause 7.2 of the Agreement;
|
|
(e)
|
to the extent that the Commission has jurisdiction to examine all or part of the
|
|
(f)
|
to the extent that the Relevant Authority or Authorities of the United Kingdom, Germany, Poland and/or the Netherlands has jurisdiction under national Antitrust Laws to examine the Combination, and/or the Merger, as the case may be, the issuing by such Relevant Authority or Authorities of a final decision or decisions which satisfy (or together satisfy) Condition 3(d) above (Condition 3(d) being interpreted mutatis mutandis) and/or all applicable waiting periods having expired, lapsed or been terminated (as appropriate) without the Combination and/or the Merger, as the case may be, being prohibited;
|
|
(g)
|
to the extent that Part 3 of the Competition Act 2002 (the “Competition Act”) is applicable:
|
|
(i)
|
the Irish competition authority as defined under the Competition Act (the “Competition Authority”), in accordance with Section 21(2)(a) of the Competition Act, having informed Chiquita that the Combination and/or the Merger, as the case may be, may be put into effect;
|
|
(ii)
|
the period specified in Section 21(2) of the Competition Act having elapsed without the Competition Authority having informed Chiquita of the determination (if any) which it has made under Section 21(2) of the Competition Act;
|
|
(iii)
|
the Competition Authority, in accordance with Section 22(4)(a) of the Competition Act, having furnished to Chiquita a copy of its determination (if any), in accordance with Section 22(3)(a) of the Competition Act, that the Combination and/or the Merger, as the case may be, may be put into effect;
|
|
(iv)
|
the Competition Authority, in accordance with Section 22(4)(a) of the Competition Act, having furnished to Chiquita a copy of its determination (if any), in accordance with Section 22(3)(c) of the Competition Act, that the Combination, and/or the Merger, as the case may be, may be put into effect subject to conditions specified by the Competition Authority being
|
|
(v)
|
the period of four months after the appropriate date (as defined in Section 19(6) of the Competition Act) having elapsed without the Competition Authority having made a determination under Section 22(3) of the Competition Act in relation to the Combination and/or the Merger, as the case may be;
|
|
(h)
|
all other required regulatory clearances shall have been obtained and remain in full force and effect and all applicable waiting periods shall have expired, lapsed or been terminated (as appropriate), in each case in connection with the Combination and/or the Merger, as the case may be, under the antitrust, competition or foreign investment laws of any applicable jurisdiction in which Fyffes or Chiquita conducts its operations that has or asserts jurisdiction over the Transaction Agreement, the Combination, the Merger or the Scheme if the failure to obtain regulatory clearance in such jurisdiction would reasonably be expected to result in a material adverse effect on (A) IrHoldco and its Subsidiaries, taken as a whole (following the consummation of the Combination and the Merger) or (B) the benefits anticipated to be realized by Chiquita and Fyffes as a result of the transactions contemplated by the Transaction Agreement;
|
|
(i)
|
no injunction, restraint or prohibition by any court of competent jurisdiction or Antitrust Order by any Relevant Authority which prohibits consummation of the Combination or the Merger or is reasonably likely, individually or in the aggregate, to constitute (if not removed) a Burdensome Condition shall have been entered and shall continue to be in effect;
|
|
(j)
|
the Form S-4 shall have become effective under the Securities Act and shall not be the subject of any stop order or proceedings seeking any stop order; and
|
|
(k)
|
the Transaction Agreement shall not have been terminated in accordance with its terms.
|
4.
|
The Chiquita Parties and Fyffes have agreed that, subject to paragraph 6, the Chiquita Parties’ obligation to effect the Combination will also be conditional upon the following matters having been satisfied (or waived by Chiquita) on or before the Sanction Date:
|
|
(a)
|
(i) (x) The representations and warranties of Fyffes set forth in Clauses 6.1(b)(i), the second sentence of Clause 6.1(j) and 6.1(t) of the Transaction Agreement shall be true and correct (except in the cause of Clause 6.1(b)(i) for any de minimis inaccuracy) at and as of the date of the Transaction Agreement and at and as of the Sanction Date as though made at and as of the Sanction Date, (y) the representations and warranties of Fyffes set forth in Clauses 6.1(b)(ii) to (v)
|
|
(b)
|
Fyffes shall have in all material respects performed all obligations and complied with all covenants required by the Transaction Agreement to be performed or complied with by it prior to the Sanction Date; and
|
|
(c)
|
Fyffes shall have delivered to Chiquita a certificate, dated as of the Sanction Date and signed by an executive officer of Fyffes, certifying on behalf of Fyffes to the effect that the conditions set forth in paragraphs 4(a) and 4(b) have been satisfied.
|
5.
|
The Chiquita Parties and Fyffes have agreed that, subject to paragraph 6, Fyffes’ obligation to effect the Combination will also be conditional upon the following matters having been satisfied (or waived by Fyffes) on or before the Sanction Date:
|
|
(a)
|
(i) (x) The representations and warranties of Chiquita and IrHoldco set forth in Clauses 6.2(b)(i), the second sentence of 6.2(j) and 6.2(u) of the Transaction Agreement shall be true and correct (except in the case of Clause 6.2(b)(i) for any de minimis inaccuracy) at and as of the date of the Transaction Agreement and at and as of the Sanction Date as though made at and as of the Sanction Date, (y) the representations and warranties of Chiquita and IrHoldco set forth in Clauses 6.2(b)(ii) and 6.2(b)(iii) (to the extent relating to shares in the capital of Chiquita) shall be true and correct in all material respects at and as of the date of the Transaction Agreement and at and as of the Sanction Date as though made at and as of the Sanction Date and (z) the representations and warranties of Chiquita and IrHoldco set forth in Clause 6.2(c)(i) shall be true and correct other than as would not materially impede or prevent the consummation of the Combination at and as
|
|
(b)
|
The Chiquita Parties shall have in all material respects performed all obligations and complied with all covenants required by the Transaction Agreement to be performed or complied with by them prior to the Sanction Date; and
|
|
(c)
|
Chiquita shall have delivered to Fyffes a certificate, dated as of the Sanction Date and signed by an executive officer of Chiquita, certifying on behalf of Chiquita to the effect that the conditions set forth in paragraphs 5(a) and 5(b) have been satisfied.
|
6.
|
Subject to the requirements of the Panel:
|
|
(a)
|
Chiquita and Fyffes reserve the right (but shall be under no obligation) to waive (to the extent permitted by applicable Law), in whole or in part, all or any of the conditions in paragraph 3 (provided that both Parties agree to any such waiver);
|
|
(b)
|
Chiquita reserves the right (but shall be under no obligation) to waive, in whole or in part, all or any of conditions in paragraph 4; and
|
|
(c)
|
Fyffes reserves the right (but shall be under no obligation) to waive, in whole or in part, all or any of the conditions in paragraph 5.
|
7.
|
The Scheme will lapse unless it is effective on or prior to the End Date.
|
8.
|
If Chiquita is required to make an offer for Fyffes Shares under the provisions of Rule 9 of the Takeover Rules, Chiquita may make such alterations to any of the conditions set out in paragraphs 1, 2, 3, 4 and 5 above as are necessary to comply with the provisions of that rule.
|
9.
|
Chiquita reserves the right, subject to the prior written approval of the Panel, to effect the Combination by way of a takeover offer in the circumstances described in and subject to the terms of Clause 3.6 of the Transaction Agreement. Without limiting Clause 3.6 of the Transaction Agreement, in such event, such offer will be implemented on terms and conditions that are at least as favourable to the Fyffes Shareholders (except for an acceptance condition set at 80 per cent (80%) of the nominal value of the Fyffes Shares to which such an offer relates and which are not already in the beneficial ownership of Chiquita so far as applicable) as those which would apply in relation to the Scheme.
|
1.
|
Option holdings
|
1.1
|
I am the holder and beneficial owner of Fyffes Options, complete and accurate details of which are set out in Appendix B to this undertaking (the “Fyffes Options”);
|
1.2
|
I hold Fyffes Options free of any encumbrances or third party rights of any kind whatsoever (other than the rights of Fyffes set forth in the documents evidencing Fyffes Options);
|
1.3
|
I have full power and authority, and the right (free from any legal or other restrictions), and will at all times continue to have all relevant power and authority and the right, to enter into and perform my obligations under this undertaking.
|
1.4
|
I undertake to Fyffes, Chiquita and ChiquitaFyffes that before this undertaking lapses as provided herein, I shall not exercise or purport to exercise any Fyffes Options which are or which become capable of being exercised under the terms of the Fyffes Option Scheme.
|
2.
|
Undertaking to vote in favour of and consent to the Fyffes Option Scheme Rule Change
|
2.1
|
I irrevocably consent to the changes to the Rules of the Fyffes Option Scheme contained in Appendix C to this Deed (the “Fyffes Option Scheme Rule Change”) for all purposes and acknowledge that this Deed constitutes my written consent for the purposes of rule 18 of the Fyffes Option Scheme and article 5 of the articles of association of Fyffes.
|
2.2
|
I irrevocably undertake to Fyffes, Chiquita and ChiquitaFyffes that:
|
|
(a)
|
I shall exercise all voting rights attaching to the Fyffes Options, conferred or deemed conferred by Rule 18 of the Fyffes Option Scheme, to vote in favour of all resolutions to approve the Fyffes Option Scheme Rule Change, and any related matters, proposed at any meeting of the holders of Fyffes Options to be convened and held in connection with the Fyffes Option Scheme Rule Change, or at any adjournment of any such meeting (the “Meeting”);
|
|
(b)
|
I shall execute any forms of proxy in respect of the Fyffes Options required by Fyffes validly appointing the Chairman of the Meeting or any person nominated by Fyffes to attend and vote at any Meeting in respect of the resolutions to approve the Fyffes Option Scheme Rule Change, and any related matters, and shall ensure that any such executed forms of proxy are received by the Fyffes registrars not later than 48 hours prior to the time of the Meeting;
|
|
(c)
|
I shall not revoke the terms of any proxy submitted in accordance with paragraph 2.2, either in writing or by attendance at any Meeting or otherwise;
|
2.3
|
Without limitation or prejudice to paragraphs 2.1 and 2.2, I irrevocably consent and agree that at all times (unless this undertaking lapses in accordance with paragraph 5), the rights in respect of each Fyffes Option shall be treated and qualified for all purposes as if the Fyffes Option Scheme Rule Change was in full force and effect and I irrevocably waive all rights, claims, interests and entitlements in respect of Fyffes Options arising during the period prior to such date that would be amended, terminated or extinguished upon the Fyffes Option Scheme Rule Change taking full force and effect.
|
3.
|
Documentation
|
3.1
|
I consent to this undertaking being disclosed to the Panel and this undertaking being available for inspection as required by the Takeover Rules.
|
4.
|
The Transaction
|
5.
|
Lapse of undertaking
|
5.1
|
This undertaking shall lapse at the time which is the earlier to occur of the following:
|
|
(a)
|
the time at which the Fyffes Option Scheme Rule Change becomes effective; or
|
|
(b)
|
the Transaction Agreement (as defined in the Press Announcement and contained in an appendix to the Press Announcement) is terminated for any reason in accordance with its terms.
|
5.2
|
If this undertaking lapses, I shall have no claim against any of Fyffes, Chiquita or ChiquitaFyffes with respect to this undertaking.
|
6.
|
Governing Law
|
7.
|
Specific performance
|
SIGNED and DELIVERED as a DEED
by
in the presence of:
|
____________________________
|
||
Witness Signature:
Witness Name:
Witness Address:
Witness Occupation:
|
____________________________
____________________________
____________________________
____________________________
____________________________
|
Date of Grant
|
Number of Shares
|
Exercise price
€ cent
|
Exercise period
|
26 September 2007
|
92.5
|
||
7 September 2009
|
45.2
|
||
1 October 2012
|
48.3
|
1. 1.
|
Definitions
|
|
(a) (a)
|
In the Scheme the following expressions bear the following meanings:-
|
“Accounting Period”
|
any period in respect of which the Company prepares an annual report and financial statements;
|
|
the “Adoption Date”
|
12th June, 2007;
|
|
“Annual Remuneration”
|
the gross annual remuneration (including directors’ fees) paid or payable by the Company and/or any Subsidiary to an Eligible Person;
|
|
the “Auditors”
|
the auditors for the time being of the Company;
|
|
“Basis Year”
|
the most recent Accounting Period ended before the date of grant of an Option;
|
|
the “Board”
|
the board of directors for the time being of the Company;
|
|
the “Chiquita Offer Period”
|
the offer period within the meaning of the Irish Takeover Rules in respect of an offer (including by scheme of arrangement under section 201 of the Companies Act 1963) for the entire issued and to be issued share capital of the Company by Chiquita International Brands Inc. substantially on the terms and subject to the conditions set out in the Chiquita Press Announcement;
|
|
the “Chiquita Press Announcement”
|
the announcement issued by the Company and Chiquita International Brands Inc. pursuant to Rule 2.5 of the Irish Takeover Rules on on or around 10 March 2014;
|
|
the “Chiquita Restricted Period”
|
has the meaning given to it in Clause 7(g);
|
|
the “Chiquita Transaction Agreement”
|
the transaction agreement between, inter alia, the Company and Chiquita International Brands Inc. executed on or around 10 March 2014, the terms of
|
which are set out in an appendix to the Chiquita Press Announcement;
|
||
the “Company”
|
Fyffes plc;
|
|
“Compensation Committee”
|
a duly constituted committee of the Board of which committee no director is a member if he has been, or it is intended that he shall be, granted any Option;
|
|
“Control”
|
has the same meaning as in Section 432 of the Taxes Consolidation Act, 1997;
|
|
“CPI”
|
the Consumer Price Index compiled and published by the Central Statistics Office of the Government of Ireland (Base 100 in mid-November, 1968);
|
|
“Eligible Person”
|
any employee (including any director holding an executive office) in the service of any one or more Participating Companies who shall have at least two years’ service to complete before his normal retirement date and who devotes substantially the whole of his business time thereto, and (in the case of such a director as aforesaid) normally devotes at least 25 hours per week (excluding meal breaks) to the duties of his office(s), and (in the case of an employee who is not such a director as aforesaid), is required under the terms of his employment to work for such Participating Company/ies for at least 20 hours per week;
|
|
“EPS”
|
the consolidated adjusted earnings per share of the Company for the Accounting Period concerned as shown in the annual report issued by the Company for such Accounting Period or as extracted from a summary contained in the most recent annual report issued by
|
the Company;
|
||
“Health Reasons”
|
reasons of ill-health (including disability) which, as certified by a medical practitioner, compel a Participant to discontinue or to alter the nature of the work or services which he performs;
|
|
“IAIM Guidelines”
|
the March 1999 Corporate Governance, Share Option and other Incentive Scheme Guidelines of the Irish Association of Investment Managers;
|
|
“Irish Takeover Rules”
|
the Irish Takeover Panel Act, 1997, Takeover Rules, 2013;
|
|
the “Market Price”
|
the mid-market price (or, if it is not available the closing price) on The Irish Stock Exchange Limited of a fully paid Share on the dealing day last preceding the day upon which the Compensation Committee decides to grant the relevant Option or (if no such price is available in respect of such date) the last such date in respect of which such a price is available, as shown by the Daily Official List of The Irish Stock Exchange Limited provided that, if the Market Price as determined as aforesaid is less than the nominal value of a Share, then the Market Price shall be increased to such amount as shall be equal to such nominal value;
|
|
“Option”
|
an option granted pursuant to the Scheme;
|
|
“Option Certificate”
|
a document evidencing an Option in such form as the Compensation Committee shall determine;
|
|
“Option Price”
|
the price at which Shares must be subscribed on the exercise of an Option as determined pursuant to Clause 6 hereof;
|
|
“Participant”
|
an Eligible Person who is for the time being the holder of an Option;
|
|
“Participating Company”
|
the Company and any Subsidiary which is for the time being nominated by the
|
Compensation Committee to be a Participating Company;
|
||
|
in respect of any Eligible Person means the greatest of:-
(i) the Annual Remuneration of such Eligible Person for the current Year of Assessment; or
(ii) the Annual Remuneration of such Eligible Person for the preceding Year of Assessment; or
(iii) (if such Eligible Person had no Annual Remuneration for the preceding Year of Assessment) the Annual Remuneration of such Eligible Person for the twelve month period beginning on the first day in the current Year of Assessment for which he had Annual Remuneration;
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the “Scheme”
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the Fyffes 2007 Share Option Scheme consisting of these presents as amended from time to time in accordance with the provisions in that regard herein contained;
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“Scheme Shares”
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such Shares as are issued pursuant to this Scheme;
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“Shares”
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the ordinary shares for the time being in the capital of the Company;
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“Subsidiary”
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a company or body corporate which is a subsidiary of the Company within the meaning of Section 155 of the Companies Act, 1963;
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“Year of Assessment”
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a period of twelve months ending on 31st December.
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(b) (i)(b)
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(i)
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Any reference to a provision of any legislation shall include a reference to any modification re-enactment or extension of such legislation.
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(ii) (ii)
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The masculine gender shall include the feminine and neuter and the singular number shall include the plural and vice versa and words importing persons shall include firms or companies.
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2. 2.
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Eligibility for Participation
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(a) (a)
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Participation in the Scheme will be available for such Eligible Persons as shall be nominated for the purpose by the Compensation Committee.
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(b) (b)
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No person shall be entitled as of right to participate in the Scheme and the decision as to who shall have the opportunity of participating and the time and extent of his participating will, subject to the Scheme, be made by the Compensation Committee at its absolute discretion.
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(c) (c)
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Options may only be granted to Eligible Persons who shall have at least two years’ service to complete before their normal retirement date, or such shorter period (being not less than six months) as may be specified from time to time in the guidelines published by the IAIM.
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(d) (d)
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No Option shall be granted to a director of the Company who is not also an Eligible Person within the meaning of paragraph (i) of the definition of that expression.
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3. 3.
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Limitation on Participation
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(a) (a)
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No Option shall be capable of being acquired under the Scheme more than ten years after the Adoption Date.
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(b) (b)
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Except where replacement Options are to be granted as permitted by paragraph 16(ii) of the IAIM Guidelines, no Option shall be granted to a Participant if immediately following such grant the aggregate of the Option Prices of Options granted to such Participant under the Scheme together with the aggregate of option prices of options granted to such Participant under any other share option scheme of any Participating Company within the preceding ten years would exceed eight times, where the provisions of sub-clauses (b) and (c) of Clause 7 apply, or four times, where the provisions of sub-clause (b) of Clause 7 apply, such Participant’s Relevant Remuneration.
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(c) (c)
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The Compensation Committee may in accordance with the terms of the Scheme review from time to time the range and extent of participation in the Scheme in the light of changes in personnel, levels of remuneration, performance of non-participants and other factors which such The Compensation Committee considers relevant.
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4. 4.
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Limitations on Grants of Options
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(a) (a)
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The number of Shares for which Options to subscribe may be granted under the Scheme shall be subject to the 10% guideline limit recommended in paragraph 5 of the IAIM Guidelines.
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(b) (b)
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The number of Shares for which Options to subscribe may be granted under the Scheme and to which sub-clause 7(b) applies, shall not, when added to the number of Shares which shall have been or remain to be issued pursuant to Options granted under the Scheme, or pursuant to options granted under
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(c) (c)
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The number of Shares for which Options to subscribe may be granted under the Scheme, and to which sub-clause 7(c) applies, shall not, when added to the number of Shares which shall have been or remain to be issued pursuant to Options granted under the Scheme, or pursuant to options granted under any other share option scheme relating to Shares (being options to which the requirements of sub-clause 7(c) apply) exceed such number of Shares as represents 5 per cent. of the ordinary share capital of the Company in issue.
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(d) (d)
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The number of Shares for which Options to subscribe may be granted under the Scheme in any period of three successive calendar years shall not, when added to the number of Shares which shall have been or remain to be issued pursuant to options granted during the same period under any other share option scheme relating to Shares, exceed such number of Shares as represents 3 per cent. of the ordinary share capital of the Company in issue.
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(e) (e)
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In applying the above limits in respect of the proposed grant of an Option, no account shall be taken of any Shares:-
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(i) (i)
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which were the subject of options or Options granted more than ten years prior to the day upon which the relevant Option is to be granted; or
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(ii) (ii)
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which were the subject of options granted under any save as you earn scheme unless otherwise required by paragraph 20 of the IAIM Guidelines; or
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(iii) (iii)
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where the right to acquire such shares lapsed or otherwise became incapable of exercise.
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5. 5.
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Grant of Options
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(a) (a)
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Subject to sub-clause (b) below, the Compensation Committee may at any time and from time to time while the Scheme is in operation grant Options to such Eligible Persons as may be nominated by it to subscribe at the Option Price for such number of Shares as the Compensation Committee may from time to time specify upon the terms set out in the Scheme.
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(b) (b)
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No option may be granted by the Compensation Committee except within the 42 day period immediately following publication of any annual or half-yearly results of the Company; provided however that, in the event of there being an embargo on dealings in Shares by virtue of The Stock Exchange Model Code for Securities Transactions by Directors of Listed Companies and such embargo as aforesaid having effect during any such 42 day period, an Option may in any case be granted within the 14 day period immediately following the day on which such embargo ceases to have effect.
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(c) (c)
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An Option shall be granted by the execution by the Company of a certificate ("Option Certificate") as a deed. The date of grant ("Date of Grant") of the Option shall be the earlier of the date on which the Company executes the certificate or such date as shall be specified by the Compensation Committee provided that the Compensation Committee shall not specify a date which shall be earlier than the date on which it resolved to grant the Option.
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(d) (d)
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Every such grant may also be conditional upon the person to whom it is addressed entering into an agreement with the Company in relation to such Option within such time and in such form and content as the Compensation Committee may require. If such person fails to enter into such agreement within the time so specified the grant shall be deemed to have been declined.
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(e) (e)
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Each Option shall be personal to the Participant and shall be non-assignable (save in accordance with the provisions of Clause 9 hereof) provided, however, that a Participant may, with the prior approval of the Compensation Committee, assign, mortgage, pledge, grant an option over or otherwise dispose of an Option in favour of a bank or financial institution so that such Option may then be capable of being exercised by such bank or financial institution.
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(f) (f)
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At any time when no Shares are listed on The Stock Exchange (or, as the case may be, the Irish Stock Exchange in Dublin) the shareholders in general meeting may exercise the power of the Compensation Committee to grant Options which is conferred by this Clause (but without prejudice to the power of the Compensation Committee itself to do so), in which case all references in this Clause to the Compensation Committee shall be construed accordingly.
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6. 6.
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Option Price
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7. 7.
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Exercise of Options
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(a) (a)
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No Option shall be capable of being exercised more than 10 years after the date upon which it was granted or before the expiration of three years (or, where sub- clause (c) below applies, five years) after the date upon which it was granted. Subject as aforesaid and subject also to the other terms hereof, an Option may be exercised in whole or in part (being 100 Shares or a multiple thereof or less if the exercise in question is a final exercise) at any time or times after the date on which it was granted. No Option shall be
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exercisable unless the condition specified in sub-clause (b) or, as the case may be, subclause (c) below is satisfied.
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(b) (b)
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Except where sub-clause (c) below applies to the Option, the condition referred to in sub-clause (a) above is that the Company’s EPS in respect of the third or any subsequent Accounting Periods after the end of the Basis Year (“the Relevant Accounting Periods”) is greater than the Company’s EPS for the Basis Year by a percentage which is not less than, on a year on year basis, the annual percentage increase in CPI plus 5%, compounded, during that period. To determine the annual percentage growth in CPI, CPI published most recently before the end of the Relevant Accounting Periods shall be compared against the CPI published most recently before the end of the Basis Year (“Basis Year CPI”) and the difference shall be expressed as a percentage of the Basis Year CPI.
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(c) (c)
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If the Compensation Committee shall have determined before the grant of the Option that this sub-clause shall apply to such Option, the condition referred to in sub-clause (a) above is that the Company’s EPS in respect of the fifth or any subsequent Accounting Periods after the end of the Basis Year (“the Relevant Accounting Periods”) is greater than the Company’s EPS for the Basis Year by a percentage which is not less than, on a year on year basis, the annual percentage increase in CPI plus 10%, compounded, during that period. To determine the annual percentage growth in CPI, CPI published most recently before the end of the Relevant Accounting Periods shall be compared against the CPI published most recently before the end of the Basis Year (“Basis Year CPI”) and the difference shall be expressed as a percentage of the Basis Year CPI.
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(d) (d)
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The Compensation Committee shall determine whether the conditions as laid down in sub-clause (b) and (c) of this Clause 7 shall have been met and, in particular, shall determine the Company’s EPS for such purposes and shall adjust the Company’s EPS for the Basis Year and each subsequent Accounting Period to the extent considered appropriate by the Compensation Committee for any material change in the business of the Company, its accounting policies or share capital in order to put the calculation of the Company’s EPS for the Basis Year and for any subsequent Accounting Period(s) on a broadly comparable basis; provided, however, the Compensation Committee shall have consulted with the Auditors as to whether the Company’s EPS shall be adjusted as aforesaid. As the business of the Company has been significantly altered since the 2006 Accounting Period, as a consequence of the demerger of its General Produce and Distribution Business, the adjusted EPS of Fyffes’ continuing business of €5.70 cent shall be deemed to be the Company’s EPS for 2006 Accounting Period and this EPS figure shall be applied when determining whether the conditions as laid down in sub- clause (b) and (c) of this Clause 7 shall have been met in respect of any Option that may be granted in 2007.
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(e) (e)
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In the event of the IAIM publishing revised guidelines for executive share schemes, the Compensation Committee will review the performance
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conditions in sub-clauses (b) and (c) above in respect of any Options that may be granted after the date of such revisions.
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(f) (f)
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Where the Compensation Committee decides that there are exceptional circumstances, the Compensation Committee may, in respect of any Option, at its discretion having due regard to that part of applicable performance period which has then expired allow all or part of an Option to be exercised notwithstanding the conditions expressed in subclauses (b) and (c) in a case where the Participant has ceased to hold the office or employment by virtue of which he is eligible to participate in the Scheme by reason of:-
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(i) (i)
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his death;
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(ii) (ii)
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Health Reasons;
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(iii) (iii)
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his dismissal by reason of redundancy;
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(iv) (iv)
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his retirement prior to reaching the normal retirement age; or
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(v) (v)
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the sale by the Fyffes Group of the company or business in which a Participant works.
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(g)
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Notwithstanding Clause 12 and Clause 13 and subject as set out in this Clause 7(g) and Clause 7(h), no Option (including any New Option resulting from an Option) shall be capable of being exercised during the period commencing on the first day of the Chiquita Offer Period and ending on the date which is seven (7) days after the date on which the Combination (as defined in the Chiquita Transaction Agreement) occurs (the “Chiquita Restricted Period”). The restriction on the exercise of Options in this Clause 7(g) shall immediately cease to apply if the Chiquita Transaction Agreement is terminated for any reason in accordance with its terms during the Chiquita Offer Period.
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(h)
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The Compensation Committee may, with the prior written permission of the Option Conversion Committee (as defined in the Chiquita Transaction Agreement), waive the restriction contained in Clause 7(g) in respect of all or some Options (or portions thereof).
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(i)
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Notwithstanding anything in this Scheme to the contrary, the Compensation Committee shall, in the case of any Option which is subject, at the same time, to both Clause 7(g) and any of Clauses 9, 10 or 11, extend the exercise period provided in Clauses 9, 10 or 11, as applicable, in respect of such Option so as to ensure that such Option shall have a reasonable period within which it may be exercised following the expiry of the restriction in Clause 7(g).
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8. 8.
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Scheme Shares
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(a) (a)
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The Company shall during the period in which the Scheme is in operation keep available sufficient unissued Shares to satisfy any outstanding Options.
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(b) (b)
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Scheme Shares issued in respect of the exercise of Options will not rank for dividends payable by reference to a record date falling before the date on
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9. 9.
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Death
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10. 10.
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Retirement
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|
(a) (a)
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because he has retired on or after reaching the normal retirement age in respect of such office or employment; or
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(b) (b)
|
because of Health Reasons; or
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(c) (c)
|
because of the sale by the Fyffes Group of the company or business in which a Participant works
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11. 11.
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Cessation of Office or Employment
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|
(a) (a)
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In the case of termination of the holding of an office or the employment of a Participant for any reason other than by reason of death or as stated in Clause 10 hereof at a time when an Option or part thereof has not been exercised by him, such Option shall automatically lapse unless the Compensation Committee in its absolute discretion decides that such Option, or any portion thereof, shall, subject to the conditions applicable thereto as set out in Clause 7, be exercisable on or after such termination; provided however that no Option shall be exercisable or exercised later than the expiration of the earlier of (i) and (ii) below whichever shall first occur:-
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(i) (i)
|
the tenth anniversary of the date of grant of the Option; or
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(ii) (ii)
|
six months after such termination of the holding of an office or employment.
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(b) (b)
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In no circumstances shall any Participant ceasing to hold such office or employment as aforesaid be entitled to any compensation for any loss of any right or benefit or prospective right or benefit under the Scheme which he might otherwise have enjoyed, whether such compensation is claimed by way of damages for wrongful dismissal or other breach of contract or by way of compensation for loss of office or otherwise howsoever.
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12. 12.
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Offers for Share Capital
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(a) If(a)
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Subject to Clause 7(g), Clause 12(c) and Clause 14, if any person obtains Control of the Company as a result of making an offer to acquire Shares, the Board or the Compensation Committee shall within seven days of becoming aware thereof notify every Participant and may, at the same time, request each such Participant to exercise unexercised Options held by him and each such Participant may, whether so requested or not, subject to the conditions applicable to the exercise of Options as set out herein, exercise unexercised Options held by him (or, as the case may be, those portions of them not already exercised) in relation to the whole or a specified portion of the Shares to which such Options relate and upon and subject to any conditions or limitations as the Board or the Compensation Committee may at its discretion determine.
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(b) (b)
|
In the event of a Participant failing to exercise an Option requested to be exercised by him by the Compensation Committee pursuant to sub-clause (a) hereof, such Option shall be deemed to have lapsed on the expiry of 30 (thirty) days from the date of the offer referred to in sub-clause (a) hereof being declared or becoming unconditional in all respects.
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(c)
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Neither the Board nor the Compensation Committee shall have any obligations under Clause 12(a) and no Options shall be exercisable pursuant to Clause 12(a) in respect of the Scheme Transaction or Offer described in the Chiquita Press Announcement.
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13. 13.
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Reconstruction, Takeover and Winding-up
|
|
(a) In the event of:-
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|
(a)
|
Subject to Clause 7(g) Clause 13(c) and Clause 14, in the event of:-
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(i) (i)
|
any proposal for the reorganisation of the capital of the Company or for the reconstruction or amalgamation of the Company involving a material change in the nature of the Shares comprised in any Option (and for the purposes of this sub-clause the determination by the Board or the Compensation Committee of a material change in the nature of Shares in any particular case shall be final and conclusive and shall be communicated to each Participant in writing); or
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(ii) (ii)
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the Company passing a resolution for its winding-up or an order being made for the compulsory winding-up of the Company (the passing of which resolution or the making of which order shall be
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(b) (b)
|
In the event of a Participant failing to exercise an Option pursuant to sub-clause (a) hereof, such Option shall be deemed to have lapsed.
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(c)
|
Neither the Board nor the Compensation Committee shall have any obligations under Clause 13(a) and no Options shall be exercisable pursuant to Clause 13(a) in respect of the Scheme Transaction or Offer described in the Chiquita Press Announcement, unless the Compensation Committee decides, in its sole and absolute discretion to waive the restriction contained in this Clause 13(c).
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14.
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Rollover of Options; Cash-Out of Options
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(a)
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Rollover of Options
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(b)
|
Terms of the New Options
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(c)
|
Date of grant of New Option
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(d)
|
Application of Scheme to New Option
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(e)
|
Cash-Out of Option
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14. 15.
|
Procedure on Exercise of Options
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|
(a) (a)
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Upon the exercise of an Option in whole or in part the Participant shall pay the Option Price to the Company in respect of the number of Shares over which the said Option has been exercised and shall deliver the Option Certificate to the Company and the Company, as soon as practicable after the receipt by it of the Option Certificate, shall issue the appropriate number of Shares to the Participant and, if appropriate, shall deliver an amended Option Certificate to the Participant. No Option shall be exercised unless the Compensation Committee is satisfied that the circumstances under which such Option becomes exercisable under the terms of this Scheme have arisen.
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(b) (b)
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Where, in relation to an Option granted under the Scheme, the Company or any member of the Group (as the case may be) is liable, or is in accordance with current practice believed by the Compensation Committee to be liable, to account to any revenue or other authority for any sum in respect of any tax or social security liability of the Participant, the Option may not be exercised unless the Participant has beforehand paid to the Company or the member of the Group (as the case may be) an amount sufficient to discharge the liability. Alternatively, the Participant may, by agreement with the Company or the member of the Group (as the case may be) enter into some other arrangement to ensure that such amount is available to them or it (whether by authorising the sale of some or all of the Scheme Shares subject to his Option and the payment to the Company or the member of the Group (as the case may be) of the requisite amount out of the proceeds of sale or otherwise).
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(c) (c)
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Where, in relation to an Option granted under the Scheme, a Participant is liable, or is in accordance with current practice believed by the Compensation Committee to be liable, to account to any revenue or other authority for any sum in respect of any tax or social security liability in respect of the vesting of an Option, the Participant shall be required to sell enough of the shares which he shall receive on the exercise of such Option unless the Participant has satisfied the Company that he already has sufficient funds to discharge the liability. Where the Participant shall be required under this Clause 145(c) to sell some of the shares which he shall receive on the vesting of such Option, the Participant may, by agreement with the Company or the member of the Group (as the case may be) enter into some other arrangement to ensure that they or it are authorised to arrange for the sale of the relevant number of the Scheme Shares which are subject to his Option so as the raise the requisite amount out of the proceeds of sale or otherwise to discharge such liability.
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(d) (d)
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The Company may require a Participant to execute a copy of the Option Certificate or some other document in order to bind himself contractually to any such arrangements as are referred to in Clause 145(b) and (c) and return the executed document to the Company by a specified date. Failure to return the executed document by the specified date shall cause the Option to lapse.
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15. 16.
|
Alteration of Capital
|
|
(a) (a)
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that the Auditors shall have confirmed in writing that in their opinion such adjustment is fair and reasonable; and
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|
(b) (b)
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that in the event that any alteration of capital results in the reduction of the Option Price to less than the nominal value of the Shares, the Option Price shall be increased to the nominal value of such Shares.
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16. 17.
|
Relationship of Scheme to Contract Ofof Employment
|
|
(a) (a)
|
Notwithstanding any other provision of the Scheme:
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|
(i) (i)
|
the Scheme shall not form part of any contract of employment between the Company or any Subsidiary and an Eligible Person;
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|
(ii) (ii)
|
unless expressly so provided in his contract of employment, an Eligible Person has no right to be granted an Option;
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|
(iii) (iii)
|
the benefit to an Eligible Person of participation in the Scheme (including, in particular but not by way of limitation, any Options held by him) shall not form any part of his remuneration or count as his remuneration for any purpose and shall not be pensionable; and
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|
(iv) (iv)
|
if an Eligible Person ceases to be employed within the Group, he shall not be entitled to compensation for the loss of any right or benefit or prospective right or benefit under the Scheme (including, in particular but not by way of limitation, any Options held by him which lapse by reason of his ceasing to be employed within the Group) whether by way of damages for unfair dismissal, wrongful dismissal, breach of contract or otherwise; and
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(v) (v)
|
by accepting the grant of an Option and not renouncing it, a Participant is deemed to have agreed to the provisions of this Clause 167.
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17. 18.
|
Administration Of Scheme
|
|
(a) (a)
|
The Compensation Committee shall be responsible for, and shall have the conduct of, the administration of the Scheme. The Compensation Committee may from time to time make or amend regulations for the
|
|
(b) (b)
|
The decision of the Compensation Committee shall be final and binding in all matters relating to the administration of the Scheme, including but not limited to the resolution of any ambiguity in the rules of the Scheme.
|
|
(c) (c)
|
The Compensation Committee may terminate or from time to time suspend the grant of Options.
|
|
(d) (d)
|
A Participant shall provide to the Company as soon as reasonably practicable such information as the Company reasonably requests for the purpose of complying with its obligations under section 128(11) of Taxes Consolidation Act, 1997.
|
|
(e) (e)
|
The Company may send to Participants copies of any notice or other document sent by the Company to its shareholders generally.
|
|
(f) (f)
|
The cost of introducing and administering the Scheme shall be met by the Company. The Company shall be entitled, if it wishes, to charge an appropriate part of such cost to a Subsidiary whose employees are participating in the Scheme. The Company shall also be entitled, if it wishes, to charge to a Subsidiary the opportunity cost of Scheme Shares transferred to a Participant employed by the Subsidiary following the vesting of his Option.
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18. 19.
|
Amendment Ofof Scheme
|
|
(a) (a)
|
Subject to Clauses 189(b) and (c) the Compensation Committee may from time to time amend (including the adoption of any addendum or sub-Scheme) the rules of the Scheme. Without prejudice to the generality of the forgoing, the Compensation Committee may make an amendment (including the adoption of any addendum or sub Scheme) which is necessary or desirable in order to take account of a change of legislation or to obtain or maintain favourable tax, exchange control or regulatory treatment for participants in the Scheme, the Company or some other member of the Group whether in Ireland or abroad.
|
|
(b) (b)
|
Without the prior approval of the Company in general meeting, an amendment may not be made to:
|
|
(i) (i)
|
the definition of “Eligible Person”;
|
|
(ii) (ii)
|
the limit on the number of Scheme Shares which may be placed under Option under the Scheme.
|
|
(c) (c)
|
An amendment may not adversely affect the rights of an existing Participant except where the amendment has been approved by the existing Participants in such manner as would be required by the Company’s articles of association (with appropriate changes) if the Scheme Shares subject to their
|
|
(d) (d)
|
The Compensation Committee shall, as soon as reasonably practicable, notify each Participant of any amendment to the rules of the Scheme under this Clause 189.
|
19. 20.
|
Notices
|
|
(a) (a)
|
Any notice, document or other communication given by, or on behalf of, the Company or the Compensation Committee to any person in connection with the Scheme shall be deemed to have been duly given if delivered to him at his place of work, if he is employed with the Group, or sent through the post in a pre-paid envelope to the address last known to the Company to be his address and, if so sent, shall be deemed to have been duly given on the date of posting.
|
|
(b) (b)
|
Any notice, document or other communication so sent to a Participant shall be deemed to have been duly given notwithstanding that such Participant is then deceased (and whether or not the Company has notice of his death) except where his personal representatives have established their title to the satisfaction of the Company and supplied to the Company an address to which notices, documents and other communications are to be sent.
|
|
(c) (c)
|
Any notice, document or other communication given to the Company or the Compensation Committee in connection with the Scheme shall be delivered or sent by post to the Company Secretary at the Company’s registered office or such other address as may from time to time be notified to Participants but shall not in any event be duly given unless it is actually received at such address.
|
|
(d) (d)
|
Where the giving of any notice of document by or to the Company or the Compensation Committee in connection with the Scheme would otherwise render this Scheme or the Company subject to any securities laws which the Company in its absolute discretion considers onerous, the Compensation Committee may resolve that the requirement to give such notice or document shall be dispensed with or communicated in some other form or manner.
|
20. 21.
|
Termination
|
|
(a) (a)
|
The Scheme may be terminated any time by ordinary resolution of the Company or by resolution of the Board.
|
|
(b) (b)
|
No such termination of the Scheme under paragraph (a) of this Clause shall affect or modify any subsisting rights or obligations of the Participants in respect of any Options already granted to them and notwithstanding such termination the Company shall continue to do and perform such acts in accordance with the provisions hereof as are necessary for or incidental to the administration and management of outstanding rights and obligations which arose under or by virtue of the Scheme.
|
21. 22.
|
Disputes
|
22. 23.
|
Governing law and Jurisdiction
|
Position
|
Name
|
|
Chief Executive Officer
|
David McCann
|
|
Chief Financial Officer
|
Tom Murphy
|
|
Chief Operating Officer – Fresh Fruit
|
Coen Bos
|
|
Chief Operating Officer – Salads & Healthy Snacks
|
Brian Kocher
|
|
Chief Administrative Officer
|
Kevin Holland
|
|
Chief Legal Officer
|
James E. Thompson
|
|
Corporate Responsibility Officer
|
Manuel Rodriquez
|
1.
|
The name of the Company is ChiquitaFyffes public limited company.
|
2.
|
The Company is to be a public limited company.
|
3.
|
The objects for which the Company is established are:
|
|
(a)
|
To carry on in all their respective branches, all or any of the businesses of importers, exporters, processors, packagers, distributors, or dealers (whether wholesale or retail) in fruit, vegetables, general grocery provisions of any description, patent foods and agricultural produce of every description and to purchase, sell, refine, prepare, grow, import or export (whether on commission or otherwise), deal in all other goods, products, commodities or things which may be deemed advisable for carrying on or developing any of the above named businesses and which are customarily or conveniently dealt with by persons carrying on all or any of the businesses which this Company is authorised to carry on.
|
|
(b)
|
To carry on the businesses of a holding, investment, estate and trust company and to raise money on such terms and conditions as may be thought desirable, and invest the amount thereof in or upon or otherwise acquire and hold shares, stocks, debentures, debenture stocks, bonds mortgages, obligations and securities of any kind issued or guaranteed by any public or private company, corporation or undertaking of whatever nature wherever situated or carrying on business, and shares, stocks, debentures, debenture stocks, bonds, obligations and other securities of Ireland or any other government or authority supreme, municipal, local or otherwise in any part of the world.
|
|
(c)
|
To carry on all or any of the businesses aforesaid either as a separate business or as the principal business of the Company, and to carry on any other business (whether manufacturing or otherwise) which may seem to the Company capable of being conveniently carried on in connection with the above objects or calculated directly or indirectly to enhance the value of or render more profitable any of the Company’s property.
|
|
(d)
|
To acquire the whole of the issued share capital of Fyffes public limited company, a company incorporated under the laws of Ireland (registered number 73342).
|
|
(e)
|
To acquire and hold controlling and other interests in the share or loan capital of any company or companies.
|
|
(f)
|
To import, export, buy, sell, barter, exchange, take on lease, hire or otherwise acquire, alter, treat, process, dispose of, let on lease or hire or otherwise deal in turn and account as may seem to be desirable, goods, equipment, machinery, plant, merchandise and wares of every and any description.
|
|
(g)
|
To acquire, improve, manage, work, develop, exercise all rights in respect of, lease, mortgage, sell, dispose of, turn to account and otherwise deal with property of all kinds, and in particular lands, buildings, concessions and patents.
|
|
(h)
|
To perform any duty or duties imposed on the Company by or under any enactment and, to exercise any power conferred on the Company by or under any enactment.
|
|
(i)
|
To incorporate or cause to be incorporated any one or more subsidiaries of the Company (within the meaning of section 155 of the Companies Act, 1963 or any successor legislation) for the purpose of carrying on any business.
|
|
(j)
|
To acquire and undertake the whole or any part of the business, property and liabilities of any person or company carrying on any business which the Company is authorised to carry on.
|
|
(k)
|
To apply for, purchase or otherwise acquire any patents, trade markets, brevets d’invention, licences, concessions and the like conferring any rights of any sort to use or any secret or other information as to any invention which may seem capable of being used for any of the purposes of the Company or the acquisition of which may seem calculated directly or indirectly to benefit the Company, and to use, exercise, develop or grant licences in respect of or otherwise turn to account the property rights or information so acquired.
|
|
(l)
|
To enter into partnership or into any arrangement for sharing profits, union of interests, co-operation, joint venture, reciprocal concession or otherwise with any person or company carrying on or engaged in or about to carry on or engage in any business or transaction which the Company is authorised to carry on or engage in or any business or transaction capable of being conducted so as directly or indirectly to benefit the Company.
|
|
(m)
|
To purchase or otherwise acquire shares and securities of the Company or any company and to sell, hold, re-issue or otherwise deal with the same.
|
|
(n)
|
To enter into any arrangements with any Governments or authorities, supreme, municipal, local or otherwise, that may seem conducive to the Company’s objects or any of them and to obtain from any such Government or authority any rights, privileges and concessions which the company may think it desirable to obtain and to carry out, exercise and comply with any such arrangements, rights, privileges and concessions.
|
|
(o)
|
To establish and support or aid in the establishment and support of associations, institutions, funds, trusts and conveniences calculated to benefit directors and ex-directors, employees or ex-employees of the Company and its subsidiaries or the dependents or connections of such persons and (without prejudice to the generality of the foregoing) to grant gratuities, pensions or allowances on retirement or death to or in respect of any such persons.
|
|
(p)
|
To establish and contribute to any scheme for the purchase by trustees of shares in the Company to be held for the benefit of directors and ex-directors, employees or ex-employees of the Company and its subsidiaries and to lend or otherwise provide
|
|
(q)
|
To establish any scheme or otherwise to provide for the purchase by or on behalf of customers of the Company of shares in the Company.
|
|
(r)
|
To promote any company or companies for the purpose of acquiring all or any of the assets and liabilities of the Company or for any other purpose which may seem directly or indirectly calculated to benefit the Company.
|
|
(s)
|
Generally to purchase, take on lease or in exchange, hire or otherwise acquire any real and personal property and any rights or privileges which the Company may think necessary or convenient for the purposes of its business.
|
|
(t)
|
To develop and turn to account any land acquired by the Company or in which it is interested and in particular by laying out and preparing the same for building purposes, constructing, altering, pulling down, decorating, maintaining, fitting up and improving buildings and conveniences, letting on building leases or building agreements and by advancing money to and entering into contracts and arrangements of all kinds with builders, tenants and others.
|
|
(u)
|
To construct, maintain and alter any building or works necessary or convenient for any of the purposes of the Company.
|
|
(v)
|
To invest and deal with the monies of the Company not immediately required in such manner as may from time to time be determined.
|
|
(w)
|
To lend and advance money or give credit to such persons or companies whether with or without security and on such terms as may seem expedient, and in particular to customers and others having dealings with the Company; and to give guarantees or become security for any liabilities or obligations (present or future) of any persons or companies and generally to give any guarantees, indemnities and security on such terms and conditions as the Company may think fit.
|
|
(x)
|
To borrow or raise or secure the payment of money (including money in a currency other than the currency of the State) in such manner as the Company shall think fit and in particular by the issue of debentures or debenture stock, perpetual or otherwise, charged upon all or any of the Company’s property, both present and future, including its uncalled capital and to purchase, redeem or pay off any such securities.
|
|
(y)
|
To enter into any guarantee, contract of indemnity or suretyship and to assure, support or secure with or without consideration or benefit the performance of any obligations of any person or persons and to guarantee the fidelity of individuals filling or about to fill situations of trust or confidence.
|
|
(z)
|
To guarantee, support or secure, whether by personal covenant or by mortgaging or charging all or any part of the undertaking, property and assets (both present and future) and uncalled capital of the Company, or by both such methods, the performance of the obligations of, and the repayment or payment of the principal amounts of and premiums, interest and dividends on any security (including any
|
|
(aa)
|
To engage in currency exchange, interest rate and/or commodity or index linked transactions (whether in connection with or incidental to any other contract, undertaking or business entered into or carried on by the Company or whether as an independent object or activity) including, but not limited to, dealings in foreign currency, spot and forward rate exchange contracts, futures, options, forward rate agreements, swaps, caps, floors, collars, commodity or index linked swaps and any other foreign exchange, interest rate or commodity or index linked arrangements and such other instruments as are similar to or derive from any of the foregoing whether for the purpose of making a profit or avoiding a loss or managing a currency or interest rate exposure or any other purpose and to enter into any contract for and to exercise and enforce all rights and powers conferred by or incidental, directly or indirectly, to such transactions or termination of any such transactions.
|
|
(bb)
|
To remunerate any person or company for services rendered or to be rendered in placing or assisting to place or guaranteeing the placing of any of the shares of the Company’s capital or any debentures, debenture stock or other securities of the Company or in or about the formation or promotion of the Company or the conduct of its business.
|
|
(cc)
|
To accept stock or shares in or debentures, mortgages or securities of any other company in payment or part payment for any services rendered or for any sale made to or debt owing from any such company, whether such shares shall be wholly or partly paid up.
|
|
(dd)
|
To draw, make, accept, endorse, discount, execute and issue promissory notes, bills of exchange, bills of lading, warrants, debentures and other negotiable or transferable instruments.
|
|
(ee)
|
To undertake and execute any trusts the undertaking whereof may seem desirable and either gratuitously or otherwise.
|
|
(ff)
|
To pay all costs, charges and expenses incurred or sustained in or about the promotion or establishment of the Company or which the Company shall consider to be preliminary thereto and to issue shares as fully or in part paid up, and to pay out of the funds of the Company all brokerage.
|
|
(gg)
|
To enter into and carry into effect any arrangement for joint working in business or for sharing in profits or for amalgamation with any other company or association or any partnership or person carrying on any business within the objects of the Company.
|
|
(hh)
|
To sell or dispose of the undertaking of the Company or any part thereof for such consideration as the Company may think fit, and including for shares, debentures or securities of any other company having objects altogether or in part similar to those of the Company.
|
|
(ii)
|
To make or receive gifts by way of capital contribution or otherwise.
|
|
(jj)
|
To adopt such means of making known the products and services of the Company as may seem expedient and in particular by advertising in the press, by circulars, by purchase and exhibition of works of art or interest, by publication of books and periodicals and by granting prizes, rewards and donations.
|
|
(kk)
|
To obtain any enactment for enabling the Company to carry any of its objects into effect or for effecting any modification of the Company’s constitution or for any other purpose which may seem expedient and to oppose any proceedings or applications which may seem calculated directly or indirectly to prejudice the Company’s interests.
|
|
(ll)
|
To procure the Company to be registered or recognised in any country or place.
|
|
(mm)
|
To sell, improve, manage, develop, exchange, lease, mortgage, enfranchise, dispose of, turn to account or otherwise deal with all or any of the property and rights of the Company.
|
|
(nn)
|
To promote freedom of contract, and to resist, insure against, counteract and discourage interference therewith, to join any lawful federation, union or association or do any other lawful act or thing with a view to preventing or resisting directly or indirectly any interruption of or interference with the Company’s or any other trade or business or providing or safeguarding against the same, or resisting or opposing any strike, movement or organisation, which may be thought detrimental to the interests of the Company or its employees and to subscribe to any association or fund for any such purposes.
|
|
(oo)
|
To grant bonuses to any person or persons who are or have been in the employment of the Company.
|
|
(pp)
|
To grant, convey, transfer or otherwise dispose of any property or asset of the Company of whatever nature or tenure for such price, consideration, sum or other return whether equal to or less than the market value thereof and whether by way of the gift or otherwise the Directors shall deem fit and to grant any fee farm grant or lease or to enter into any agreement for letting or hire of any such property or assets for a rent or return equal to or less than the market or rack rent thereof or at no rent and subject to or free from covenants and restrictions as the Directors shall deem appropriate.
|
|
(qq)
|
To carry on all or any of the businesses aforesaid either as a separate business or as the principal business of the Company, and to carry on any other business (whether manufacturing or otherwise) which may seem to the Company capable of being conveniently carried on in connection with the above objects or calculated directly or indirectly to enhance the value of or render more profitable any of the company’s property or rights.
|
|
(rr)
|
To do all or any of the above things in any part of the world and as principals, agents, contractors, trustees or otherwise and by or through trustees, agents or otherwise and either alone or in conjunction with others.
|
|
(ss)
|
To distribute any of the property of the Company in specie among the members.
|
|
(tt)
|
To the extent that the same is permitted by law, to give, whether directly or indirectly, and whether by means of a loan, guarantee, the provision of security or otherwise, any financial assistance for the purpose of or in connection with a purchase or subscription made or to be made by any person of or for any shares in the Company
|
|
(uu)
|
To do anything which appears to the Company to be requisite, advantageous or incidental to, or which appears to the Company to facilitate, either directly or indirectly, the attainment of the above objects or any of them.
|
|
NOTE:
|
It is hereby declared that the word “Company” in this clause, except where used in reference to this Company shall be deemed to include any partnership or other body of persons whether incorporated or not incorporated and whether domiciled in Ireland or elsewhere.
|
4.
|
The liability of the members is limited.
|
5.
|
The share capital of the Company is [€40,000 divided into 40,000 Deferred Shares of €1.00 each (the “Deferred Shares”)] and [US$[ l ]/€[ l ]] divided into [ l ] Ordinary Shares of [US$[ l ]/€[ l ]] each (the “Ordinary Shares”).
|
6.
|
The shares forming the capital, increased or reduced, may be increased or reduced and be divided into such classes and issued with any special rights, privileges and conditions or with such qualifications as regards preference, dividend, capital, voting or other special incidents, and be held upon such terms as may be attached thereto or as may from time to time be provided by the original or any substituted or amended articles of association and regulations of the Company for the time being, but so that where shares are issued with any preferential or special rights attached thereto such rights shall not be alterable otherwise than pursuant to the provisions of the Company’s articles of association for the time being.
|
Names, Addresses and descriptions of Subscribers
|
Number of Shares taken by each Subscriber.
|
|
MFSD Nominees Limited
Riverside One
Sir John Rogerson’s Quay
Dublin 2
Body Corporate
__________________________
Director
Name: Garreth O’Brien
|
One
|
Signature:
|
||
Name:
|
Stephen D’Ardis
|
|
Address:
|
Riverside One
Sir John Rogerson’s Quay
Dublin 2
|
1
|
Interpretation
|
1
|
||
2
|
Share capital
|
6
|
||
3
|
Rights of shares on issue
|
7
|
||
4
|
Redeemable shares
|
7
|
||
5
|
Variation of rights
|
7
|
||
6
|
Trusts not recognised
|
8
|
||
7
|
Disclosure of interests
|
8
|
||
8
|
Allotment of shares
|
10
|
||
9
|
Payment of commission
|
12
|
||
10
|
Payment by instalments
|
12
|
||
11
|
Issue of certificates
|
12
|
||
12
|
Replacement of certificates
|
12
|
||
13
|
Extent of lien
|
13
|
||
14
|
Power of sale
|
13
|
||
15
|
Power to effect transfer
|
13
|
||
16
|
Proceeds of sale
|
13
|
||
17
|
Liability on Shares
|
13
|
||
18
|
Making of calls
|
14
|
||
19
|
Time of call
|
15
|
||
20
|
Liability of joint Holders
|
15
|
||
21
|
Interest on calls
|
15
|
||
22
|
Instalments treated as calls
|
15
|
||
23
|
Power to differentiate
|
15
|
||
24
|
Interest on moneys advanced
|
15
|
||
25
|
Notice requiring payment
|
15
|
||
26
|
Power of disposal
|
16
|
27
|
Effect of forfeiture
|
16
|
||
28
|
Statutory declaration
|
16
|
||
29
|
Payment of sums due on share issues
|
17
|
||
30
|
Surrender of shares
|
17
|
||
31
|
Conversion of shares into stock
|
17
|
||
32
|
Transfer of stock
|
17
|
||
33
|
Rights of stockholders
|
17
|
||
34
|
Form of instrument of transfer
|
17
|
||
35
|
Execution of instrument of transfer
|
17
|
||
36
|
Refusal to register transfers
|
18
|
||
37
|
Procedure on refusal
|
19
|
||
38
|
Closing of transfer books
|
19
|
||
39
|
Absence of registration fees
|
19
|
||
40
|
Retention of transfer instruments
|
19
|
||
41
|
Renunciation of allotment
|
20
|
||
42
|
Death of a member
|
20
|
||
43
|
Transmission on death or bankruptcy
|
20
|
||
44
|
Rights before registration
|
20
|
||
45
|
Increase of capital
|
20
|
||
46
|
Consolidation, sub-division and cancellation of capital
|
21
|
||
47
|
Fractions on consolidation
|
21
|
||
48
|
Purchase of own shares
|
21
|
||
49
|
Reduction of capital
|
22
|
||
50
|
General Meetings outside the State
|
22
|
||
51
|
Annual general meetings
|
22
|
||
52
|
Extraordinary general meetings
|
22
|
||
53
|
Convening general meetings
|
22
|
54
|
Class meetings
|
22
|
||
55
|
Notice of general meetings
|
23
|
||
56
|
Quorum for general meetings
|
23
|
||
57
|
Special business
|
24
|
||
58
|
Chairman of general meetings
|
24
|
||
59
|
Directors’ and Auditors’ right to attend general meetings
|
24
|
||
60
|
Adjournment of general meetings
|
24
|
||
61
|
Determination of resolutions
|
24
|
||
62
|
Entitlement to demand poll
|
25
|
||
63
|
Taking of a poll
|
25
|
||
64
|
Votes of members
|
25
|
||
65
|
Voting by joint Holders
|
25
|
||
66
|
Voting by incapacitated Holders
|
26
|
||
67
|
Default in payment of calls
|
26
|
||
68
|
Restriction of voting rights
|
26
|
||
69
|
Time for objection to voting
|
27
|
||
70
|
Appointment of proxy
|
27
|
||
71
|
Bodies corporate acting by representatives at meetings
|
28
|
||
72
|
Receipt of proxy appointment
|
28
|
||
73
|
Effect of proxy appointment
|
29
|
||
74
|
Effect of revocation of proxy or of authorisation
|
29
|
||
75
|
Number of Directors
|
29
|
||
76
|
Share qualification
|
29
|
||
77
|
Ordinary remuneration of Directors
|
29
|
||
78
|
Special remuneration of Directors
|
30
|
||
79
|
Expenses of Directors
|
30
|
||
80
|
Alternate Directors
|
30
|
81
|
Directors’ powers
|
31
|
||
82
|
Power to delegate and appoint Committees
|
31
|
||
83
|
Appointment of attorneys
|
32
|
||
84
|
Local management
|
32
|
||
85
|
Borrowing powers
|
32
|
||
86
|
Execution of negotiable instruments
|
33
|
||
87
|
Appointment of Directors
|
33
|
||
88
|
Nomination of Directors
|
34
|
||
89
|
Disqualification of Directors
|
36
|
||
90
|
Removal of Directors
|
36
|
||
91
|
Executive offices
|
36
|
||
92
|
Directors’ interests
|
37
|
||
93
|
Restriction on Directors’ voting
|
38
|
||
94
|
Entitlement to grant pensions
|
40
|
||
95
|
Convening and regulation of Directors’ meetings
|
40
|
||
96
|
Quorum for Directors’ meetings
|
41
|
||
97
|
Voting at Directors’ meetings
|
41
|
||
98
|
Telecommunication meetings
|
41
|
||
99
|
Chairman of the board of Directors
|
41
|
||
100
|
Validity of acts of Directors
|
41
|
||
101
|
Directors’ resolutions or other documents in writing
|
42
|
||
102
|
Appointment of secretary
|
42
|
||
103
|
Use of Seal
|
42
|
||
104
|
Seal for use abroad
|
43
|
||
105
|
Signature of sealed instruments
|
43
|
||
106
|
Declaration of dividends
|
43
|
||
107
|
Interim and fixed dividends
|
43
|
108
|
Payment of dividends
|
44
|
||
109
|
Deductions from dividends
|
44
|
||
110
|
Dividends in specie
|
44
|
||
111
|
Dividend payment mechanism
|
44
|
||
112
|
Dividends not to bear interest
|
45
|
||
113
|
Payment to Holders on a particular date
|
45
|
||
114
|
Unclaimed dividends
|
45
|
||
115
|
Reserves
|
45
|
||
116
|
Accounts
|
46
|
||
117
|
Capitalisation of distributable profits and reserves
|
47
|
||
118
|
Capitalisation of non-distributable profits and reserves
|
49
|
||
119
|
Implementation of capitalisation issues
|
49
|
||
120
|
Notices in writing
|
49
|
||
121
|
Service of notices
|
49
|
||
122
|
Service on joint Holders
|
51
|
||
123
|
Service on transfer or transmission of shares
|
51
|
||
124
|
Signature to notices
|
51
|
||
125
|
Deemed receipt of notices
|
51
|
||
126
|
Distribution on winding up
|
51
|
||
127
|
Sale by a liquidator
|
52
|
||
128
|
Distribution in specie
|
52
|
||
129
|
Minutes of meetings
|
52
|
||
130
|
Inspection and secrecy
|
53
|
||
131
|
Closing Register of Holders or Fixing Record Date
|
53
|
||
132
|
Destruction of records
|
53
|
||
133
|
Untraced shareholders
|
54
|
||
134
|
Indemnity
|
55
|
1.
|
Interpretation
|
|
(a)
|
The regulations contained in Table A in the first schedule to the Companies Act, 1963 shall not apply to the Company.
|
|
(b)
|
In these Articles the following expressions shall have the following meanings:
|
“1963 Act”
|
the Companies Act, 1963;
|
|
“1983 Act”
|
the Companies (Amendment) Act, 1983;
|
|
“1996 Regulations”
|
the Companies Act, 1990 (Uncertificated Securities) Regulations, 1996, S.I. No. 68 of 1996, including any modification thereof or any regulations in substitution thereof made under Section 239 of the 1990 Act and for the time being in force;
|
|
“1990 Act”
|
the Companies Act, 1990;
|
|
“Acts”
|
the Companies Acts 1963 to 2013;
|
|
“address”
|
includes any number or address used for the purposes of communication by way of electronic mail or other electronic communication;
|
|
“advanced electronic signature”
|
the meaning given to that expression in the Electronic Commerce Act, 2000;
|
|
“Affiliate”
|
of any person means any other person that directly or indirectly controls, is controlled by, or is under common control with, such person;
|
|
“Approved Nominee”
|
means a person appointed under contractual arrangements with the Company to hold Shares or rights or interests in Shares on a nominee basis including, without limitation, in connection with the provision of depository, system operator and/or book-entry transfer services;
|
|
“Articles”
|
these articles of association as from time to time and for the time being in force;
|
|
“Auditors”
|
the auditors for the time being of the Company;
|
|
“Chiquita”
|
Chiquita Brands International Inc;
|
“Chiquita Directors”
|
those Directors appointed in accordance with Article 87(a)(i) of these Articles including any person who becomes a Chiquita Director in accordance with Article 87(a) on the retirement of any such Director;
|
|
“Clear Days”
|
in relation to the period of a notice, that period excluding the day when the notice is given or deemed to be given and the day for which it is given or on which it is to take effect;
|
|
“Company”
|
means the company whose name appears in the heading to these Articles;
|
|
“Covered Arrangement”
|
means, with respect to any person and as of any date, any agreement, arrangement or understanding (including any swaps or other derivative or short positions, profit interests, options, hedging transactions and securities lending or borrowing arrangement) to which such person or its Affiliates is, directly or indirectly, a part as of such date (A) with respect to shares of the Company or (B) the effect or intent of which is to mitigate loss to, manage the potential risk or benefit of share price changes (increases or decreases) for, or increase or decrease the voting power of such person or any of its Affiliates with respect to securities of the Company or which may have payments based in whole or in part, directly or indirectly, on the value (or change in value) or any securities of the Company (other than, in each such case interests in investment companies registered under the Investment Company Act of 1940 of the United States of America);
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“Deferred Shares”
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means deferred shares of €[ l ] each in the capital of the Company having the rights and privileges and subject to the restrictions set out in these Articles;
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“Directors” or the “Board”
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means the directors from time to time and for time being of the Company or the directors present at a meeting of the board of directors and includes any person occupying the position of director by whatever name;
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“dividend”
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includes interim dividends and bonus dividends;
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“electronic communication”
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the meaning given to that word in the Electronic Commerce Act, 2000;
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“electronic signature”
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the meaning given to that word in the Electronic Commerce Act, 2000;
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“euro” or “EUR” or “€”
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the currency of Ireland or if applicable, any successor currency used by the majority of the Member States of the European Union;
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“Exchange”
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means any securities exchange or other system on which the Shares of the Company may be listed or otherwise authorised for trading from time to time;
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“Exchange Act”
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means the Securities Exchange Act of 1934 of the United States of America, as amended;
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“Fyffes”
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Fyffes plc;
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“Fyffes Directors”
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those Directors appointed in accordance with Article 87(a)(11) of these Articles including any person who becomes a Fyffes Director in accordance with Article 87(a) on the retirement of any such Director;
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“Group”
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the Company and its subsidiaries from time to time and for the time being;
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“Holder”
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in relation to any share, the member whose name is entered in the Register as the holder of the share or, where the context permits, the members whose names are entered in the Register as the joint holders of shares;
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“Listing”
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means the listing of any of the Shares or depository receipts representing Shares, or any shares of any holding company or subsidiary of the Company on the New York Stock Exchange or the listing or quotation of any Shares or depository receipts representing Shares on any other stock exchange or regulated securities market;
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“Office”
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the registered office for the time being of the Company;
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“Ordinary Resolution”
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means an ordinary resolution of the Company’s shareholders within the meaning of Section 141 of the Act;
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“Ordinary Shares”
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Ordinary Shares of [US$0.01] each in the capital of the Company having the rights and privileges and subject to the restrictions set out in these Articles;
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“paid up”
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means paid-up as to the nominal value and any premium payable in respect of the issue of any Shares and includes credited as paid-up;
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“properly authenticated dematerialised instruction”
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the meaning given in the Companies Act 1990 (Uncertificated Securities) Regulations 1996 (SI No. 68/1996) or the UK Regulations (as applicable);
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“qualified certificate”
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the meaning given to that word in the Electronic Commerce Act, 2000;
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“Redeemable Shares”
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means redeemable shares in accordance with section 206 of the 1990 Act;
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“Register”
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the register of members to be kept by the Company as required by the Acts;
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“registered office”
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means the registered office of the time being of the Company;
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“relevant system”
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the meaning given in the Companies Act 1990 (Uncertificated Securities) Regulations 1996 (SI No. 68/1996);
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“Seal”
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the common seal of the Company or (where relevant) the official securities seal kept by the Company pursuant to the Acts;
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“Secretary”
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the Secretary of the Company and any person appointed to perform the duties of the Secretary of the Company;
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“Section 81 Notice”
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notice issued in accordance with section 81 of the Companies Act 1990;
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“Share or share”
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means in relation to any share, unless specified otherwise or the context otherwise requires, any share in the capital of the Company;
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“State”
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the island of Ireland excluding Northern Ireland;
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“treasury shares”
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shares in the Company which have been redeemed or purchased by the Company and are being held by the Company, as treasury shares in accordance with Part XI of the 1990 Act;
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“UK Regulations”
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the Uncertificated Securities Regulations 2001 of the United Kingdom;
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“US$” or “$”
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means United States dollars; and
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“warrants to subscribe”
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a warrant or certificate or similar document indicating the right of the registered holder thereof (other than under a share option scheme for employees) to subscribe for shares in the Company.
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(c)
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Expressions in these Articles referring to writing shall be construed, unless the contrary intention appears, as including references to printing, lithography, photography and any other modes or representing or reproducing words in a visible form except as provided in these Articles and/or where it constitutes writing in electronic form sent to the Company, the Company has agreed to its receipt in such form. Expressions in these Articles referring to execution of any document shall include any mode of execution whether under seal or under hand or any mode of electronic signature as shall be approved by the Directors. Expressions in these Articles referring to receipt of any electronic communications shall, unless the contrary intention appears, be limited to receipt in such manner as the Company has approved.
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(d)
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Unless the contrary intention appears, the use of the word “address” in these Articles in relation to electronic communications includes any number or address used for the purpose of such communications.
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(e)
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Unless specifically defined herein or the context otherwise requires, words or expressions contained in these Articles shall bear the same meaning as in the Acts but excluding any statutory modification thereof not in force when these Articles become binding on the Company.
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(f)
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The headings and captions included in these Articles are inserted for convenience of reference only and shall not be considered a part of or affect the construction or interpretation of these Articles.
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(g)
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A reference to a statute or statutory provision shall be construed as a reference to the laws of Ireland unless otherwise specified and includes:
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(i)
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any subordinate legislation made under it including all regulations, by-laws, orders and codes made thereunder;
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(ii)
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any repealed statute or statutory provision which it re-enacts (with or without modification); and
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(iii)
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any statute or statutory provision which modifies, consolidates, re- enacts or supersedes it.
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(h)
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In these Articles the masculine gender shall include the feminine and neuter, and vice versa, and the singular number shall include the plural, and vice versa, and words importing persons shall include firms or companies.
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(i)
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Reference herein to a share (or to a holding of shares) being in uncertificated form are references to that share being an uncertificated unit of a security.
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2.
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Share capital
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(a)
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The share capital of the Company is [€40,000 divided into 40,000 Deferred Shares of €1.00 each and] [US$[ l ]/€[ l ]] divided into [[ l ] US$ Ordinary Shares of US$[ l ]each/€[ l ]] Ordinary Shares of €[ l ] each].
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(b)
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The Deferred Shares shall have the rights and privileges and be subject to the restrictions set out in this Article 2(b).
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(i)
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the Deferred Shares are non-voting shares and do not convey upon the holder the right to receive any dividend or distribution declared, made or paid or any return of capital (save as provided in Article 2(b)(ii)) or to receive notice of or to attend, vote or speak at a general meeting;
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(ii)
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on a return of assets on a winding up of the Company, entitle, subject to any special rights and priorities which may be attached to any other class of share for the time being or from time to time in the capital of the Company and after payment to the holders of the Ordinary Shares of an aggregate amount of €50,000, 000,000, the holder thereof to repayment of the amount paid up on each Deferred Share held by such holder and the holders of the Deferred Shares shall not be entitled to any further participation in the assets or profits of the Company;
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(iii)
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the Deferred Shares shall not be transferable at any time other than with the prior written consent of the Directors;
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(iv)
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each Deferred Share in issue may, subject to the provisions of the Acts, be acquired by the Company for nil consideration or such other consideration as the Board may determine;
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(v)
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any Director of the Company (the “Agent”) is appointed, the attorney of the holder of a Deferred Share, with an irrevocable instruction to the Agent to execute all or any forms of transfer and/or renunciation and/or other documents in the Agent’s discretion in relation to the Deferred Shares in favour of the Company or as it may direct and to deliver such forms of transfer and/or renunciation and/or other documents together with any certificate(s) and/or other documents for registration on the occurrence of, or prior to, a Listing and to do all such other acts and things as may in the reasonable opinion of the Agent be necessary or expedient for the purpose of, or in connection with, the acquisition by the Company of the Deferred Shares for nil consideration or such other consideration as the Board may determine and to vest the said Deferred Shares in the Company; and
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(vi)
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the rights attached to the Deferred Shares shall not be deemed to be varied or abrogated by the creation or issue of any new shares ranking in priority to or
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(c)
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In the event that the issued share capital of the Company falls, or if the Board so shall determines is likely to fall, below the minimum statutory requirement pursuant to the Acts, the Directors are authorised to issue such number of Deferred Shares as may be required to maintain the minimum statutory requirement to such number of nominees as may be required to ensure compliance with the Acts with such Deferred Shares to be held by such nominees on behalf of the Holders.
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3.
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Rights of shares on issue
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4.
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Redeemable shares
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5.
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Variation of rights
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(a)
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Whenever the share capital is divided into different classes of shares, the rights attached to any class may be varied or abrogated with the consent in writing of the Holders of three-fourths in nominal value of the issued shares of that class, or with the sanction of a special resolution passed at a separate general meeting of the Holders of the shares of the class, and may be so varied or abrogated either whilst the Company is a going concern or during or in contemplation of a winding-up. The quorum at any such separate general meeting, other than an adjourned meeting, shall be two persons holding or representing by proxy at least one-third in nominal value of the issued shares of the class in question and the quorum at an adjourned meeting shall be one person holding shares of the class in question or his proxy.
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(b)
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The rights conferred upon the Holders of the shares of any class issued with preferred or other rights shall not, unless otherwise expressly provided by these Articles or the terms of the issue of the shares of that class, be deemed to be varied by a purchase or redemption by the Company of its own shares or by the creation or issue of further shares ranking pari passu therewith or subordinate thereto.
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6.
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Trusts not recognised
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7.
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Disclosure of interests
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(a)
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If at any time the Directors are satisfied that any member, or any other person appearing to be interested in shares held by such member:
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(i)
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in respect of the shares in relation to which the default occurred (the “default shares”) the member shall not be entitled to attend or to vote at a general meeting either personally or by proxy or to exercise any other right conferred by membership in relation to meetings of the Company;
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(ii)
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where the nominal value of the default shares represents at least one-quarter of one per cent (0.025%) of the nominal value of the issued shares of the class concerned, then the direction notice may additionally direct that:-
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(A)
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except in a liquidation of the Company, no payment shall be made of any sums due from the Company on the default shares, whether in respect of capital or dividend or otherwise, and the Company shall not have any liability to pay interest on any such payment when it is finally paid to the member (but the provisions of this sub-paragraph (A) shall apply only to the extent permitted from time to time by the listing rules of any securities exchange on which the Company’s shares are listed;
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(B)
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no other distribution shall be made on the default shares;
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(C)
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no transfer of any of the default shares held by such member shall be registered unless:-
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(I)
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the member is not himself in default as regards supplying the information requested and the transfer when presented for registration is accompanied by a certificate by the member in such form as the Directors may in their absolute discretion require to the effect that after due and careful enquiry the member is satisfied that no person in default as regards supplying such information is interested in any of the shares the subject of the transfer; or
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(II)
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the transfer is an approved transfer (as defined in sub- paragraph (f)(iii)).
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(b)
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Where any person appearing to be interested in the default shares has been duly served with a direction notice or copy thereof and the default shares which are the subject of such direction notice are held by an Approved Nominee, the provisions of this Article shall be treated as applying only to such default shares held by the Approved Nominee and not (insofar as such person’s apparent interest is concerned) to any other shares held by the Approved Nominee.
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(c)
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Where the member upon whom a Section 81 notice is served is an Approved Nominee acting in its capacity as such, the obligations of the Approved Nominee as a member of the Company shall be limited to disclosing to the Company such information relating to any person appearing to be interested in the shares held by it as has been recorded by it pursuant to the arrangements entered into by the Company or approved by the Directors pursuant to which it was appointed as an Approved Nominee.
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(d)
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Any direction notice shall immediately cease to have effect:-
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(i)
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in relation to any shares which are transferred by such member by means of an approved transfer; or
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(ii)
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when the Directors are satisfied that such member and any other person appearing to be interested in shares held by such member, has given to the Company the information required by the relevant Section 81 notice.
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(e)
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The Directors may at any time give notice cancelling a direction notice.
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(f)
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For the purposes of this Article:-
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(i)
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a person shall be treated as appearing to be interested in any shares if the member holding such shares has given to the Company a notification under the said Section 81 which either (i) names such person as being so interested or (ii) fails to establish the identities of all those interested in the shares and (after taking into account the said notification and any other relevant Section 81 notification) the Company knows or has reasonable cause to believe that the person in question is or may be interested in the shares;
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(ii)
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the prescribed period is twenty eight days from the date of service of the said Section 81 notice unless the nominal value of the default shares represents at least one-quarter of one per cent (0.025%) of the nominal value of the issued shares of that class, when the prescribed period is fourteen days from that date;
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(iii)
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a transfer of shares is an approved transfer if but only if:-
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(A)
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it is a transfer of shares to an offeror by way or in pursuance of acceptance of an offer made to all the Holders (or all the Holders other than the person making the offer and his nominees) of the shares in the Company to acquire those shares or a specified proportion of them; or
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(B)
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the Directors are satisfied that the transfer is made pursuant to a sale of the whole of the beneficial ownership of the shares the subject of the transfer to a party unconnected with the member and with other persons appearing to be interested in such shares; or
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(C)
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the transfer results from a sale made through a stock exchange on which the Company’s shares are normally traded.
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(g)
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Nothing contained in this Article shall limit the power of the Company under Section 85 of the 1990 Act.
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(h)
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Where any member, or any other person with an interest in shares held by such member, is deemed by Section 77 of the 1990 Act (as qualified by Section 78 of the same Act) to have an interest in 3% or more of the issued share capital of the Company, such member or person shall be required to notify the Company both of the existence of such interest and any event which results in the member or person ceasing to be so interested. Such notification shall be made in the same manner and within the same time period as specified in Sections 70 and 71 of the 1990 Act.
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(i)
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For the purpose of establishing whether or not the terms of any notice served under this Article shall have been complied with the decision of the Directors in this regard shall be final and conclusive and shall bind all persons interested.
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8.
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Allotment of shares
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(a)
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Subject to the provisions of the Acts relating to authority, pre-emption or otherwise in regard to the issue of, or the grant of options over, or other rights to subscribe for, new shares and of any resolution of the Company in general meeting passed pursuant thereto, all unissued shares (including treasury shares) for the time being in the capital of the Company shall be at the disposal of the Directors and (subject to the provisions of the Acts) they may allot, grant options over or otherwise dispose of them to such persons on such terms and conditions and at such times as they may consider to be in the best interests of the Company and its shareholders, but so that no share shall be
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(b)
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Without prejudice to the generality of the powers conferred on the Directors by the other paragraphs of this Article, the Directors may grant from time to time options to subscribe for the unallotted shares in the capital of the Company to persons who are or have been in the service or employment of the Company or any subsidiary or associated company of the Company (including Directors holding executive offices) on such terms and subject to such conditions as may be approved from time to time by the Directors or by any committee thereof appointed by the Directors for the purpose of such approval.
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(c)
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The Company may issue warrants to subscribe (by whatever name they are called) to any person to whom the Company has granted the right to subscribe for shares in the Company (other than under a share option scheme for employees) certifying the right of the registered holder thereof to subscribe for shares in the Company upon such terms and conditions as the right may have been granted.
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(d)
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Where the Directors are authorised to allot relevant securities in accordance with Section 20 of the 1983 Act, the Company may at any time and from time to time resolve by a special resolution referring to this Article 8(d) that the Directors be empowered pursuant to Section 24 of the 1983 Act to allot equity securities (as defined by Section 23 of that Act) for cash pursuant to their authority to allot relevant securities as if sub-section (1) of the said Section 23 did not apply to any such allotment provided that this power shall be limited to:-
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(i)
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the allotment of equity securities in connection with any rights issue in favour of ordinary shareholders (other than those holders with registered addresses outside the State to whom an offer would, in the opinion of the Directors, be impractical or unlawful in any jurisdiction) and/or any persons having a right to subscribe for or convert securities into ordinary shares in the capital of the Company (including without limitation any holders of options under any of the Company’s share option schemes for the time being) where the equity securities respectively attributable to the interests of such ordinary shareholders or such persons are proportionate (as nearly as may be) to the respective number of ordinary shares held by them or for which they are entitled to subscribe or convert into subject to such exclusions or other arrangements as the Directors may deem necessary or expedient to deal with any regulatory requirements, legal or practical problems in respect of overseas shareholders, fractional entitlements or otherwise; and
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(ii)
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the allotment of equity securities (other than pursuant to any such issue as referred to in paragraph (i) above) up to the maximum aggregate nominal value specified in such special resolution;
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9.
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Payment of commission
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10.
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Payment by instalments
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11.
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Issue of certificates
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(a)
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Unless otherwise provided for by the Board or the rights attaching to or by the terms of issue of any particular Shares, or to the extent required by any stock exchange, depository, or any operator of any clearance or settlement system, no person whose name is entered as a Holder in the Register of Holders shall be entitled to receive a share certificate for all her Shares of each class held by her (nor on transferring a part of holding, to a certificate for the balance).
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(b)
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Any share certificate, if issued, shall specify the number of Shares in respect of which it is issued and the amount paid thereon or the fact that they are fully paid, as the case may be, and may otherwise be in such form as shall be determined by the Board. Such certificates may be under Seal. All certificates for Shares shall be consecutively numbered or otherwise identified and shall specify the Shares to which they relate. The name and address of the person to whom the Shares represented thereby are issued, with the number of Shares and date of issue, shall be entered in the Register of Holders of the Company. All certificates surrendered to the Company for transfer shall be cancelled and no new certificate shall be issued until the former certificate for a like number of Shares shall have been surrendered and cancelled. The Board may authorise certificates to be issued with the seal and authorised signature(s) affixed by some method or system of mechanical process. In respect of a Share or Shares held jointly by several persons, the Company shall not be bound to issue a certificate or certificates to each such person, and the issue and delivery of a certificate or certificates to one of several joint holders shall be sufficient delivery to all such holders.
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12.
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Replacement of certificates
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13.
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Extent of lien
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14.
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Power of sale
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15.
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Power to effect transfer
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16.
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Proceeds of sale
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17.
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Liability on Shares
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(a)
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the death of such Holder;
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(b)
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the non-payment of any income tax or other tax by such Holder;
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(c)
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the non-payment of any estate, probate, succession, death, stamp or other duty by the executor or administrator of such Holder or by or out of her estate; or
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(d)
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any other act or thing;
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(e)
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the Company shall be fully indemnified by such Holder or her executor or administrator from all liability;
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(f)
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the Company shall have a lien upon all dividends and other monies payable in respect of the Shares registered in the Register as held either jointly or solely by such Holder for all monies paid or payable by the Company as referred to above in respect of such Shares or in respect of any dividends or other monies thereon or for or on account or in respect of such Holder under or in consequence of any such law, together with interest at the rate of 15 % per annum (or such other rate as the Board may determine) thereon from the date of payment to date of repayment, and the Company may deduct or set off against such dividends or other monies so payable any monies paid or payable by the Company as referred to above together with interest at the same rate;
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(g)
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the Company may recover as a debt due from such Holder or her executor or administrator (wherever constituted) any monies paid by the Company under or in consequence of any such law and interest thereon at the rate and for the period referred to above in excess of any dividends or other monies then due or payable by the Company; and
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(h)
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the Company may if any such money is paid or payable by it under any such law as referred to above refuse to register a transfer of any Shares by any such Holder or her executor or administrator until such money and interest is set off or deducted as referred to above or in the case that it exceeds the amount of any such dividends or other monies then due or payable by the Company, until such excess is paid to the Company.
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18.
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Making of calls
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19.
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Time of call
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20.
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Liability of joint Holders
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21.
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Interest on calls
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22.
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Instalments treated as calls
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23.
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Power to differentiate
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24.
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Interest on moneys advanced
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25.
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Notice requiring payment
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(a)
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If a member fails to pay any call or instalment of a call on the day appointed for payment thereof, the Directors, at any time thereafter during such times as any part of the call or instalment remains unpaid, may serve a notice on him requiring payment of so much of the call or instalment as is unpaid together with any interest which may have accrued.
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(b)
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The notice shall name a further day (not earlier than the expiration of fourteen Clear Days from the date of service of the notice) on or before which the payment required by the notice is to be made, and shall state that in the event of non-payment at or
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(c)
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If the requirements of any such notice as aforesaid are not complied with then, at any time thereafter before the payment required by the notice has been made, any shares in respect of which the notice has been given may be forfeited by a resolution of the Directors to that effect. The forfeiture shall include all dividends or other moneys payable in respect of the forfeited shares and not paid before forfeiture. The Directors may accept a surrender of any share liable to be forfeited hereunder.
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(d)
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On the trial or hearing of any action for the recovery of any money due for any call it shall be sufficient to prove that the name of the member sued is entered in the Register as the Holder, or one of the Holders, of the shares in respect of which such debt accrued, that the resolution making the call is duly recorded in the minute book and that notice of such call was duly given to the member sued, in pursuance of these Articles, and it shall not be necessary to prove the appointment of the Directors who made such call nor any other matters whatsoever, but the proof of the matters aforesaid shall be conclusive evidence of the debt.
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26.
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Power of disposal
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27.
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Effect of forfeiture
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28.
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Statutory declaration
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29.
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Payment of sums due on share issues
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30.
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Surrender of shares
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31.
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Conversion of shares into stock
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32.
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Transfer of stock
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33.
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Rights of stockholders
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(a)
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The Holders of stock shall have, according to the amount of stock held by them, the same rights, privileges and advantages in relation to dividends, voting at meetings of the Company and other matters as if they held the shares from which the stock arose, but no such right, privilege or advantage (except participation in the dividends and profits of the Company and in the assets on winding up) shall be conferred by an amount of stock which, if existing in shares, would not have conferred that right, privilege or advantage.
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(b)
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Such of these Articles as are applicable to paid up shares shall apply to stock, and the words “share” and “shareholder” therein shall include “stock” and “stockholder”.
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34.
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Form of instrument of transfer
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35.
|
Execution of instrument of transfer
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(a)
|
The instrument of transfer of any share may be executed by or on behalf of the transferor by the Secretary, the Assistant Secretary or any such person that the
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(b)
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The Company, at its absolute discretion, may procure that an indirect subsidiary of the Company or any other person shall, pay Irish stamp duty arising on a transfer of shares on behalf of the transferee of such shares of the Company. If stamp duty resulting from the transfer of shares in the Company, which would otherwise be payable by the transferee, is paid by any indirect subsidiary of the Company on behalf of or as agent for the transferee, then in those circumstances, the Company shall on behalf of any such subsidiary, be entitled to (i) seek reimbursement of the stamp duty from the transferor or transferee (at its discretion), (ii) set-off the stamp duty against any dividends payable to the transferor or transferee (at its discretion) and (iii) to claim a first and permanent lien on the shares on which stamp duty has been paid by any such subsidiary for the amount of stamp duty paid. The Company’s lien shall extend to all dividends paid on those shares. The members of the Company appoint any indirect subsidiary of the Company from time to time as their agent in relation to stamp duty. Nothing in this Article shall impose any liability or obligation on an Approved Nominee or on any Share held by an Approved Nominee acting in its capacity as such.
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(c)
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Notwithstanding the provisions of these Articles and subject to any regulations made under Section 239 of the 1990 Act, title to any shares in the Company or any depositary interest representing title to any shares in the Company may also be evidenced and transferred without a written instrument in accordance with Section 239 of the 1990 Act or any regulations made thereunder or the UK Regulations, as applicable. The Directors shall have power to permit any class of shares to be held in uncertificated form and to implement any arrangements they think fit for such evidencing and transfer which accord with such regulations and in particular shall, where appropriate, be entitled to disapply or modify all or part of the provisions in these Articles with respect to the requirement for written instruments of transfer and share certificates, in order to give effect to such regulations.
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36.
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Refusal to register transfers
|
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(a)
|
If the Company is under a contractual obligation to register or to refuse to register the transfer of a share to any person, the Board shall act in accordance with such obligation and register or refuse to register the transfer of a share to such person, whether or not it is a fully-paid share or a share on which the Company has a lien. Subject to the foregoing sentence, the Directors in their absolute discretion and without assigning any reason therefor may decline to register:-
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(i)
|
any transfer of a share which is not fully paid; or
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(ii)
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any transfer to or by a minor or person of unsound mind;
|
|
(b)
|
The Directors may decline to recognise any instrument of transfer unless:-
|
|
(i)
|
the instrument of transfer (being a transfer which is not effected in a manner permitted by Article 35(b)) is accompanied by the certificate of the shares to which it relates and such other evidence as the Directors may reasonably require to show the right of the transferor to make the transfer;
|
|
(ii)
|
the instrument of transfer is in respect of one class of share only;
|
|
(iii)
|
the instrument of transfer is in favour of not more than four transferees;
|
|
(iv)
|
it is lodged at the Office or at such other place as the Directors may appoint; and
|
|
(v)
|
unless a registration statement under the Securities Act of 1933 of the United States of America is in effect with respect to such transfer or such transfer is exempt from registration and, if requested by the Board, a written opinion from counsel reasonably acceptable to the Board is obtained to the effect that such transfer is exempt from registration.
|
|
(c)
|
The Directors may decline to register any transfer of shares in uncertificated form or any depositary interest representing title to any shares in the Company only in such circumstances as may be permitted or required by the 1996 Regulations and/or the UK Regulations (as applicable).
|
37.
|
Procedure on refusal
|
38.
|
Closing of transfer books
|
39.
|
Absence of registration fees
|
40.
|
Retention of transfer instruments
|
41.
|
Renunciation of allotment
|
42.
|
Death of a member
|
43.
|
Transmission on death or bankruptcy
|
44.
|
Rights before registration
|
45.
|
Increase of capital
|
|
(a)
|
The Company from time to time by Ordinary Resolution may increase the share capital by such sum, to be divided into shares of such amount, as the resolution shall prescribe.
|
|
(b)
|
Subject to the provisions of the Acts, the new shares shall be issued to such persons, upon such terms and conditions and with such rights and privileges annexed thereto as the general meeting resolving upon the creation thereof shall direct and, if no direction be given, as the Directors shall determine and in particular such shares may
|
|
(c)
|
Except so far as otherwise provided by the conditions of issue or by these Articles, any capital raised by the creation of new shares shall be considered part of the pre-existing ordinary capital and shall be subject to the provisions herein contained with reference to calls and instalments, transfer and transmission, forfeiture, lien and otherwise.
|
46.
|
Consolidation, sub-division and cancellation of capital
|
|
(a)
|
consolidate and divide all or any of its share capital into shares of larger amount;
|
|
(b)
|
subject to the Acts, subdivide its shares, or any of them, into shares of smaller amount, so however that in the sub-division the proportion between the amount paid and the amount, if any, unpaid on each reduced share shall be the same as it was in the case of the share from which the reduced share is derived (and so that the resolution whereby any share is sub-divided may determine that, as between the Holders of the shares resulting from such sub-division, one or more of the shares may have, as compared with the others, any such preferred, deferred or other rights or be subject to any such restrictions as the Company has power to attach to unissued or new shares);
|
|
(c)
|
cancel any shares which, at the date of the passing of the resolution, have not been taken or agreed to be taken by any person and reduce the amount of its authorised share capital by the amount of the shares so cancelled; or
|
|
(d)
|
subject to applicable law, change the currency denomination of its share capital.
|
47.
|
Fractions on consolidation
|
48.
|
Purchase of own shares
|
49.
|
Reduction of capital
|
50.
|
General Meetings outside the State
|
51.
|
Annual general meetings
|
52.
|
Extraordinary general meetings
|
53.
|
Convening general meetings
|
54.
|
Class meetings
|
|
(e)
|
the necessary quorum shall be two or more persons holding or representing by proxy at least one-third in nominal value of the issued shares of the class or, at any adjourned meeting of such Holders, one Holder present in person or by proxy, whatever the amount of his holding, shall be deemed to constitute a meeting; and
|
|
(f)
|
any Holder of shares of the class present in person or by proxy may demand a poll; and
|
|
(g)
|
on a poll, each Holder of shares of the class shall have one vote in respect of every share of the class held by him.
|
55.
|
Notice of general meetings
|
|
(a)
|
Subject to the provisions of the Acts allowing a general meeting to be called by shorter notice, an annual general meeting and an extraordinary general meeting called for the passing of a special resolution shall be called by at least twenty-one Clear Days’ notice and all other extraordinary general meetings shall be called by at least fourteen Clear Days’ notice.
|
|
(b)
|
Any notice convening a general meeting shall specify the time and place of the meeting and, in the case of special business, the general nature of that business and, in reasonable prominence, that a member entitled to attend and vote is entitled to appoint a proxy or proxies to attend, speak and vote in his place and that a proxy need not be a member of the Company. It shall also give particulars of any Directors who are to retire by rotation or otherwise at the meeting and of any persons who are recommended by the Directors for appointment or re-appointment as Directors at the meeting or in respect of whom notice has been duly given to the Company of the intention to propose them for appointment or re-appointment as Directors at the meeting. Subject to any restrictions imposed on any shares, the notice shall be given to all the members and to the Directors and the Auditors.
|
|
(c)
|
The accidental omission to give notice of a meeting to, or the non-receipt of notice of a meeting by, any person entitled to receive notice shall not invalidate the proceedings at the meeting.
|
|
(d)
|
Where, by any provision contained in the Acts, extended notice is required of a resolution, the resolution shall not be effective (except where the Directors of the Company have resolved to submit it) unless notice of the intention to move it has been given to the Company not less than twenty-eight days (or such shorter period as the Acts permit) before the meeting at which it is moved, and the Company shall give to the members notice of any such resolution as required by and in accordance with the provisions of the Acts.
|
56.
|
Quorum for general meetings
|
|
(a)
|
No business shall be transacted at any general meeting unless a quorum is present. Two or more members present in person or by proxy holding not less than a majority of the issued and outstanding shares of the Company (whether or not any such member exercises his voting rights in whole, in part or at all at the relevant general meeting) entitled to vote at the meeting in question shall be a quorum.
|
|
(b)
|
If such a quorum is not present within half an hour from the time appointed for the meeting, the meeting shall stand adjourned to the same day in the next week at the same time and place, or to such time and place as the Directors may determine. If at the adjourned meeting such a quorum is not present within half an hour from the time appointed for the meeting, the meeting, if convened otherwise than by resolution of the Directors, shall be dissolved, but if the meeting shall have been convened by
|
57.
|
Special business
|
58.
|
Chairman of general meetings
|
|
(a)
|
The chairman of the board of Directors or, in his absence, the deputy chairman (if any) or, in his absence, some other Director nominated by the Directors, shall preside as chairman at every general meeting of the Company. If at any general meeting none of such persons shall be present within fifteen minutes after the time appointed for the holding of the meeting and willing to act, the Directors present shall elect one of their number to be chairman of the meeting and, if there is only one Director present and willing to act, he shall be chairman.
|
|
(b)
|
If at any meeting no Director is willing to act as chairman or if no Director is present within fifteen minutes after the time appointed for holding the meeting, the members present and entitled to vote shall choose one of the members personally present to be chairman of the meeting.
|
59.
|
Directors’ and Auditors’ right to attend general meetings
|
60.
|
Adjournment of general meetings
|
61.
|
Determination of resolutions
|
62.
|
Entitlement to demand poll
|
|
(a)
|
by the chairman of the meeting;
|
|
(b)
|
by at least five members present (in person or by proxy) having the right to vote at the meeting;
|
|
(c)
|
by any member or members present (in person or by proxy) representing not less than one-tenth of the total voting rights of all the members having the right to vote at the meeting; or
|
|
(d)
|
by a member or members present (in person or by proxy) holding shares in the Company conferring the right to vote at the meeting being shares on which an aggregate sum has been paid up equal to not less than one-tenth of the total sum paid up on all the shares conferring that right.
|
63.
|
Taking of a poll
|
|
(a)
|
Save as provided in paragraph (b) of this Article, a poll shall be taken in such manner as the chairman directs and he may appoint scrutineers (who need not be members) and fix a time and place for declaring the result of the poll. The result of the poll shall be deemed to be the resolution of the meeting at which the poll was demanded.
|
|
(b)
|
A poll demanded on the election of a chairman or on a question of adjournment shall be taken forthwith. A poll demanded on any other question shall be taken either forthwith or at such time (not being more than thirty days after the poll is demanded) and place as the chairman of the meeting may direct. The demand for a poll shall not prevent the continuance of a meeting for the transaction of any business other than the question on which the poll was demanded. If a poll is demanded before the declaration of the result of a show of hands and the demand is duly withdrawn, the meeting shall continue as if the demand had not been made.
|
|
(c)
|
No notice need be given of a poll not taken forthwith if the time and place at which it is to be taken are announced at the meeting at which it is demanded. In any other case at least seven Clear Days’ notice shall be given specifying the time and place at which the poll is to be taken.
|
64.
|
Votes of members
|
65.
|
Voting by joint Holders
|
66.
|
Voting by incapacitated Holders
|
67.
|
Default in payment of calls
|
68.
|
Restriction of voting rights
|
|
(a)
|
If at any time the Directors shall determine that a Specified Event (as defined in paragraph (f) of this Article 68) shall have occurred in relation to any share or shares the Directors may serve a notice to such effect on the Holder or Holders thereof. Upon the service of any such notice (in these Articles referred to as a “Restriction Notice”) no Holder or Holders of the share or shares specified in such Restriction Notice shall be entitled, for so long as such Restriction Notice shall remain in force, to attend or vote at any general meeting either personally or by proxy.
|
|
(b)
|
A Restriction Notice shall be cancelled by the Directors as soon as reasonably practicable, but in any event not later than forty-eight hours, after the Holder or Holders concerned shall have remedied the default by virtue of which the Specified Event shall have occurred. A Restriction Notice shall automatically cease to have effect in respect of any share transferred upon registration of the relevant transfer provided that a Restriction Notice shall not cease to have effect in respect of any transfer where no change in the beneficial ownership of the share shall occur and for this purpose it shall be assumed that no such change has occurred where a transfer form in respect of the share is presented for registration having been stamped at a reduced rate of stamp duty by virtue of the transferor or transferee claiming to be entitled to such reduced rate as a result of the transfer being one where no beneficial interest passes.
|
|
(c)
|
The Directors shall cause a notation to be made in the Register against the name of any Holder or Holders in respect of whom a Restriction Notice shall have been served indicating the number of shares specified in such Restriction Notice and shall cause such notation to be deleted upon cancellation or cesser of such Restriction Notice.
|
|
(d)
|
Any determination of the Directors and any notice served by them pursuant to the provisions of this Article shall be conclusive as against the Holder or Holders of any
|
|
(e)
|
If, while any Restriction Notice shall remain in force in respect of any Holder or Holders of any shares, such Holder or Holders shall be issued with any further shares as a result of such Holder or Holders not renouncing any allotment of shares made to him or them pursuant to a capitalisation issue under Part XXII of these Articles, the Restriction Notice shall be deemed also to apply to such Holder or Holders in respect of such further shares on the same terms and conditions as were applicable to the said Holder or Holders immediately prior to such issue of further shares.
|
|
(f)
|
For the purpose of these Articles the expression “Specified Event” in relation to any share shall mean the failure by the Holder or Holders thereof to pay any call or instalment of a call in the manner and at the time appointed for payment thereof.
|
69.
|
Time for objection to voting
|
70.
|
Appointment of proxy
|
|
(a)
|
Every member entitled to attend and vote at a general meeting may appoint a proxy or proxies to attend, speak and vote on his behalf provided that, where a shareholder appoints more than one proxy in relation to a general meeting, each proxy must be appointed to exercise the rights attached to a different share or shares held by him. The appointment of a proxy shall be in writing in any usual form or in any other form which the Directors may approve and shall be signed by or on behalf of the appointer. The signature on such appointment need not be witnessed. A body corporate may sign a form of proxy under its common seal, under the hand of a duly authorised officer thereof or in such manner as the Directors may approve. A proxy need not be a member of the Company. The appointment of a proxy in electronic form shall only be effective in such manner as the Directors may approve.
|
|
(b)
|
Without limiting the foregoing, in relation to any shares which are held in uncertificated form, the Directors may from time to time permit appointments of a proxy to be made by means of electronic communication in the form of an Uncertificated Proxy Instruction, (that is, a properly authenticated dematerialised instruction, and or other instruction or notification, which is sent by means of the relevant system concerned and received by such participant in that system acting on behalf of the Company as the Directors may prescribe in such form and subject to such terms and conditions as may from time to time be prescribed by the Directors (subject always to the facilities and requirements of the relevant system concerned)); and may in a similar manner permit supplements to, or amendments or revocations of, any such Uncertificated Proxy Instruction to be made by like means. The Directors may in addition prescribe the method of determining the time at which any such properly authenticated dematerialised instruction (and or other instruction or notification) is to be treated as received by the Company or such participant. The Directors may treat any such Uncertificated Proxy Instruction which purports to be or is expressed to be sent on behalf of a Holder of a share as sufficient evidence of the authority of a person sending that instruction to send it on behalf of that Holder.
|
|
(c)
|
The Directors may send, at the expense of the Company, by post, electronic mail or otherwise, to the members forms for the appointment of a proxy (in such form as the Directors may approve and with or without stamped envelope for their return) for use at any general meeting or at any class meeting either in blank or nominating any one or more of the Directors or any other persons in the alternative. The proxy form must make provision for three-way voting on all resolutions intended to be proposed, other than resolutions which are merely procedural. If for the purpose of any meeting invitations to appoint as proxy a person or one of the number of persons specified in the invitations are issued at the expense of the Company, such invitations shall be issued to all (and not to some only) of the members entitled to be sent a notice of the meeting and to vote thereat by proxy but the accidental omission to issue such invitation to, or the non-receipt to such invitations by, any member shall not invalidate the proceedings at any such meeting.
|
|
(d)
|
Subject to the foregoing, a Holder may appoint a proxy by means of an “omnibus” or “enduring” proxy with or without a power of substitution. Such “omnibus” or “enduring” proxy may provide that all persons who appear in a specified register maintained by an Approved Nominee (each a “specified holder”) may act as proxy for so long as the name of the specified holder appears in the specified Approved Nominee register in respect of the relevant number of Shares which appear opposite the name of the specified holder in the Approved Nominee register from time to time (the “Relevant Shares”) in relation to all meetings of the Company, and if any specified holder does not attend a meeting of the Company, the relevant Holder may appoint such other persons as may be nominated by the specified holder from time to time in accordance with the proxy registration system for specified holders as the Holder’s proxy in relation to all meetings of the Company in respect of the Relevant Shares.
|
71.
|
Bodies corporate acting by representatives at meetings
|
72.
|
Receipt of proxy appointment
|
|
(i)
|
in the notice convening the meeting; or
|
|
(ii)
|
in any appointment of proxy sent out by the Company in relation to the meeting; or
|
|
(iii)
|
in any invitation contained in an electronic communication to appoint a proxy issued by the Company in relation to the meeting;
|
73.
|
Effect of proxy appointment
|
74.
|
Effect of revocation of proxy or of authorisation
|
75.
|
Number of Directors
|
76.
|
Share qualification
|
77.
|
Ordinary remuneration of Directors
|
78.
|
Special remuneration of Directors
|
79.
|
Expenses of Directors
|
80.
|
Alternate Directors
|
|
(a)
|
Any Director may appoint by writing (whether in electronic form or otherwise) under his hand any person (including another Director) to be his alternate provided always that no such appointment of a person other than a Director as an alternate shall be operative unless and until such appointment shall have been approved by resolution of the Directors. Any such authority may be sent by delivery, post, cable, telegram, telex, telefax, electronic mail or any other means of communication approved by the Directors and may bear a printed, facsimile, electronic or advanced electronic signature of the Director giving such authority.
|
|
(b)
|
An alternate Director shall be entitled, subject to his giving to the Company an address within Ireland, the United Kingdom or the United States of America, to receive notices of all meetings of the Directors and of all meetings of committees of Directors of which his appointor is a member, to attend and vote at any such meeting at which the Director appointing him is not personally present and in the absence of his appointor to exercise all the powers, rights, duties and authorities of his appointor as a Director (other than the right to appoint an alternate hereunder).
|
|
(c)
|
Save as otherwise provided in these Articles, an alternate Director shall be deemed for all purposes to be a Director and shall alone be responsible for his own acts and defaults and he shall not be deemed to be the agent of the Director appointing him. The remuneration of any such alternate Director shall be payable out of the remuneration paid to the Director appointing him and shall consist of such portion of the last mentioned remuneration as shall be agreed between the alternate and the Director appointing him.
|
|
(d)
|
A Director may revoke at any time the appointment of any alternate appointment by him. If a Director shall die or cease to hold the office of Director the appointment of his alternate shall thereupon cease and determine.
|
|
(e)
|
If a Director retires by rotation or otherwise but is re-appointed or deemed to have been reappointed at the meeting at which he retires, any appointment of an alternate Director made by him which was in force immediately prior to his retirement shall continue after his re-appointment.
|
|
(f)
|
Any appointment or revocation by a Director under this Article shall be effected by notice in writing (whether in electronic form or otherwise) given under his hand to the Secretary or deposited or received at the Office or in any other manner approved by the Directors.
|
81.
|
Directors’ powers
|
82.
|
Power to delegate and appoint Committees
|
|
(a)
|
Without prejudice to the generality of the last preceding Article, the Directors may, by resolution adopted by a majority of the Board then in office, delegate any of their powers to any Chief Executive Officer, or any Director holding any other executive office or appoint an executive committee and one or more other committees each of which shall have two or more members consisting, during the first 12 months following the Listing, of at least one Fyffes Director and at least one Chiquita Director together with such other persons (if any) as may be appointed to such committee by the Directors provided that a majority of the members of each committee appointed by the Directors shall at all times consist of Directors. No resolution of any such committee shall be effective unless a majority of the members of the committee present at the meeting at which it was passed are Directors. Any such delegation may be made subject to any conditions the Directors may impose, and either collaterally with or to the exclusion of their own powers and may be revoked. Subject to any such conditions, the proceedings of a committee with two or more members shall be governed by the provisions of these Articles regulating the proceedings of Directors so far as they are capable of applying.
|
|
(b)
|
In the event that any Fyffes Director or Chiquita Director appointed to a committee is unable or unwilling to serve or ceases to serve as a Director during the first 12 months following Listing, such Director shall be replaced by a Chiquita Director or a Fyffes Director, as applicable.
|
|
(c)
|
To the extent provided in the resolution referred to in sub-paragraph (a) of this Article (and unless otherwise provided in the resolution of the Directors designating the members of such committee), each committee shall have and may exercise all the authority of the board of Directors except that no such committee shall:
|
|
(i)
|
elect or appoint any Director, or remove any officer or director;
|
|
(ii)
|
amend or repeal any resolution theretofore adopted by the board of Directors which by its terms is amendable or repealable only by the board of Directors.
|
|
(d)
|
The board of Directors, by resolution adopted by a majority of the Board then in office, may, subject to sub-paragraph (a) of this Article:
|
|
(i)
|
fill any vacancy in any such committee;
|
|
(ii)
|
appoint one or more Directors or other persons to serve as additional members of any such committee;
|
|
(iii)
|
appoint one or more Directors or other persons to serve as alternate members of any such committee, to act in the absence or disability of members of any such committee with all the powers of such absent or disabled members;
|
|
(iv)
|
abolish any such committee at its pleasure; and
|
|
(v)
|
remove any director or other person from membership of such committee at any time, with or without cause
|
|
(e)
|
Action taken at a meeting of any committee established under this Article shall be reported to the board of Directors at its next meeting following such committee meeting, except that, when the meeting of the board of Directors is held within two days after the committee meeting, such report shall, if not made at its first meeting, be made to the board of Directors at its second meeting following such committee meeting.
|
83.
|
Appointment of attorneys
|
84.
|
Local management
|
85.
|
Borrowing powers
|
86.
|
Execution of negotiable instruments
|
87.
|
Appointment of Directors
|
|
(a)
|
On or prior to the Listing, the board of Directors shall be comprised as follows:
|
|
(i)
|
six individuals designated by Chiquita;
|
|
(ii)
|
six individuals designated by Fyffes; and
|
|
(iii)
|
one individual designated by mutual agreement between Chiquita and Fyffes;
|
|
(b)
|
At each annual general meeting of the Company all of the Directors shall retire from office. A Director who retires at an annual general meeting may be reappointed, if willing to act. If he is not reappointed he shall retain office until the meeting appoints someone in his place or, if it does not do so, until the close or adjournment of the meeting.
|
|
(c)
|
Save as otherwise permitted in these Articles, Directors will be elected by way of Ordinary Resolution of the Company in general meeting. Any vacancy on the Board, including a vacancy that results from an increase in the number of Directors or from the death, resignation, retirement, disqualification or removal of a Director, shall be deemed a casual vacancy. Except as otherwise provided for in these Articles, any casual vacancy shall only be filled by decision of a majority of the Board then in office, provided that a quorum is present.
|
|
(d)
|
During any vacancy in the Board, the remaining Directors shall have full power to act as the Board. If, at any general meeting of the Company, the number of Directors is reduced below the minimum prescribed by the Board in accordance with Article 75 due to the failure of any persons nominated to be Directors to be elected, then in those circumstances, the nominee or nominees who receive the highest number of votes in favour of election shall be elected in order to maintain the prescribed minimum number of Directors and each such Director shall remain a Director (subject to the provisions of the Companies Acts and these Articles) only until the conclusion of the next annual general meeting of the Company unless such Director is elected by the Holders during such meeting.
|
88.
|
Nomination of Directors
|
|
(a)
|
Except as provided in Article 87(a), nominations of persons for election to the Board at a general meeting may only be made (a) pursuant to the Company’s notice of meeting pursuant to Article 55 at the recommendation of the Board, (b) by or at the direction of the Board or any authorised committee thereof or (c) by any Holder who (i) complies with the notice procedures set forth in Articles 88(b) or 88(c), as applicable, (ii) was a Holder at the time such notice is delivered to the Secretary and on the record date for the determination of Holders entitled to vote at such general meeting and (iii) is present at the relevant general meeting, either in person or by proxy, to present her nomination, provided, however, that Holders shall only be entitled to nominate persons for election to the Board at annual general meetings or at general meetings called specifically for the purpose of electing Directors.
|
|
(b)
|
For nominations of persons for election to the Board to be properly brought before an annual general meeting by a Holder, such annual general meeting must have been called for the purpose of, among other things, electing Directors and such Holder must have given timely notice thereof in writing to the Secretary. To be timely, a Holder’s notice shall be delivered to the Secretary at the registered office of the Company, or such other Address as the Secretary may designate, not less than ninety (90) days nor more than one hundred and twenty (120) days prior to the first anniversary of the date of the immediately preceding annual general meeting; provided, however, that in the event the date of the annual general meeting is changed by more than thirty (30) days from the first anniversary date of the prior year’s annual general meeting, notice by the Holder to be timely must be so delivered not later than ninety (90) days prior to the date of such annual general meeting or, if later, the close of business on the tenth (10th) day following the day on which notice of the date of such meeting was given in accordance with these Articles or public announcement of the date of such meeting was first made, whichever first occurs. Such Holder’s notice shall set forth (a) as to each person whom the Holder proposes to nominate for election or re-election as a Director, all information relating to such person that is required to be disclosed in solicitations of proxies for election of Directors in an election contest, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act as amended, or any successor provisions thereto, including such person’s written consent to being named as a nominee and to serving as a Director of the Company if elected, (b) a description of the material terms of any Covered Arrangement to which such Holder and its Affiliates, directly or indirectly, is a party as of the date of such notice and (c) as to the Holder giving the notice (i) the name and Address of such Holder, as they appear on the Register of Holders, (ii) the class and number of Shares that are owned beneficially and/or of record by such Holder, as well as any derivative securities relating to the Shares owned by such Holder, (iii) a representation that the Holder is a registered holder of Shares entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to propose such nomination and (iv) a description of all arrangements and understandings between such Holder and each proposed nominee (and any other person or persons including their names) pursuant to which the nominations are to be made by such Holder. The Board may require any proposed nominee to furnish such other information as it may reasonably require to determine the eligibility of such proposed nominee to serve as a Director of the Company, including such evidence satisfactory to the Board that such nominee has no interests that would limit such nominee’s ability to fulfil his or her duties as a Director.
|
|
(c)
|
For nominations of persons for election to the Board to be properly brought before a general meeting called for the purpose of the election of Directors, other than an annual general meeting by a Holder, such Holder must have given timely notice
|
|
(d)
|
Subject to the Companies Acts, unless otherwise provided by the terms of any series of preferred shares or any agreement among Holders or other agreement approved by the Board, only persons who are nominated in accordance with the procedures set forth in Articles 88(b) and 88(c) shall be eligible for election as Directors of the Company. If the Chairman of a general meeting determines that a proposed nomination was not made in compliance with Articles 88(b) and 88(c), the Chairman shall declare to the meeting that nomination is defective and such defective nomination shall be disregarded. Notwithstanding the foregoing provisions of these Articles, if the Holder (or a qualified representative of the Holder) does not appear at the general meeting to present her nomination, such nomination shall be disregarded.
|
|
(e)
|
Notwithstanding the foregoing provisions of this Article, any Holder intending to make a nomination in accordance with this Article and each related beneficial owner, if any, will also comply with all applicable requirements of the Exchange Act with respect to the matters set forth in these Articles; provided however that any references in these articles to the Exchange Act are not intended to, and will not, limit the requirements applicable to nominations made or intended to be made in accordance with this Article.
|
89.
|
Disqualification of Directors
|
|
(a)
|
he is restricted or disqualified from acting as a director of any company under the provisions of Part VII of the 1990 Act;
|
|
(b)
|
he becomes bankrupt or makes any arrangement or composition with his creditors generally;
|
|
(c)
|
in the opinion of a majority of his co-Directors, he becomes incapable by reason of mental disorder of discharging his duties as a Director;
|
|
(d)
|
(not being a Director holding for a fixed term an executive office in his capacity as a Director) he resigns his office by notice to the Company;
|
|
(e)
|
he is convicted of an indictable offence, unless the Directors otherwise determine;
|
|
(f)
|
he shall have been absent for more than six consecutive months without permission of the Directors from meetings of the Directors held during that period and his alternate Director (if any) shall not have attended any such meeting in his place during such period, and the Directors pass a resolution that by reason of such absence he has vacated office; or
|
|
(g)
|
he is required in writing (whether in electronic form or otherwise) by all his co-Directors to resign.
|
90.
|
Removal of Directors
|
91.
|
Executive offices
|
|
(a)
|
The Directors may appoint one or more of their body to the office of Chief Executive Officer or to any other office (except that of Auditor) under the Company as may be deemed necessary or desirable by the board of Directors (including, where considered appropriate, the office of chairman) on such terms and for such period as they may determine and, without prejudice to the terms of any contract entered into in any particular case, may revoke any such appointment at any time either with or without cause, by the affirmative vote of a majority of the members of the board of Directors then in office; provided that such removal shall be without prejudice to the contract
|
|
(b)
|
The Chief Executive Officer shall have the powers and perform the duties incident to that position. Subject to the powers of the board of directors, the Chief Executive Officer shall be in the general and active charge of the entire business, affairs and property of the Company. The Chief Executive Officer shall have such other powers and perform such other duties as may be prescribed by the Directors or provided in these Articles.
|
|
(c)
|
A Director holding any such executive office shall receive such remuneration, whether in addition to or in substitution for his ordinary remuneration as a Director and whether by way of salary, commission, participation in profits or otherwise or partly in one way and partly in another, as the Directors may determine.
|
|
(d)
|
The appointment of any Director to the office of Chief Executive Officer shall determine automatically if he ceases to be a Director but without prejudice to any claim for damages for breach of any contract of service between him and the Company.
|
|
(e)
|
The appointment of any Director to any other executive office shall not determine automatically if he ceases from any cause to be a Director unless the contract or resolution under which he holds office shall expressly state otherwise, in which event such determination shall be without prejudice to any claim for damages for breach of any contract of service between him and the Company.
|
|
(f)
|
A Director may hold any other office or place of profit under the Company (except that of Auditor) in conjunction with his office of Director, and may act in a professional capacity to the Company, on such terms as to remuneration and otherwise as the Directors shall arrange.
|
|
(g)
|
Any two or more offices of the Company may be held by the same person, but no officer shall execute, acknowledge or verify any instrument in more than one capacity if such instrument is required by law or these Articles to be executed, acknowledged or verified by two or more officers.
|
|
(h)
|
The other officers of the Company shall have such powers and duties as generally pertain to their respective offices as well as such powers and duties as may be prescribed from time to time by the board of Directors or the Chief Executive Officer.
|
|
(i)
|
In the case of the absence or disability of any officer of the Company and of any person hereby authorised to act in such officer’s place during such officer’s absence or disability, the board of Directors may by resolution delegate the powers and duties of such officer to any other officer or to any Director, or to any other person selected by it.
|
92.
|
Directors’ interests
|
|
(a)
|
Subject to the provisions of the Acts, and provided that he has disclosed to the Directors the nature and extent of any material interest of his, a Director notwithstanding his office:-
|
|
(i)
|
may be a party to, or otherwise interested in, any transaction or arrangement with the Company or any subsidiary or associated company thereof or in
|
|
(ii)
|
may be a director or other officer of, or employed by, or a party to any transaction or arrangement with, or otherwise interested in, any body corporate promoted by the Company or in which the Company or any subsidiary or associated company thereof is otherwise interested; and
|
|
(iii)
|
shall not be accountable, by reason of his office, to the Company for any benefit which he derives from any such office or employment or from any such transaction or arrangement or from any interest in any such body corporate and no such transaction or arrangement shall be liable to be avoided on the ground of any such interest or benefit.
|
|
(b)
|
Subject to the provisions of the Acts, no Director or intending Director shall be disqualified by his office from contracting with the Company either as vendor, purchaser or otherwise, nor shall any such contract or any contract or arrangement entered into by or on behalf of the other company in which any Director shall be in any way interested be avoided nor shall any Director so contracting or being so interested be liable to account to the Company for any profit realised by any such contract or arrangement by reason of such Director holding that office or of the fiduciary relationship thereby established. The nature of a Director’s interest must be declared by him at the meeting of the Directors at which the question of entering into the contract or arrangement is first taken into consideration, or if the Director was not at the date of that meeting interested in the proposed contract or arrangement at the next meeting of the Directors held after he became so interested, and in a case where the Director becomes interested in a contract or arrangement after it is made at the first meeting of the Directors held after he becomes so interested.
|
|
(c)
|
A copy of every declaration made and notice given under this Article shall be entered within three days after the making or giving thereof in a book kept for this purpose. Such book shall be open for inspection without charge by any Director, Secretary, Auditor or member of the Company at the Office and shall be produced at every general meeting of the Company and at any meeting of the Directors if any Director so requests in sufficient time to enable the book to be available at the meeting.
|
|
(d)
|
For the purposes of this Article:-
|
|
(i)
|
a general notice given to the Directors that a Director is to be regarded as having an interest of the nature and extent specified in the notice in any transaction or arrangement in which a specified person or class of persons is interested shall be deemed to be a disclosure that the Director has an interest in any such transaction of the nature and extent so specified; and
|
|
(ii)
|
an interest of which a Director has no knowledge and of which it is unreasonable to expect him to have knowledge shall not be treated as an interest of his.
|
93.
|
Restriction on Directors’ voting
|
|
(a)
|
Save as otherwise provided by these Articles, a Director shall not vote at a meeting of the Directors or a committee of Directors on any resolution concerning a matter in which he has, directly or indirectly, an interest which is material or a duty which conflicts or may conflict with the interests of the Company. A Director shall not be counted in the quorum present at a meeting in relation to any such resolution on
|
|
(b)
|
A Director shall be entitled (in the absence of some other material interest than is indicated below) to vote (and be counted in the quorum) in respect of any resolutions concerning any of the following matters, namely:-
|
|
(i)
|
the giving of any security, guarantee or indemnity to him in respect of money lent by him to the Company or any of its subsidiary or associated companies or obligations incurred by him or by any other person at the request of or for the benefit of the Company or any of its subsidiary or associated companies;
|
|
(ii)
|
the giving of any security, guarantee or indemnity to a third party in respect of a debt or obligation of the Company or any of its subsidiary or associated companies for which he himself has assumed responsibility in whole or in part and whether alone or jointly with others under a guarantee or indemnity or by the giving of security;
|
|
(iii)
|
any proposal concerning any offer of shares or debentures or other securities of or by the Company or any of its subsidiary or associated companies for subscription, purchase or exchange in which offer he is or is to be interested as a participant in the underwriting or sub-underwriting thereof;
|
|
(iv)
|
any proposal concerning any other company in which he is interested, directly or indirectly and whether as an officer or shareholder or otherwise howsoever, provided that he is not the holder of or beneficially interested in 1% or more of the issued shares of any class of such company or of the voting rights available to members of such company (or of a third company through which his interest is derived) (any such interest being deemed for the purposes of this Article to be a material interest in all circumstances);
|
|
(v)
|
any proposal concerning the adoption, modification or operation of a superannuation fund or retirement benefits scheme under which he may benefit and which has been approved by or is subject to and conditional upon approval for taxation purposes by the appropriate Revenue authorities;
|
|
(vi)
|
any proposal concerning the adoption, modification or operation of any scheme for enabling employees (including full time executive Directors) of the Company and/or any subsidiary thereof to acquire shares in the Company or any arrangement for the benefit of employees of the Company or any of its subsidiaries under which the Director benefits or may benefit; or
|
|
(vii)
|
any proposal concerning the giving of any indemnity pursuant to Article 134 or the discharge of the cost of any insurance cover purchased or maintained pursuant to Article134(f).
|
|
(c)
|
Where proposals are under consideration concerning the appointment (including fixing or varying the terms of appointment) of two or more Directors to offices or employments with the Company or any company in which the Company is interested, such proposals may be divided and considered in relation to each Director separately and in such case each of the Directors concerned (if not debarred from voting under
|
|
(d)
|
If a question arises at a meeting of Directors or of a committee of Directors as to the materiality of a Director’s interest or as to the right of any Director to vote and such question is not resolved by his voluntarily agreeing to abstain from voting, such question may be referred, before the conclusion of the meeting, to the chairman of the meeting and his ruling in relation to any Director other than himself shall be final and conclusive. In relation to the chairman, such question may be resolved by a resolution of a majority of the Directors (other than the chairman) present at the meeting at which the question first arises.
|
|
(e)
|
For the purposes of this Article, an interest of a person who is the spouse or a minor child of a Director shall be treated as an interest of the Director and, in relation to an alternate Director, an interest of his appointor shall be treated as an interest of the alternate Director.
|
|
(f)
|
The Company by Ordinary Resolution may suspend or relax the provisions of this Article to any extent or ratify any transaction not duly authorised by reason of a contravention of this Article.
|
94.
|
Entitlement to grant pensions
|
95.
|
Convening and regulation of Directors’ meetings
|
|
(a)
|
Subject to the provisions of these Articles, the Directors may regulate their proceedings as they think fit. A Director may, and the Secretary at the request of a Director shall, call a meeting of the Directors. Any Director may waive notice of any meeting and any such waiver may be retrospective. If the Directors so resolve, it shall not be necessary to give notice of a meeting of the Directors to any Director or alternate Director who, being a resident of the State, is for the time being absent from the State.
|
|
(b)
|
Notice of a meeting of the Directors or any other notice required to be given to, or by, a Director shall be deemed to be duly given to a Director if it is given to him personally or sent in writing by delivery, post, cable, telegram, telex, telefax, electronic mail or any other means of communication approved by the Directors to him at his last known address or any other address given by him to the Company for this purpose.
|
96.
|
Quorum for Directors’ meetings
|
|
(a)
|
The quorum for the transaction of the business of the Directors may be fixed by the Directors and unless so fixed at any other number shall be four Directors. A person who holds office only as an alternate Director shall, if his appointor is not present, be counted in the quorum but notwithstanding that such person may act as alternate Director for more than one Director he shall not count as more than one for the purposes of determining whether a quorum is present.
|
|
(b)
|
The continuing Directors or a sole Director may act notwithstanding any vacancies in their number but if the number of Directors is less than the number fixed as the quorum, they may act only for the purpose of filling vacancies or of calling a general meeting.
|
97.
|
Voting at Directors’ meetings
|
|
(a)
|
Questions arising at any meeting of Directors shall be decided by a majority of votes. Where there is an equality of votes, the chairman of the meeting shall not have a second or casting vote.
|
|
(b)
|
Subject as hereinafter provided, each Director present and voting shall have one vote and in addition to his own vote shall be entitled to one vote in respect of each other Director not present at the meeting or excluded from voting who shall have authorised him to cast such extra vote in his absence in respect of such meeting or resolution. Any such authority may relate generally to all meetings of the Directors or to any specified matters, meeting or meetings and must be in writing and may be sent by delivery, post, cable, telegram, telex, telefax, electronic mail or any other means of communication approved by the Directors and may bear a printed, facsimile, electronic signature or advanced electronic signature of the Director giving such authority. The authority must be delivered to the Secretary for filing prior to or must be produced at the first meeting at which a vote is to be cast pursuant thereto provided that no Director shall be entitled to any vote at a meeting on behalf of another Director pursuant to this paragraph if the other Director shall have appointed an alternate Director and that alternate Director is present at the meeting at which the Director proposes to vote pursuant to this paragraph.
|
98.
|
Telecommunication meetings
|
99.
|
Chairman of the board of Directors
|
100.
|
Validity of acts of Directors
|
|
(a)
|
All acts done by any meeting of the Directors or of a committee of Directors or by any person acting as a Director, notwithstanding that it be afterwards discovered that there was some defect in the appointment of any such Director or person acting as aforesaid, or that they or any of them were disqualified from holding office or had vacated office, shall be as valid as if every such person had been duly appointed and was qualified and had continued to be a Director and had been entitled to vote.
|
|
(b)
|
Any action required or permitted to be taken pursuant to authorisation voted at a meeting of the board of Directors or any committee of the board of Directors may be taken without a meeting if, prior or subsequent to such action, all members of the board of Directors or of such committee, as the case may be, consent thereto in writing and such written consents are filed with the minutes of the proceedings of the board of Directors or committee.
|
101.
|
Directors’ resolutions or other documents in writing
|
102.
|
Appointment of secretary
|
103.
|
Use of Seal
|
104.
|
Seal for use abroad
|
105.
|
Signature of sealed instruments
|
|
(a)
|
Every instrument to which the Seal shall be affixed shall be signed by a Director and shall also be signed by the Secretary or Assistant Secretary or by a second Director or by some other person appointed by the Directors for the purpose save that as regards any certificates for shares or debentures or other securities of the Company the Directors may determine by resolution that such signatures or either of them shall be dispensed with, or be printed thereon or affixed thereto by some method or system of mechanical signature provided that in any such case the certificate to be sealed shall have been approved for sealing by the Secretary or by the registrar of the Company or by the Auditors or by some other person appointed by the Directors for this purpose in writing (and, for the avoidance of doubt, it is hereby declared that it shall be sufficient for approval to be given and/or evidenced either in such manner (if any) as may be approved by or on behalf of the Directors or by having certificates initialled before sealing or by having certificates presented for sealing accompanied by a list thereof which has been initialled).
|
|
(b)
|
For the purposes of this Article, any instrument in electronic form to which the seal is required to be affixed, shall be sealed by means of an advanced electronic signature based on a qualified certificate of a Director and the Secretary or Assistant Secretary or of a second Director or by some other person appointed by the Directors for the purpose.
|
106.
|
Declaration of dividends
|
107.
|
Interim and fixed dividends
|
108.
|
Payment of dividends
|
|
(a)
|
Except as otherwise provided by the rights attached to shares, all dividends shall be declared and paid according to the amounts paid up (excluding premium) on the shares on which the dividend is paid. Subject as aforesaid, all dividends shall be apportioned and paid proportionately to the amounts paid or credited as paid (excluding premium) on the shares during any portion or portions of the period in respect of which the dividend is paid; but if any share is issued on terms providing that it shall rank for dividend as from a particular date, such share shall rank for dividend accordingly. For the purposes of this Article, no amount paid on a share in advance of calls shall be treated as paid on a share.
|
|
(b)
|
If several persons are registered as joint Holders of any share, any one of them may give effectual receipts for any dividend or other moneys payable on or in respect of the share.
|
109.
|
Deductions from dividends
|
110.
|
Dividends in specie
|
111.
|
Dividend payment mechanism
|
|
(a)
|
Any dividend or other moneys payable in respect of any share may be paid by cheque or warrant sent by post, at the risk of the person or persons entitled thereto, to the registered address of the Holder or, where there are joint Holders, to the registered address of that one of the joint Holders who is first named on the Register or to such person and to such address as the Holder or joint Holders may in writing direct. Every such cheque or warrant shall be made payable to the order of the person to whom it is sent and payment of the cheque or warrant shall be a good discharge to the Company. Any joint Holder or other person jointly entitled to a share as aforesaid may give receipts for any dividend or other moneys payable in respect of the share. Any such dividend or other distribution may also be paid by any other method (including payment in a currency other than euro, electronic funds transfer, direct debit, bank transfer or by means of a relevant system) which the Directors consider appropriate and any member who elects for such method of payment shall be deemed to have accepted all of the risks inherent therein. The debiting of the Company’s account in respect of the relevant amount shall be evidence of good discharge of the Company’s obligations in respect of any payment made by any such methods.
|
|
(b)
|
In respect of shares in uncertificated form, where the Company is authorized to do so by or on behalf of the Holder or joint Holders in such manner as the Company shall from time to time consider sufficient, the Company may also pay any such dividend, interest or other moneys by means of the relevant system concerned (subject always to the facilities and requirements of that relevant system). Every such payment made by means of the relevant system shall be made in such manner as may be consistent with the facilities and requirements of the relevant system concerned. Without prejudice to the generality of the foregoing, in respect of shares in uncertificated form, such payment may include the sending by the Company or by any person on its behalf of an instruction to the Approved Nominee or the operator of the relevant system to credit the cash memorandum account of the Holder or joint Holders.
|
112.
|
Dividends not to bear interest
|
113.
|
Payment to Holders on a particular date
|
114.
|
Unclaimed dividends
|
115.
|
Reserves
|
116.
|
Accounts
|
|
(a)
|
The Directors shall cause to be kept proper books of account, whether in the form of documents, electronic form or otherwise, that:-
|
|
(i)
|
correctly record and explain the transactions of the Company;
|
|
(ii)
|
will at any time enable the financial position of the Company to be determined with reasonable accuracy;
|
|
(iii)
|
will enable the Directors to ensure that any balance sheet, profit and loss account or income and expenditure account of the Company complies with the requirements of the Acts; and
|
|
(iv)
|
will enable the accounts of the Company to be readily and properly audited.
|
|
(b)
|
Books of account shall be kept on a continuous and consistent basis and entries therein shall be made in a timely manner and be consistent from year to year. Proper books of account shall not be deemed to be kept if there are not kept such books of account as are necessary to give a true and fair view of the state of the Company’s affairs and to explain its transactions.
|
|
(c)
|
The Company may send by post, electronic mail or any other means of electronic communication a summary financial statement to its shareholders or persons nominated by any member. The Company may meet, but shall be under no obligation to meet, any request from any of its members to be sent additional copies of its full report and accounts or summary financial statement or other communications with its members.
|
|
(d)
|
The books of account shall be kept at the Office or, subject to the provisions of the Acts, at such other place as the Directors think fit and shall be open at all reasonable times to the inspection of the Directors.
|
|
(e)
|
The Directors shall determine from time to time whether and to what extent and at what times and places and under what conditions or regulations the accounts and books of the Company or any of them shall be open to the inspection of members, not being Directors. No member (not being a Director) shall have any right of inspecting any account or book or document of the Company except as conferred by the Acts or authorised by the Directors or by the Company in general meeting.
|
|
(f)
|
In accordance with the provisions of the Acts, the Directors shall cause to be prepared and to be laid before the annual general meeting of the Company from time to time such profit and loss accounts, balance sheets, group accounts and reports as are required by the Acts to be prepared and laid before such meeting.
|
|
(g)
|
A copy of every balance sheet (including every document required by law to be annexed thereto) which is to be laid before the annual general meeting of the Company together with a copy of the Directors’ report and Auditors’ report shall be sent by post, electronic mail or any other means of electronic communication, not less than twenty-one Clear Days before the date of the annual general meeting, to every person entitled under the provisions of the Acts to receive them; provided that in the case of those documents sent by electronic mail or any other means of electronic communication, such documents shall be sent with the consent of the recipient, to the address of the recipient notified to the Company by the recipient for such purposes and the required number of copies of these documents shall be forwarded at the same
|
|
(h)
|
Auditors shall be appointed and their duties regulated in accordance with the Acts.
|
117.
|
Capitalisation of distributable profits and reserves
|
|
(a)
|
Without prejudice to any powers conferred on the Directors by these Articles, the Company in general meeting may resolve, upon the recommendation of the Directors, that any sum for the time being standing to the credit of any of the Company's reserves (including any capital redemption reserve fund or share premium account) or to the credit of the profit and loss account be capitalised and applied on behalf of the members who would have been entitled to receive that sum if it had been distributed by way of dividend and in the same proportions either in or towards paying up amounts for the time being unpaid on any shares held by them respectively, or in paying up in full unissued shares or debentures of the Company of a nominal amount equal to the sum capitalised (such shares or debentures to be allotted and distributed credited as fully paid up to and amongst such Holders in the proportions aforesaid) or partly in one way and partly in another, so, however, that the only purposes for which sums standing to the credit of the capital redemption reserve fund or the share premium account shall be applied shall be those permitted by the Acts.
|
|
(b)
|
The Directors may from time to time at their discretion, subject to the provisions of the Acts and, in particular, to their being duly authorised pursuant to Section 20 of the 1983 Act, to allot the relevant shares, to offer to the Holders of Ordinary Shares the right to elect to receive in lieu of any dividend or proposed dividend or part thereof an allotment of additional Ordinary Shares credited as fully paid. In any such case the following provisions shall apply:
|
|
(i)
|
The basis of allotment shall be determined by the Directors so that, as nearly as may be considered convenient in the Directors’ absolute discretion, the value (calculated by reference to the average quotation) of the additional Ordinary Shares (excluding any fractional entitlement) to be allotted in lieu of any amount of dividend shall equal such amount. For such purpose the “average quotation” of an Ordinary Share shall be the average of the five amounts resulting from determining whichever of the following ((A), (B) or (C) specified below) in respect of Ordinary Shares shall be appropriate for each of the first five business days on which Ordinary Shares are quoted “ex” the relevant dividend and as determined from the information published by the relevant securities exchange on which the Company’s shares are listed reporting the business done on each of these five business days:-
|
|
(A)
|
if there shall be more than one dealing reported for the day, the average of the prices at which such dealings took place; or
|
|
(B)
|
if there shall be only one dealing reported for the day, the price at which such dealing took place; or
|
|
(C)
|
if there shall not be any dealing reported for the day, the average of the closing bid and offer prices for the day;
|
|
(ii)
|
The Directors shall give notice in writing (whether in electronic form or otherwise) to the Holders of Ordinary Shares of the right of election offered to them and shall send with or following such notice forms of election and specify the procedure to be followed and the place at which, and the latest date and time by which, duly completed forms of election must be lodged in order to be effective. The Directors may also issue forms under which Holders may elect in advance to receive new Ordinary Shares instead of dividends in respect of future dividends not yet declared (and, therefore, in respect of which the basis of allotment shall not yet have been determined).
|
|
(iii)
|
The dividend (or that part of the dividend in respect of which a right of election has been offered) shall not be payable on Ordinary Shares in respect of which the right of election as aforesaid has been duly exercised (the “Subject Ordinary Shares”) and in lieu thereof additional Ordinary Shares (but not any fraction of a share) shall be allotted to the Holders of the Subject Ordinary Shares on the basis of allotment determined aforesaid and for such purpose the Directors shall capitalise, out of such of the sums standing to the credit of any of the Company’s reserves (including any capital redemption reserve fund or share premium account) or to the credit of the profit and loss account as the Directors may determine, a sum equal to the aggregate nominal amount of additional Ordinary Shares to be allotted on such basis and apply the same in paying up in full the appropriate number of unissued Ordinary Shares for allotment and distribution to and amongst the Holders of the Subject Ordinary Shares on such basis.
|
|
(c)
|
The additional Ordinary Shares so allotted shall rank pari passu in all respects with the fully paid Ordinary Shares then in issue save only as regards participation in the relevant dividend or share election in lieu.
|
|
(d)
|
The Directors may do all acts and things considered necessary or expedient to give effect to any such capitalisation with full power to the Directors to make such provisions as they think fit where shares would otherwise have been distributable in fractions (including provisions whereby, in whole or in part, fractional entitlements are disregarded and the benefit of fractional entitlements accrues to the Company rather than to the Holders concerned). The Directors may authorise any person to enter on behalf of all the Holders interested into an agreement with the Company providing for such capitalisation and matters incidental thereto and any agreement made under such authority shall be effective and binding on all concerned.
|
|
(e)
|
The Directors may on any occasion determine that rights of election shall not be offered to any Holders of Ordinary Shares who are citizens or residents of any territory where the making or publication of an offer of rights of election or any exercise of rights of election or any purported acceptance of the same would or might be unlawful, and in such event the provisions aforesaid shall be read and construed subject to such determination.
|
118.
|
Capitalisation of non-distributable profits and reserves
|
119.
|
Implementation of capitalisation issues
|
120.
|
Notices in writing
|
121.
|
Service of notices
|
|
(a)
|
A notice or document (including a share certificate) to be given, served or delivered in pursuance of these Articles may be given to, served on or delivered to any member by the Company: -
|
|
(i)
|
by handing same to him or his authorised agent;
|
|
(ii)
|
by leaving the same at his registered address;
|
|
(iii)
|
by sending the same by the post in a pre-paid cover addressed to him at his registered address; or
|
|
(iv)
|
by sending, with the consent of the member, the same by means of electronic mail or other means of electronic communication approved by the Directors, with the consent of the member, to the address of the member notified to the
|
|
(b)
|
Where a notice or document is given, served or delivered pursuant to sub- paragraph (a) (i) or (ii) of this Article, the giving, service or delivery thereof shall be deemed to have been effected at the time the same was handed to the member or his authorised agent, or left at his registered address (as the case may be).
|
|
(c)
|
Where a notice or document is given, served or delivered pursuant to sub-paragraph (a) (iii) of this Article, the giving, service or delivery thereof shall be deemed to have been effected at the expiration of twenty-four hours after the cover containing it was posted. In proving service or delivery it shall be sufficient to prove that such cover was properly addressed, stamped and posted.
|
|
(d)
|
Where a notice or document is given, served or delivered pursuant to sub-paragraph (a)(iv) of this Article, the giving, service or delivery thereof shall be deemed to have been effected at the expiration of forty-eight hours after despatch.
|
|
(e)
|
Every legal personal representative, committee, receiver, curator bonis or other legal curator, assignee in bankruptcy, examiner or liquidator of a member shall be bound by a notice given as aforesaid if sent to the last registered address of such member, or, in the event of notice given or delivered pursuant to sub-paragraph (a)(iv), if sent to the address notified by the Company by the member for such purpose notwithstanding that the Company may have notice of the death, lunacy, bankruptcy, liquidation or disability of such member.
|
|
(f)
|
Without prejudice to the provisions of sub-paragraphs (a) (i) and (ii) of this Article, if at any time by reason of the suspension or curtailment of postal services within the State, the Company is unable effectively to convene a general meeting by notices sent through the post, a general meeting may be convened by a notice issued through any regulatory news service of any securities exchange on which the Company’s shares are listed and such notice shall be deemed to have been duly served on all members entitled thereto at noon on the day on which the said advertisement or advertisements shall appear. In any such case the Company shall put a full copy of the notice of the general meeting on its website and shall send confirmatory copies of the notice through the post to those members whose registered addresses are outside the State (if or to the extent that in the opinion of the Directors it is practical so to do) or are in areas of the State unaffected by such suspension or curtailment of postal services and if at least ninety-six hours prior to the time appointed for the holding of the meeting the posting of notices to members in the State, or any part thereof which was previously affected, has become practical in the opinion of the Directors, the Directors shall send forthwith confirmatory copies of the notice by post to such members. The accidental omission to give any such confirmatory copy of a notice of a meeting to, or the non-receipt of any such confirmatory copy by, any person entitled to receive the same shall not invalidate the proceedings at the meeting.
|
|
(g)
|
Notwithstanding anything contained in this Article the Company shall not be obliged to take account of or make any investigations as to the existence of any suspension or curtailment of postal services within or in relation to all or any part of any jurisdiction or other area other than the State.
|
|
(h)
|
Any requirement in these Articles for the consent of a member in regard to the receipt by such member of electronic mail or other means of electronic communications approved by the Directors, including the receipt of the Company's audited accounts and the Directors' and Auditor's reports thereon, shall be deemed to have been
|
122.
|
Service on joint Holders
|
123.
|
Service on transfer or transmission of shares
|
|
(a)
|
Every person who becomes entitled to a share shall before his name is entered in the Register in respect of the share, be bound by any notice in respect of that share which has been duly given to a person from whom he derives his title provided that the provisions of this paragraph shall not apply to any notice served under Article 68 unless, under the provisions of Article 68(b), it is a notice which continues to have effect notwithstanding the registration of a transfer of the shares to which it relates.
|
|
(b)
|
Without prejudice to the provisions of these Articles allowing a meeting to be convened by a notice issued through any regulatory news service of any securities exchange on which the Company’s shares are listed, a notice may be given by the Company to the persons entitled to a share in consequence of the death or bankruptcy of a member by sending or delivering it, in any manner authorised by these Articles for the giving of notice to a member, addressed to them at the address, if any, supplied by them for that purpose. Until such an address has been supplied, a notice may be given in any manner in which it might have been given if the death or bankruptcy had not occurred.
|
124.
|
Signature to notices
|
125.
|
Deemed receipt of notices
|
126.
|
Distribution on winding up
|
127.
|
Sale by a liquidator
|
|
(a)
|
In case of a sale by the liquidator under Section 260 of the Companies Act, 1963, the liquidator may by the contract of sale agree so as to bind all the members for the allotment to the members direct of the proceeds of sale in proportion to their respective interests in the Company and may further by the contract limit a time at the expiration of which obligations or shares not accepted or required to be sold shall be deemed to have been irrevocably refused and be at the disposal of the Company, but so that nothing herein contained shall be taken to diminish, prejudice or affect the rights of dissenting members conferred by the said Section.
|
|
(b)
|
The power of sale of the liquidator shall include a power to sell wholly or partially for debentures, debenture stock, or other obligations of another company, either then already constituted or about to be constituted for the purpose of carrying out the sale.
|
128.
|
Distribution in specie
|
129.
|
Minutes of meetings
|
|
(a)
|
of all appointments of officers and committees made by the Directors and of their salary or remuneration;
|
|
(b)
|
of the names of Directors present at every meeting of the Directors and of the names of any Directors and of all other members thereof present at every meeting of any committee appointed by the Directors; and
|
|
(c)
|
of all resolutions and proceedings of all meetings of the Company and of the Holders of any class of shares in the Company and of the Directors and of committees appointed by the Directors.
|
130.
|
Inspection and secrecy
|
131.
|
Closing Register of Holders or Fixing Record Date
|
|
(a)
|
For the purpose of determining Holders entitled to notice of or to vote at any meeting of Holders or any adjournment thereof, or Holders entitled to receive payment of any dividend, or in order to make a determination of Holders for any other proper purpose, the Board may provide, subject to the requirements of section 121 of the 1963 Act, that the Register of Holders shall be closed for transfers at such times and for such periods, not exceeding in the whole thirty (30) days in each year. If the Register of Holders shall be so closed for the purpose of determining Holders entitled to notice of or to vote at a meeting of Holders such Register of Holders shall be so closed for at least five (5) days immediately preceding such meeting and the record date for such determination shall be the date of the closure of the Register of Holders.
|
|
(b)
|
In lieu of, or apart from, closing the Register of Holders, the Board may fix in advance a date as the record date (a) for any such determination of Holders entitled to notice of or to vote at a meeting of the Holders, which record date shall not be more than ninety (90) days nor less than ten (10) days before the date of such meeting, and (b) for the purpose of determining the Holders entitled to receive payment of any dividend, or in order to make a determination of Holders for any other proper purpose, which record date shall not be more than ninety (90) days prior to the date of payment of such dividend or the taking of any action to which such determination of Holders is relevant. The record date shall not precede the date upon which the resolution fixing the record date is adopted by the Directors.
|
|
(c)
|
If the Register of Holders is not so closed and no record date is fixed for the determination of Holders entitled to notice of or to vote at a meeting of Holders or Holders entitled to receive payment of a dividend, the date immediately preceding the date on which notice of the meeting is deemed given under these Articles or the date on which the resolution of the Directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of Holders. When a determination of Holders entitled to vote at any meeting of Holders has been made as provided in these Articles, such determination shall apply to any adjournment thereof; provided, however, that the Directors may fix a new record date of the adjourned meeting, if they think fit.
|
132.
|
Destruction of records
|
|
(a)
|
the provision aforesaid shall apply only to the destruction of a document in good faith and without notice of any claim (regardless of the parties thereto) to which the document might be relevant;
|
|
(b)
|
nothing herein contained shall be construed as imposing upon the Company any liability in respect of the destruction of any document earlier than as aforesaid or in any other circumstances which would not attach to the Company in the absence of this Article; and
|
|
(c)
|
references herein to the destruction of any document include references to the disposal thereof in any manner.
|
133.
|
Untraced shareholders
|
|
(a)
|
The Company shall be entitled to sell at the best price reasonably obtainable any share of a Holder or any share to which a person is entitled by transmission if and provided that:-
|
|
(i)
|
for a period of twelve years no cheque or warrant sent by the Company through the post in a pre-paid letter addressed to the Holder or to the person entitled by transmission to the share at his address on the Register or the other last known address given by the Holder or the person entitled by transmission to which cheques and warrants are to be sent has been cashed and no communication has been received by the Company from the Holder or the person entitled by transmission (provided that during such twelve year period at least three dividends shall have become payable in respect of such share);
|
|
(ii)
|
at the expiration of the said period of twelve years by advertisement in a national daily newspaper published in the State and in a newspaper circulating in the area in which the address referred to in sub-paragraph (a)(i) of this Article is located the Company has given notice of its intention to sell such share;
|
|
(iii)
|
during the further period of three months after the date of the advertisement and prior to the exercise of the power of sale the Company has not received any communication from the Holder or person entitled by transmission; and
|
|
(iv)
|
the Company has first given notice in writing to the relevant securities exchange on which the Company’s shares are listed of its intention to sell such shares.
|
|
(b)
|
To give effect to any such sale the Company may appoint any person to execute as transferor an instrument of transfer of such share and such instrument of transfer shall be as effective as if it had been executed by the Holder or the person entitled by the transmission to such share. The transferee shall be entered in the Register as the Holder of the shares comprised in any such transfer and he shall not be bound to see to the application of the purchase moneys nor shall his title to the shares be affected by any irregularity in or invalidity of the proceedings in reference to the sale.
|
|
(c)
|
The Company shall account to the Holder or other person entitled to such share for the net proceeds of such sale by carrying all moneys in respect thereof to a separate account which shall be a permanent debt of the Company and the Company shall be deemed to be a debtor and not a trustee in respect thereof for such Holder or other person. Moneys carried to such separate account may be either employed in the business of the Company or invested in such investments as the Directors may think fit, from time to time.
|
|
(d)
|
Where a share, which is to be sold as provided in this Part XXV, is held in uncertificated form, the Directors may authorise some person to do all that is necessary under the 1996 Regulations or the UK Regulations (as applicable) to change such share into certificated form prior to its sale under this Article.
|
134.
|
Indemnity
|
|
(a)
|
Subject to the provisions of and so far as may be admitted by the Companies Acts, every Director and Secretary shall be entitled to be indemnified by the Company against all costs, charges, losses, expenses and liabilities incurred by him or her in the execution and discharge of his or her duties or in relation thereto including any liability incurred by him or her in defending any proceedings, civil or criminal, which relate to anything done or omitted or alleged to have been done or omitted by him or her as an officer or employee of the Company and in which judgement is given in his or her favour (or the proceedings are otherwise disposed of without any finding or admission of any material breach of duty on his or his or her part) or in which he or she is acquitted or in connection with any application under any statute for relief from liability in respect of any such act or omission in which relief is granted to him or her by the Court.
|
|
(b)
|
As far as permissible under the Companies Acts, the Company shall indemnify any current or former executive of the Company (excluding any Directors or Secretary) or any person who is serving or has served at the request of the Company as a director, executive or trustee of another company, joint venture, trust or other enterprise against expenses, including attorneys’ fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by him or her in connection with any threatened, pending, or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, other than an action by or in the right of the Company, to which he or she, or he or she was, is, or is threatened to be made a party by reason of the fact that he or she, or he or she is or was such a director, executive or trustee, provided always that the indemnity contained in this Article 134(b) shall not extend to any matter which would render it void pursuant to the Companies Acts.
|
|
(c)
|
In the case of any threatened, pending or completed action, suit or proceeding by or in the right of the Company, the Company shall indemnify each person indicated in Article 134(b) of this Article against expenses, including attorneys’ fees, actually and reasonably incurred in connection with the defence or the settlement thereof, except no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for fraud or dishonesty in the
|
|
(d)
|
As far as permissible under the Companies Acts, expenses, including attorneys’ fees, incurred in defending any action, suit or proceeding referred to in Articles 134(b) and 134(c) of this Article may be paid by the Company in advance of the final disposition of such action, suit or proceeding as authorised by the Board in the specific case upon receipt of an undertaking by or on behalf of the director, executive or trustee, or other indemnitee to repay such amount, unless it shall ultimately be determined that he or she is entitled to be indemnified by the Company as authorised by these Articles.
|
|
(e)
|
It being the policy of the Company that indemnification of the persons specified in this Article shall be made to the fullest extent permitted by law, the indemnification provided by this Article shall not be deemed exclusive (a) of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the Memorandum, Articles, any agreement, any insurance purchased by the Company, any vote of Holders or disinterested Directors, or pursuant to the direction (however embodied) of any court of competent jurisdiction, or otherwise, both as to action in her official capacity and as to action in another capacity while holding such office, or (b) of the power of the Company to indemnify any person who is or was an employee or agent of the Company or of another company, joint venture, trust or other enterprise which he or she is serving or has served at the request of the Company, to the same extent and in the same situations and subject to the same determinations as are hereinabove set forth with respect to a director, executive or trustee. As used in this paragraph (b), references to the “Company” include all constituent companies in a consolidation or merger in which the Company or a predecessor to the Company by consolidation or merger was involved. The indemnification provided by this Article shall continue as to a person who has ceased to be a director, executive or trustee and shall inure to the benefit of the heirs, executors, and administrators of such a person.
|
|
(f)
|
Subject to the provisions of this Article, the Directors shall have the power to purchase and maintain insurance for or for the benefit of any persons who are or were at any time, directors, officers, or employees of the Company, or of any other company which is its holding company or in which the Company or such holding company has any interest whether direct or indirect or which is in any way allied to or associated with the Company, or of any subsidiary undertaking of the Company or any such other company, or who are or were at any time trustees of any pension fund in which employees of the Company, or any other company or such subsidiary undertaking are interested, including (without prejudice to the generality of the foregoing) insurance against any such liability as referred to in Section 200 of the 1963 Act or otherwise and/or any liability incurred by such persons in respect of any act or omission when in the actual or purported execution or discharge of their duties or in the exercise or purported exercise of their powers or otherwise in relation to their duties, powers or offices in relation to the Company or any such other company, subsidiary undertaking or pension fund.
|
|
(g)
|
The Company may additionally indemnify any employee or agent of the Company or any director, executive, employee or agent of any of its subsidiaries to the fullest extent permitted by law.
|
1.
|
The Scheme Transaction will be conditional upon the Scheme becoming effective and unconditional by not later than the End Date (or such earlier date as may be specified by the Panel, or such later date as Chiquita and Fyffes may, with (if required) the consent of the Panel, agree and (if required) the High Court may allow).
|
||
2.
|
The Scheme will be conditional upon:
|
||
(a)
|
the approval of the Scheme by a majority in number of the Fyffes Shareholders representing three-fourths (75%) or more in value of the Fyffes Shares, at the Voting Record Time, held by such holders, present and voting either in person or by proxy, at the Court Meeting (or at any adjournment of such meeting);
|
||
(b)
|
the resolutions to be proposed at the Fyffes Extraordinary General Meeting for the purposes of approving and implementing the Scheme and the reduction of capital of Fyffes, authorizing the directors of Fyffes to allot new ordinary shares in Fyffes to ChiquitaFyffes on the Scheme and the reduction of capital becoming effective, making the necessary amendments to the articles of association of Fyffes to provide that any ordinary shares of Fyffes that are issued at or after the record time for the Scheme are acquired by ChiquitaFyffes for the Scheme Consideration and approving such other matters as Fyffes reasonably determines to be necessary for the purposes of implementing the Scheme Transaction or, subject to the consent of Chiquita (such consent to be not unreasonably withheld, conditioned or delayed), desirable for the purposes of implementing the Scheme Transaction and set out in the notice of the Fyffes Extraordinary General Meeting being duly passed by the requisite majority of Fyffes Shareholders at the Fyffes Extraordinary General Meeting (or at any adjournment of such meeting);
|
||
(c)
|
the sanction by the High Court (with or without modification) of the Scheme pursuant to Section 201 of the Act and the confirmation of the reduction of capital involved
|
therein by the High Court (the date on which the condition in this paragraph 2(c) is satisfied, the “Sanction Date”); and
|
|||
(d)
|
office copies of the Court Order and the minute required by Section 75 of the Act in respect of the reduction (referred to in paragraph 2(c)), being delivered for registration to the Registrar of Companies and registration of the Court Order and minute confirming the reduction of capital involved in the Scheme by the Registrar of Companies.
|
||
3.
|
The Chiquita Parties and Fyffes have agreed that, subject to paragraph 6, the Scheme Transaction will also be conditional upon the following matters having been satisfied or waived on or before the Sanction Date:
|
||
(a)
|
the adoption of the Transaction Agreement by the affirmative vote of a majority of the votes cast by Chiquita Shareholders entitled to vote thereon, as required by the New Jersey Business Corporation Act;
|
||
(b)
|
the NYSE shall have authorised, and not withdrawn such authorisation, for listing all of the Share Consideration to be issued in the Scheme Transaction and all of the ChiquitaFyffes Shares (including any ChiquitaFyffes Shares issuable upon the exercise of outstanding equity awards and/or conversion of the Convertible Notes) to be delivered pursuant to the Merger subject to satisfaction of any conditions to which such approval is expressed to be subject;
|
||
(c)
|
all applicable waiting periods under the HSR Act shall have expired or been terminated, in each case in connection with the Combination and/or the Merger, as the case may be;
|
||
(d)
|
to the extent that all or part of the Scheme Transaction and/or the Merger, as the case may be, is referred to the European Commission (the “Commission”) pursuant to Article 4(5) or Article 22 of the EC Merger Regulation (the “EUMR”) and the Commission obtains jurisdiction under the EUMR to examine the Scheme Transaction and/or the Merger, as the case may be, the issuing by the Commission of a final decision under Article 6.1(b), Article 8(1) or Article 8(2) of the EUMR, declaring the Combination and/or the Merger, as the case may be, compatible with the common market subject to the fulfillment of one or more conditions or obligations, if any, as may be agreed to by the parties pursuant to clause 7.2 of the Transaction Agreement;
|
||
(e)
|
to the extent that the Commission has jurisdiction to examine all or part of the Scheme Transaction and/or the Merger, as the case may be, under the EUMR and subsequently all or part of the Scheme Transaction and/or the Merger, as the case may be, is referred by the Commission under Articles 9(1) or 9(5) of the EUMR, or under Article 6(1) of Protocol 24 of the Agreement on the European Economic Area, to the Relevant Authority of one or member countries of the European Economic Area, the issuing by such Relevant Authority or Authorities (in case of a partial referral, in conjunction with a final decision of the Commission) of a final decision or decisions which satisfy (or together satisfy) Condition 3(d) above (that clause being interpreted mutatis mutandis);
|
||
(f)
|
to the extent that the Relevant Authority or Authorities of the United Kingdom, Germany, Poland and/or the Netherlands has jurisdiction under national Antitrust Laws to examine the Scheme Transaction, and/or the Merger, as the case may be, the issuing by such Relevant Authority or Authorities of a final decision or decisions which satisfy (or together satisfy) Condition 3(d) above (Condition 3(d) being
|
interpreted mutatis mutandis) and/or all applicable waiting periods having expired, lapsed or been terminated (as appropriate) without the Scheme Transaction and/or the Merger, as the case may be, being prohibited;
|
|||
(g)
|
to the extent that Part 3 of the Competition Act is applicable:
|
||
(i)
|
the Competition Authority, in accordance with Section 21(2)(a) of the Competition Act, having informed Chiquita that the Scheme Transaction and/or the Merger, as the case may be, may be put into effect;
|
||
(ii)
|
the period specified in Section 21(2) of the Competition Act having elapsed without the Competition Authority having informed Chiquita of the determination (if any) which it has made under Section 21(2) of the Competition Act;
|
||
(iii)
|
the Competition Authority, in accordance with Section 22(4)(a) of the Competition Act, having furnished to Chiquita a copy of its determination (if any), in accordance with Section 22(3)(a) of the Competition Act, that the Scheme Transaction and/or the Merger, as the case may be, may be put into effect;
|
||
(iv)
|
the Competition Authority, in accordance with Section 22(4)(a) of the Competition Act, having furnished to Chiquita a copy of its determination (if any), in accordance with Section 22(3)(c) of the Competition Act, that the Scheme Transaction, and/or the Merger, as the case may be, may be put into effect subject to conditions specified by the Competition Authority being complied with and such conditions being acceptable to Chiquita and Fyffes, in accordance with Section 7.2 of the Transaction Agreement; or
|
||
(v)
|
the period of four months after the appropriate date (as defined in Section 19(6) of the Competition Act) having elapsed without the Competition Authority having made a determination under Section 22(3) of the Competition Act in relation to the Scheme Transaction and/or the Merger, as the case may be;
|
||
(h)
|
all other required regulatory clearances shall have been obtained and remain in full force and effect and all applicable waiting periods shall have expired, lapsed or been terminated (as appropriate), in each case in connection with the Scheme Transaction and/or the Merger, as the case may be, under the antitrust, competition or foreign investment laws of any applicable jurisdiction in which Fyffes or Chiquita conducts its operations that has or asserts jurisdiction over the Transaction Agreement, the Scheme Transaction, the Merger or the Scheme if the failure to obtain regulatory clearance in such jurisdiction would reasonably be expected to result in a material adverse effect on (A) ChiquitaFyffes and its Subsidiaries, taken as a whole (following the consummation of the Scheme Transaction and the Merger) or (B) the benefits anticipated to be realized by Chiquita and Fyffes as a result of the transactions contemplated by the Transaction Agreement;
|
||
(i)
|
no injunction, restraint or prohibition by any court of competent jurisdiction or Antitrust Order by any Relevant Authority which prohibits consummation of the Scheme Transaction or the Merger or is reasonably likely, individually or in the aggregate, to constitute (if not removed) a Burdensome Condition shall have been entered and shall continue to be in effect;
|
||
(j)
|
the Form S-4 shall have become effective under the Securities Act and shall not be
|
the subject of any stop order or proceedings seeking any stop order; and
|
|||
(k)
|
the Transaction Agreement shall not have been terminated in accordance with its terms.
|
||
4.
|
The Chiquita Parties and Fyffes have agreed that, subject to paragraph 6, the Chiquita Parties’ obligation to effect the Scheme Transaction will also be conditional upon the following matters having been satisfied (or waived by Chiquita) on or before the Sanction Date:
|
||
(a)
|
(i) (x) The representations and warranties of Fyffes set forth in clauses 6.1(b)(i), the second sentence of Clause 6.1(j) and 6.1(t) of the Transaction Agreement (which representations and warranties are listed below in Part B and contained in the Transaction Agreement) shall be true and correct (except in the cause of clause 6.1(b)(i) for any de minimis inaccuracy) at and as of the date of the Transaction Agreement and at and as of the Sanction Date as though made at and as of the Sanction Date, (y) the representations and warranties of Fyffes set forth in clauses 6.1(b)(ii) to (v) (inclusive) (to the extent relating to shares in the capital of Fyffes) (which representations and warranties are listed below in Part B and contained in the Transaction Agreement) shall be true and correct in all material respects at and as of the date of the Transaction Agreement and at and as of the Sanction Date as though made at and as of the Sanction Date and (z) the representations and warranties of Fyffes set forth in clause 6.1(c)(i) of the Transaction Agreement shall be true and correct other than as would not materially impede or prevent the consummation of the Scheme Transaction at and as of the date of the Transaction Agreement and at and as of the Sanction Date as though made at and as of the Sanction Date (the representations and warranties referred to in this sub-clause (i), the “Specified Fyffes Representations” are listed in Part B of this Appendix III and contained in the Transaction Agreement), (ii) the representations and warranties of Fyffes set forth in clause 6.1 of the Transaction Agreement other than the Specified Fyffes Representations (which representations and warranties are listed below in Part B and contained in the Transaction Agreement) shall be true and correct (without giving effect to any materiality qualifiers contained therein) at and as of the date of the Transaction Agreement and at and as of the Sanction Date as though made at and as of the Sanction Date, except for such failures to be true and correct as would not, individually or in the aggregate, reasonably be expected to have a Fyffes Material Adverse Effect; provided that with respect to sub-clauses (i) and (ii) hereof, representations and warranties that expressly relate to a particular date or period shall be true and correct (in the manner set forth in sub-clauses (i) and/or (ii), as applicable), only with respect to such date or period;
|
||
(b)
|
Fyffes shall have in all material respects performed all obligations and complied with all covenants required by the Transaction Agreement to be performed or complied with by it prior to the Sanction Date; and
|
||
(c)
|
Fyffes shall have delivered to Chiquita a certificate, dated as of the Sanction Date and signed by an executive officer of Fyffes, certifying on behalf of Fyffes to the effect that the conditions set forth in paragraphs 4(a) and 4(b) have been satisfied.
|
||
5.
|
The Chiquita Parties and Fyffes have agreed that, subject to paragraph 6, Fyffes obligation to effect the Scheme Transaction will also be conditional upon the following matters having been satisfied (or waived by Fyffes) on or before the Sanction Date:
|
||
(a)
|
(i) (x) The representations and warranties of Chiquita and ChiquitaFyffes set forth in clauses 6.2(b)(i), the second sentence of 6.2(j) and 6.2(u) of the Transaction Agreement (which representations and warranties are listed below in Part B and
|
contained in the Transaction Agreement) shall be true and correct (except in the case of clause 6.2(b)(i) for any de minimis inaccuracy) at and as of the date of the Transaction Agreement and at and as of the Sanction Date as though made at and as of the Sanction Date, (y) the representations and warranties of Chiquita and ChiquitaFyffes set forth in clauses 6.2(b)(ii) and 6.2(b)(iii) of the Transaction Agreement (to the extent relating to shares in the capital of Chiquita) (which representations and warranties are listed below in Part B and contained in the Transaction Agreement) shall be true and correct in all material respects at and as of the date of the Transaction Agreement and at and as of the Sanction Date as though made at and as of the Sanction Date and (z) the representations and warranties of Chiquita and ChiquitaFyffes set forth in clause 6.2(c)(i) of the Transaction Agreement shall be true and correct other than as would not materially impede or prevent the consummation of the Scheme Transaction at and as of the date of the Transaction Agreement and at and as of the Sanction Date as though made at and as of the Sanction Date (the representations and warranties referred to in this sub-clause (i), the “Specified Chiquita Representations” are listed in Part B of this Appendix III and contained in the Transaction Agreement), (ii) the representations and warranties of Chiquita and ChiquitaFyffes set forth in clause 6.2 of the Transaction Agreement other than the Specified Chiquita Representations (which representations and warranties are listed below in Part B and contained in the Transaction Agreement) shall be true and correct (without giving effect to any materiality qualifiers contained therein) at and as of the date of the Transaction Agreement and at and as of the Sanction Date as though made at and as of the Sanction Date, except for such failures to be true and correct as would not, individually or in the aggregate, reasonably be expected to have a Chiquita Material Adverse Effect; provided that with respect to sub-clauses (i) and (ii) hereof, representations and warranties that expressly relate to a particular date or period shall be true and correct (in the manner set forth in sub-clauses (i) and/or (ii), as applicable), only with respect to such date or period;
|
|||
(b)
|
The Chiquita Parties shall have in all material respects performed all obligations and complied with all covenants required by the Transaction Agreement to be performed or complied with by them prior to the Sanction Date; and
|
||
(c)
|
Chiquita shall have delivered to Fyffes a certificate, dated as of the Sanction Date and signed by an executive officer of Chiquita, certifying on behalf of Chiquita to the effect that the conditions set forth in paragraphs 5(a) and 5(b) have been satisfied.
|
||
6.
|
Subject to the requirements of the Panel:
|
||
(a)
|
Chiquita and Fyffes reserve the right (but shall be under no obligation) to waive (to the extent permitted by applicable Law), in whole or in part, all or any of the conditions in paragraph 3 (provided that both parties agree to any such waiver);
|
||
(b)
|
Chiquita reserves the right (but shall be under no obligation) to waive, in whole or in part, all or any of conditions in paragraph 4; and
|
||
(c)
|
Fyffes reserves the right (but shall be under no obligation) to waive, in whole or in part, all or any of the conditions in paragraph 5.
|
||
7.
|
The Scheme will lapse unless it is effective on or prior to the End Date.
|
||
8.
|
If Chiquita is required to make an offer for Fyffes Shares under the provisions of Rule 9 of the Takeover Rules, Chiquita may make such alterations to any of the conditions set out in paragraphs 1, 2, 3, 4 and 5 above as are necessary to comply with the provisions of that rule.
|
9.
|
Chiquita reserves the right, subject to the prior written approval of the Panel, to effect the Scheme Transaction by way of a takeover offer in the circumstances described in and subject to the terms of clause 3.6 of the Transaction Agreement. Without limiting clause 3.6 of the Transaction Agreement, in such event, such offer will be implemented on terms and conditions that are at least as favourable to the Fyffes Shareholders (except for an acceptance condition set at 80% of the nominal value of the Fyffes Shares to which such an offer relates and which are not already in the beneficial ownership of Chiquita so far as applicable) as those which would apply in relation to the Scheme.
|
Transaction Agreement Clause Reference
|
The Specified Fyffes Representations
|
Clause 6.1(b)(i) (Capital)
|
The second sentence of Clause 6.1(j) (Absence of Certain Changes or Events)
|
Clause 6.1(t) (Finders or Brokers)
|
Clause 6.1(b)(ii) to Clause 6.1(b)(v) (inclusive) (Capital)
|
Clause 6.1(c)(i) (Corporate Authority Relative to this Agreement; No Violation)
|
Transaction Agreement Clause Reference
|
The representations and warranties of Fyffes other than the Specified Fyffes Representations
|
Clause 6.1(a) (Qualification, Organisation, Subsidiaries, etc.) and Clause 6.1(a)(i) (Subsidiaries)
|
Clause 6.1(b)(vi) (Capital)
|
Clause 6.1(c)(ii) and Clause 6.1(c)(iii) (Corporate Authority Relative to this Agreement; No Violation)
|
Clause 6.1(d)(i) and Clause 6.1(d)(ii) (Reports and Financial Statements)
|
Clause 6.1(e) (Internal Controls and Procedures)
|
Clause 6.1(f) (No Undisclosed Liabilities)
|
Clause 6.1(g)(i) to Clause 6.1(g)(iii) (inclusive) (Compliance with Law; Permits)
|
Clause 6.1(h)(i) to Clause 6.1(h)(vii) (inclusive) (Environmental Law and Regulations)
|
Clause 6.1(i)(i) to Clause 6.1(i)(iv) (inclusive) (Employee Benefit Plans)
|
Clause 6.1(j) (excluding the second sentence) (Absence of Certain Changes or Events)
|
Clause 6.1(k) (Investigations; Litigation)
|
Clause 6.1(l) (Information Supplied)
|
Clause 6.1(m)(i) and Clause 6.1(m)(ii) (Tax Matters)
|
Clause 6.1(n)(i) and Clause 6.1(n)(ii) (Labour Matters)
|
Clause 6.1(o) (Intellectual Property)
|
Clause 6.1(p)(i) to Clause 6.1(p)(viii) (inclusive) (Real Property)
|
Clause 6.1(q) (Required Vote of Fyffes Shareholders)
|
Clause 6.1(r)(i) and Clause 6.1(r)(ii) (Material Contracts)
|
Clause 6.1(s) (Insurance)
|
Clause 6.1(u)(i) and Clause 6.1(u)(ii) (Anti-Corruption)
|
Clause 6.1(v) (No Other Representations)
|
Transaction Agreement Clause Reference
|
The Specified Chiquita Representations
|
6.2(b)(i) (Capital Stock)
|
The second sentence of Clause 6.2(j) (Absence of Certain Changes or Events)
|
Clause 6.2(u) (Finders or Brokers)
|
Clause 6.2(b)(ii) and Clause 6.2(b)(iii) (Capital Stock)
|
Clause 6.2(c)(i) (Corporate Authority Relative to this Agreement; No Violation)
|
Transaction Agreement Clause Reference
|
The representations and warranties of Chiquita other than the Specified Chiquita Representations
|
Clause 6.2(a)(Qualification, Organisation, Subsidiaries, etc.), Clause 6.2(a)(i) (Subsidiaries) and Clause 6.2(a)(ii) (Chiquita Merger Parties)
|
Clause 6.2(b)(iv) to Clause 6.2(b)(vi) (Capital Stock)
|
Clause 6.2(c)(ii) and Clause 6.2(c)(iii) (Corporate Authority Relative to this Agreement; No Violation)
|
Clause 6.2(d)(i) and Clause 6.2(d)(ii) (Reports and Financial Statements)
|
Clause 6.2(e) (Internal Controls and Procedures)
|
Clause 6.2(f) (No Undisclosed Liabilities)
|
Clause 6.2(g)(i) to Clause 6.2(g)(iii) (inclusive) (Compliance with Law; Permits)
|
Clause 6.2(h)(i) to Clause 6.2(h)(vi) (inclusive) (Environmental Law and Regulations)
|
Clause 6.2(i)(i) to Clause 6.2(i)(v) (inclusive) (Employee Benefit Plans)
|
Clause 6.2(j) (excluding the second sentence) (Absence of Certain Changes or Events)
|
Clause 6.2(k) (Investigations; Litigation)
|
Clause 6.2(l) (Information Supplied)
|
Clause 6.2(m)(i) to Clause 6.2(m)(x) (inclusive) (Tax Matters)
|
Clause 6.2(n)(i) and Clause 6.2(n)(ii) (Labour Matters)
|
Clause 6.2(o) (Intellectual Property)
|
Clause 6.2(p)(i) to Clause 6.2(p)(viii) (inclusive) (Real Property)
|
Clause 6.2(q) (Opinion of Financial Advisor)
|
Clause 6.2(r) (Required Vote of Chiquita Shareholders)
|
Clause 6.2(s)(i) to Clause 6.2(s)(ii) (Material Contracts)
|
Clause 6.2(t) (Insurance)
|
Clause 6.2(v)(i) and Clause 6.2(v)(ii) (Anti-Corruption)
|
Clause 6.2(w) (No Other Representations)
|
EXPENSES REIMBURSEMENT AGREEMENT
|
1.
|
Chiquita and Fyffes have agreed to combine on the terms set out in the Rule 2.5 Announcement and the Transaction Agreement and Fyffes and Chiquita have agreed to reimburse certain documented, specific and quantifiable third party costs and expenses incurred and to be incurred by the other Party, for the purposes of, in preparation for, or in connection with the Combination if the Transaction Agreement is terminated in certain circumstances.
|
2.
|
This Agreement (this “Agreement”) sets out the agreement between the Parties as to, among other things, the reimbursement in certain circumstances by (i) Fyffes of certain expenses incurred and to be incurred by Chiquita for the purposes of, in preparation for, or in connection with the Combination and (ii) Chiquita of certain expenses incurred and to be incurred by Fyffes for the purposes of, in preparation for, or in connection with the Combination.
|
1.
|
Definitions
|
|
1.1
|
In this Agreement (including in the Recitals), the following expressions shall have the following meaning:
|
|
1.2
|
Construction
|
|
(a)
|
In this Agreement, words such as “hereunder”, “hereto”, “hereof” and “herein” and other words commencing with “here” shall, unless the context clearly indicates to the contrary, refer to the whole of this Agreement and not to any particular section or clause thereof.
|
|
(b)
|
In this Agreement, save as otherwise provided herein, any reference herein to a section, clause, schedule or paragraph shall be a reference to a section, sub-section, clause, sub-clause, paragraph or sub-paragraph (as the case may be) of this Agreement.
|
|
(c)
|
In this Agreement, any reference to any provision of any legislation shall include any amendment, modification, re-enactment or extension thereof and shall also include any subordinate legislation made from time to time under such provision, and any reference to any provision of any legislation, unless the context clearly indicates to the contrary, shall be a reference to legislation of Ireland.
|
|
(d)
|
In this Agreement, the masculine gender shall include the feminine and neuter and the singular number shall include the plural and vice versa.
|
|
(e)
|
In this Agreement, any reference to an Irish legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court,
|
|
(f)
|
In this Agreement, any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
|
|
(g)
|
In this Agreement, any agreement or instrument defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement or instrument as from time to time amended, modified or supplemented, including by waiver or consent, and all attachments thereto and instruments incorporated therein.
|
|
(h)
|
Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to them in the Transaction Agreement.
|
|
1.3
|
Captions
|
|
1.4
|
Time
|
2.
|
Pre-condition
|
3.
|
Chiquita Reimbursement
|
|
3.1
|
Subject to Chiquita announcing a firm intention to make the Combination and subject to the provisions of this Agreement, Fyffes agrees to reimburse Chiquita, if any Chiquita Payment Event occurs, an amount equal to all documented, specific and quantifiable third party costs and expenses incurred by Chiquita, or on its behalf, for the purposes of, in preparation for, or in connection with the Combination, including, but not limited to, exploratory work carried out in contemplation of and in connection with the Combination, legal, financial and commercial due diligence and engaging advisers to assist in the process (the payments provided for in this Clause 3.1, the “Chiquita Reimbursement Payments”); provided that the gross amount payable to Chiquita pursuant to this Agreement shall not, in any event, exceed such sum as is equal to 1% of the total value attributable to the issued share capital of Fyffes that is the subject of the Combination (excluding, for the avoidance of doubt, any treasury shares and any
|
|
3.2
|
The “Chiquita Payment Events” are where the Parties have issued the Rule 2.5 Announcement and:
|
|
(a)
|
the Transaction Agreement is terminated:
|
|
(i)
|
by Chiquita for the reason that the Fyffes Board or any committee thereof (A) withdraws (or modifies in any manner adverse to Chiquita), or proposes publicly to withdraw (or modify in any manner adverse to Chiquita), the Scheme Recommendation or, if applicable, the recommendation to the holders of the Fyffes Shares from the Fyffes Board to accept the Takeover Offer (unless, in either case, the reason for such withdrawal or modification was in response to an Intervening Event that constitutes a Chiquita Material Adverse Effect) or (B) approves, recommends, adopts or otherwise declares advisable, or proposes publicly to approve, recommend, adopt or otherwise declare advisable, any Fyffes Alternative Proposal (it being understood, for the avoidance of doubt, that (x) no “stop, look and listen” communication in and of itself shall, in and of itself, satisfy this Clause 3.2(a)(i)) and (y) the provision by Fyffes to Chiquita of notice or information in connection with a Fyffes Alternative Proposal or Fyffes Superior Proposal as required or expressly permitted by the Transaction Agreement shall not, in and of itself, satisfy this Clause 3.2(a)(i)); or
|
|
(ii)
|
by Fyffes, at any time prior to obtaining the Fyffes Shareholder Approval, in order to enter into any agreement, understanding or arrangement providing for a Fyffes Superior Proposal; or
|
|
(b)
|
all of the following occur:
|
|
(i)
|
prior to the Court Meeting, a Fyffes Alternative Proposal is publicly disclosed or any person shall have publicly announced an intention (whether or not conditional) to make a Fyffes Alternative Proposal and, in each case, not publicly withdrawn at the time the Transaction Agreement is terminated under the circumstances specified in Clause 3.2(b)(ii) (it being understood that, for purposes of this Clause 3.2(b)(i) and Clause 3.2(b)(iii) below, references to “25%” and “75%” in the definition of Fyffes Alternative Proposal shall be deemed to refer to “50%”); and
|
|
(ii)
|
the Transaction Agreement is terminated by either Fyffes or Chiquita for the reason that the Court Meeting or the EGM shall have been completed and the Court Meeting Resolution or the EGM Resolutions, as applicable, shall not have been approved by the requisite majorities; and
|
|
(iii)
|
a definitive agreement providing for a Fyffes Alternative Proposal is entered into within 9 months after such termination (regardless of whether such Fyffes Alternative Proposal is the same Fyffes Alternative Proposal referred to in Clause 3.2(b)(i)) and such Fyffes Alternative Proposal is consummated.
|
|
3.3
|
Each request by Chiquita for a Chiquita Reimbursement Payment shall be:
|
|
(a)
|
submitted in writing to Fyffes no later than 45 calendar days following the occurrence of any of the Chiquita Payment Events;
|
|
(b)
|
accompanied by written invoices or written documentation supporting the request for a Chiquita Reimbursement Payment; and
|
|
(c)
|
subject to satisfactory compliance with Clause 3.3(b) and the other provisions of this Agreement upon which a Chiquita Reimbursement Payment may be conditioned, satisfied in full by payment in full by Fyffes to Chiquita in cleared, immediately available funds within 21 calendar days following such receipt of such invoices or documentation.
|
|
3.4
|
If and to the extent that any relevant Tax Authority determines that any Chiquita Reimbursement Payment is consideration for a taxable supply and that Fyffes (or any member of a VAT Group of which Fyffes is a member) is liable to account to a Tax Authority for VAT in respect of such supply and that all or any part of such VAT is Irrecoverable VAT, then:
|
|
(a)
|
the amount payable by Fyffes by way of any Chiquita Reimbursement Payment, together with any Irrecoverable VAT arising in respect of the supply for which the payment is consideration, shall not exceed the Chiquita Cap; and
|
|
(b)
|
to the extent that Fyffes has already paid an amount in respect of any Chiquita Reimbursement Payment which exceeds the amount described in Clause 3.4(a) above, Chiquita shall repay to Fyffes the portion of the Irrecoverable VAT in excess of the Chiquita Cap.
|
4.
|
Fyffes Reimbursement
|
|
4.1
|
Subject to Fyffes announcing a firm intention to effect the Scheme as part of the Combination and subject to the provisions of this Agreement, Chiquita agrees to reimburse Fyffes, if any Fyffes Payment Event occurs, an amount equal to all documented, specific and quantifiable third party costs and expenses incurred by Fyffes, or on its behalf, for the purposes of, in preparation for, or in connection with the Combination, including, but not limited to, exploratory work carried out in contemplation of and in connection with the Combination, legal, financial and commercial due diligence and engaging advisers to assist in the process (the payments provided for in this Clause 4.1, the “Fyffes Reimbursement Payments”); provided that the gross amount payable to Fyffes pursuant to this Agreement shall not, in any event, exceed such sum as is equal to 1% of the total value attributable to the issued share capital of Chiquita that is subject to the Merger (excluding, for the avoidance of doubt, any treasury shares and any Chiquita Shares held by Fyffes or any Associate of Fyffes) as set out in the Rule 2.5 Announcement calculated based on the closing price of a Chiquita Share on the Business Day prior to the date of the occurrence of the Fyffes Payment Event (the “Fyffes Cap”). The amount payable by Chiquita to Fyffes under this Clause 4.1 will exclude (a) any amounts in respect of VAT incurred by Fyffes attributable to such third party costs to the extent that such amounts in respect of VAT are recoverable or creditable by Fyffes (or any member of the VAT Group of which Fyffes is a member) and (b) any amounts paid or payable by a Party in connection with the Financing, including amounts payable pursuant to Clause 7.8(b) of the Transaction Agreement. Upon Fyffes becoming entitled to a Fyffes Reimbursement Payment, Chiquita shall have no further liability in connection with the termination of the Transaction Agreement (for the avoidance of doubt, other than the obligation to pay a Fyffes Reimbursement Payment pursuant to this Agreement), whether under the Transaction Agreement or this Agreement or otherwise, to Fyffes or its shareholders; provided that nothing herein shall release any Party from liability for intentional breach, for fraud or as provided for in the Confidentiality Agreement.
|
|
4.2
|
The “Fyffes Payment Events” are where the Parties have issued the Rule 2.5 Announcement and:
|
|
(a)
|
the Transaction Agreement is terminated:
|
|
(i)
|
by Fyffes for the reason that the Chiquita Board or any committee thereof (A) withdraws (or modifies in any manner adverse to Fyffes), or proposes publicly to withdraw (or modify in any manner adverse to Fyffes), the Chiquita Recommendation (unless
|
|
(ii)
|
by Chiquita, at any time prior to obtaining the Chiquita Shareholder Approval, in order to enter into any agreement, understanding or arrangement providing for a Chiquita Superior Proposal; or
|
|
(b)
|
all of the following occur:
|
|
(i)
|
prior to the Chiquita Shareholders Meeting, a Chiquita Alternative Proposal is publicly disclosed or any person shall have publicly announced an intention (whether or not conditional) to make a Chiquita Alternative Proposal and, in each case, not publicly withdrawn at the time the Transaction Agreement is terminated under the circumstances specified in Clause 4.2(b)(ii) (it being understood that, for purposes of this Clause 4.2(b)(i) and Clause 4.2(b)(iii) below, references to “25%” and “75%” in the definition of Chiquita Alternative Proposal shall be deemed to refer to “50%”); and
|
|
(ii)
|
the Transaction Agreement is terminated by either Chiquita or Fyffes for the reason that the Chiquita Shareholders Meeting shall have been completed and the Chiquita Shareholder Approval shall not have been obtained; and
|
|
(iii)
|
a definitive agreement providing for a Chiquita Alternative Proposal is entered into within 9 months after such termination (regardless of whether such Chiquita Alternative Proposal is the same Chiquita Alternative Proposal referred to in Clause 4.2(b)(i)) and such Chiquita Alternative Proposal is consummated.
|
|
4.3
|
Each request by Fyffes for a Fyffes Reimbursement Payment shall be:
|
|
(a)
|
submitted in writing to Chiquita no later than 45 calendar days following the occurrence of any of the Fyffes Payment Events;
|
|
(b)
|
accompanied by written invoices or written documentation supporting the request for a Fyffes Reimbursement Payment; and
|
|
(c)
|
subject to satisfactory compliance with Clause 4.3(b) and the other provisions of this Agreement upon which a Chiquita Reimbursement Payment may be conditioned, satisfied in full by payment in full by Chiquita to Fyffes in cleared, immediately available funds within 21 calendar days following such receipt of such invoices or documentation.
|
|
4.4
|
If and to the extent that any relevant Tax Authority determines that any Fyffes Reimbursement Payment is consideration for a taxable supply and that Chiquita (or any member of a VAT Group of which Chiquita is a member) is liable to account to a Tax Authority for VAT in respect of such supply and that all or any part of such VAT is Irrecoverable VAT, then:
|
|
(a)
|
the amount payable by Chiquita by way of any Fyffes Reimbursement Payment, together with any Irrecoverable VAT arising in respect of the supply for which the payment is consideration, shall not exceed the Fyffes Cap; and
|
|
(b)
|
to the extent that Chiquita has already paid an amount in respect of any Fyffes Reimbursement Payment which exceeds the amount described in Clause 4.4(a) above, Fyffes shall repay to Chiquita the portion of the Irrecoverable VAT in excess of the Fyffes Cap.
|
5.
|
General
|
|
5.1
|
This Agreement shall be governed by, and construed in accordance with, the laws of Ireland. Each of the Parties irrevocably agrees that the courts of Ireland are to have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement and, for such purposes, irrevocably submits to the exclusive jurisdiction of such courts. Any proceeding, suit or action arising out of or in connection with this Agreement shall therefore be brought in the courts of Ireland.
|
|
5.2
|
Chiquita hereby irrevocably appoints McCann FitzGerald Solicitors as its authorised agent upon whom process may be served in any suit or proceeding arising out of or in connection with this Agreement, and agrees that service of process upon such agent to the following address:
|
|
5.3
|
This Agreement may be executed in any number of counterparts, all of which, taken together, shall constitute one and the same agreement, and each Party may enter into this Agreement by executing a counterpart and delivering it to the other Party (by hand delivery, facsimile process, e-mail or otherwise).
|
|
5.4
|
Any notice or other document to be served under this Agreement may be delivered by overnight delivery service (with proof of service) or hand delivery, or sent by facsimile process, to the Party to be served as follows:
|
|
(i)
|
if to Chiquita, to:
|
|
(ii)
|
if to Fyffes, to:
|
|
(b)
|
Any notice or document shall be deemed to have been served:
|
|
(i)
|
if delivered by overnight delivery or by hand, at the time of delivery; or
|
|
(ii)
|
if sent by fax, at the time of termination of the fax transmission (provided that any notice received by facsimile transmission at the addressee’s location on any day that is not a Business Day, or on any Business Day after 5:00 p.m. (addressee’s local time), shall be deemed to have been received at 9:00 a.m. (addressee’s local time) on the next Business Day).
|
|
5.5
|
The invalidity, illegality or unenforceability of a provision of this Agreement does not affect or impair the continuance in force of the remainder of this Agreement.
|
|
5.6
|
No release, discharge, amendment, modification or variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each Party.
|
|
5.7
|
Each Party hereto represents and warrants to the other that, assuming due authorisation, execution and delivery by the other Party hereto, this Agreement constitutes the valid and binding obligations of that Party.
|
|
5.8
|
Each Party hereto confirms and agrees that no provision of the Transaction Agreement shall supersede, vary or otherwise amend the provisions of this
|
To:
|
Chiquita Brands International, Inc.
|
550 South Caldwell Street
|
|
Charlotte, North Carolina 28202
|
|
U.S.A.
|
|
Twombly One Limited
|
|
Riverside One
|
|
Sir John Rogerson’s Quay
|
|
Dublin 2
|
|
Ireland
|
|
(“ChiquitaFyffes”)
|
9 March 2014
|
1.
|
We each hereby severally represent, warrant and undertake to Chiquita and ChiquitaFyffes (save in respect of paragraphs (c), (d) and (e) which shall be given as undertakings only) that:
|
||
(a)
|
we are the registered holder and beneficial owners of and are able to control the exercise of all rights attaching to, including the ability to vote or to procure the transfer of, those Ordinary Shares in the capital of the Company that are set out under our name (the “Shares”) (which expression shall include any other shares in the Company issued after the date hereof and attributable to or derived from such Shares and shall include Shares deriving from the rights set out in column 4 of the Schedule) as set out in the Schedule to this undertaking;
|
||
(b)
|
we have the requisite corporate power and authority to enter into, execute and deliver this undertaking and to perform our obligations hereunder;
|
(c)
|
subject to Clause 3 below, we shall, or where applicable, shall procure that the registered holder of the Shares shall:
|
||
(i)
|
in person or by proxy, cast all votes (whether on a show of hands or on a poll) in relation to the Shares at the Court Meeting and the EGM in favour of the resolutions to sanction the Scheme together with any other resolutions which may be set out in the Scheme Document (the “Resolutions”) and against any resolution or proposal to adjourn the Court Meeting or the EGM (unless otherwise directed by Chiquita); and
|
||
(ii)
|
after the posting of the Scheme Document (and without prejudice to the right to attend and vote in person at the Court Meeting and the EGM), submit electronically or sign and return the forms of proxy to be enclosed with the Scheme Document in relation to the Shares (duly completed in favour of the Resolutions) in accordance with the instructions printed on those forms of proxy, as soon as possible and in any event no later than 10 days before the date of the Court Meeting and the EGM;
|
||
(d)
|
subject to Clause 3 below, we shall not prior to the Transaction becoming effective and we shall procure that the registered holder of the Shares shall not:
|
||
(i)
|
sell, transfer, charge, pledge, or grant any option or encumbrance over or otherwise dispose of, or permit the sale, transfer, charge, pledge or grant of any option or encumbrance over the disposal of, any of the Shares or any interest in any of the Shares except in connection with the Transaction (except, in the case of a transfer of the Shares or an interest in the Shares, unless and until the transferee of such Shares or interest in the Shares has duly completed and executed an undertaking in favour of Chiquita and ChiquitaFyffes in respect of such Shares or interest in the Shares on terms identical mutatis mutandis to the terms of this undertaking); or
|
||
(ii)
|
accept or permit to be accepted, or vote in favour of any resolution relating to, any acquisition or other transaction which is proposed by any person other than Chiquita or ChiquitaFyffes or which would otherwise hinder or impede the implementation of the Scheme (a “Competing Proposal”) in respect of any of the Shares (whether it is conditional or unconditional and irrespective of the means by which it is to be implemented); and
|
||
(e)
|
subject to Clause 3 below, we shall (and we shall procure that the registered holder of the Shares shall) refrain from voting in favour of any resolution relating to any Competing Proposal at any meeting of the shareholders of the Company.
|
||
2.
|
We acknowledge that Chiquita and/or ChiquitaFyffes shall have (in accordance with the terms of the Transaction Agreement (as defined in the Announcement)) the right and may elect at any time (with the consent of the Panel and whether or not the Scheme Document has then been despatched) to implement the Transaction by way of a takeover offer (the “Offer”), as opposed to by way of a Scheme, provided that:
|
||
(a)
|
Chiquita has made that election in accordance with the terms of the Transaction Agreement; and
|
||
(b)
|
such takeover offer is made on terms at least as favourable as the terms of the Scheme.
|
If such an Offer is made by Chiquita and/or ChiquitaFyffes, and provided such Offer is recommended by the directors of the Company, we undertake and warrant that any undertakings, agreements, warranties, appointments, consents and waivers in this undertaking shall apply mutatis mutandis to such Offer and, in particular, we undertake to accept, or procure the acceptance of, such Offer in respect of the Shares within 14 days after the posting of the formal document containing the offer (the “Offer Document”) and so that, notwithstanding that the terms of the Offer Document will confer rights of withdrawal on accepting shareholders, we shall not withdraw (or procure the withdrawal of) any acceptance of the Offer in respect of the Shares or any of them.
|
|||
In this context, references in this Deed to:
|
|||
(a)
|
the Scheme becoming effective shall be read as references to the Offer becoming or being declared unconditional in all respects;
|
||
(b)
|
the Scheme lapsing or being withdrawn shall be read as references to the closing or lapsing of the Offer; and
|
||
(c)
|
to the Scheme Document shall be read as references to the Offer Document.
|
||
3.
|
The following additional provisions apply to this undertaking:
|
||
(a)
|
Subject to paragraph 3(b) below, the undertakings given by us in this undertaking are irrevocable.
|
||
(b)
|
All obligations under this undertaking will lapse if:
|
||
(i)
|
the Transaction is not announced on or before 10 March 2014 (or such later date as the Company and Chiquita may agree in writing);
|
||
(ii)
|
the Scheme lapses or is withdrawn or Chiquita and/or ChiquitaFyffes makes an announcement to that effect (other than, in either case, if the Scheme lapses or is to lapse by application of the Rules on a Phase II Referral prior to the date of the Court Meeting);
|
||
(iii)
|
there is a Fyffes Change of Recommendation; or
|
||
(iv)
|
the Transaction Agreement is terminated in accordance with its terms.
|
||
(c)
|
We acknowledge that nothing in this undertaking obliges Chiquita or ChiquitaFyffes to proceed with the Transaction if it is not required to do so under the Rules.
|
||
(d)
|
We irrevocably consent to the issue of the Announcement and the Scheme Document, and any shareholder circular issued by Chiquita, ChiquitaFyffes and/or the Company in connection with the Transaction, incorporating references to the provisions of this undertaking as they apply to us. We understand that, this undertaking will be made available for inspection (as required by the Rules) and that particulars of it will be contained in the Announcement and the Scheme Document. We shall promptly give you all information and any assistance as you may reasonably require for the preparation of the Scheme Document and any other announcement to be made, or document to be issued, by or on behalf of Chiquita, ChiquitaFyffes or the Company in connection with the Transaction in order to comply with the requirements of the Rules, the Panel, the Irish High Court or any other legal or regulatory requirement or body.
|
(e)
|
Time will be of the essence in this undertaking, both as regards the dates and periods mentioned and as regards any dates and periods which may be substituted for them.
|
||
(f)
|
In this undertaking:
|
||
(i)
|
the expression “Transaction” extends to any extension, variation or revision to the terms of the Transaction on terms at least as favourable as the terms of the Transaction described in the Announcement; and
|
||
(ii)
|
the expression “Phase II Referral” means an initiation by the European Commission of proceedings in respect of the Transaction under Article 6(1)(c) of the EC Merger Regulation or a referral by the European Commission of the Transaction to a competent authority of an EU Member State under Article 9(c) of the EC Merger Regulation.
|
||
(g)
|
We agree that damages would or may not be an adequate remedy for breach of this undertaking and that Chiquita and/or ChiquitaFyffes shall have the right to remedies of injunction, specific performance and other equitable relief for any threatened or actual breach of any such provision by us.
|
||
(h)
|
This undertaking and all non-contractual matters arising out of or in connection with it shall be governed by Irish law and we submit to the jurisdiction of the Irish courts for all purposes in relation to this undertaking.
|
||
(i)
|
Except where the context requires otherwise, the definitions used in this undertaking shall have the meanings given to them in the Transaction Agreement.
|
PRESENT when the Common Seal of
|
|||
ARMATEUR LIMITED
|
|||
was affixed hereto
|
|||
and this DEED has been DELIVERED:
|
|||
/s/ Patrick McCann | |||
Director
|
|||
Seal
|
/s/ Christopher McCann | ||
Director/Secretary
|
PRESENT when the Common Seal of
|
|||
CHEKGATE LIMITED
|
|||
was affixed hereto
|
|||
and this DEED has been DELIVERED:
|
|||
/s/ Christopher McCann | |||
Director
|
|||
Seal
|
/s/ Patrick McCann | ||
Director/Secretary
|
PRESENT when the Common Seal of
|
|||
FIRSTMORE LIMITED
|
|||
was affixed hereto
|
|||
and this DEED has been DELIVERED:
|
|||
/s/ Carl McCann | |||
Director
|
|||
Seal
|
/s/ Patrick McCann | ||
Director/Secretary
|
PRESENT when the Common Seal of
|
|||
JAWLEY LIMITED
|
|||
was affixed hereto
|
|||
and this DEED has been DELIVERED:
|
|||
/s/ Patrick McCann | |||
Director
|
|||
Seal
|
/s/ Christopher McCann | ||
Director/Secretary
|
PRESENT when the Common Seal of
|
|||
STAINCROSS LIMITED
|
|||
was affixed hereto
|
|||
and this DEED has been DELIVERED:
|
|||
/s/ Patrick McCann | |||
Director
|
|||
Seal
|
/s/ Catherine Ghose | ||
Director/Secretary
|
PRESENT when the Common Seal of
|
|||
ARNSBERG INVESTMENT COMPANY
|
|||
was affixed hereto
|
|||
and this DEED has been DELIVERED:
|
|||
/s/ Carl McCann | |||
Director
|
|||
Seal
|
/s/ Patrick McCann | ||
Director/Secretary
|
PRESENT when the Common Seal of
|
|||
BALKAN INVESTMENT COMPANY
|
|||
was affixed hereto
|
|||
and this DEED has been DELIVERED:
|
|||
/s/ Mary McCann | |||
Director
|
|||
Seal
|
/s/ Carl McCann | ||
Director/Secretary
|
Number of Shares
|
Registered owner
|
Beneficial owner
|
Number of Shares subject to options, warrants or other rights to subscribe, acquire or convert
|
2,025,505
|
Armateur Limited
|
Armateur Limited
|
Nil
|
Number of Shares
|
Registered owner
|
Beneficial owner
|
Number of Shares subject to options, warrants or other rights to subscribe, acquire or convert
|
500,000
|
Chekgate Limited
|
Chekgate Limited
|
Nil
|
Number of Shares
|
Registered owner
|
Beneficial owner
|
Number of Shares subject to options, warrants or other rights to subscribe, acquire or convert
|
759,564
|
Firstmore Limited
|
Firstmore Limited
|
Nil
|
Number of Shares
|
Registered owner
|
Beneficial owner
|
Number of Shares subject to options, warrants or other rights to subscribe, acquire or convert
|
2,025,505
|
Jawley Limited
|
Jawley Limited
|
Nil
|
Number of Shares
|
Registered owner
|
Beneficial owner
|
Number of Shares subject to options, warrants or other rights to subscribe, acquire or convert
|
6,125,457
|
Staincross Limited
|
Staincross Limited
|
Nil
|
Number of Shares
|
Registered owner
|
Beneficial owner
|
Number of Shares subject to options, warrants or other rights to subscribe, acquire or convert
|
21,944,501
|
Arnsberg Investment Company
|
Arnsberg Investment Company
|
Nil
|
Number of Shares
|
Registered owner
|
Beneficial owner
|
Number of Shares subject to options, warrants or other rights to subscribe, acquire or convert
|
3,857,802
|
Balkan Investment Company
|
Balkan Investment Company
|
Nil
|
PARENT:
|
CHIQUITA BRANDS INTERNATIONAL, INC., a New Jersey corporation
By: /s/ Joseph B. Johnson
Name: Joseph B. Johnson
Title: Vice President, Chief Accounting Officer and Treasurer
|
BORROWERS:
|
CHIQUITA BRANDS L.L.C., a Delaware limited liability company
By:/s/ Joseph B. Johnson
Name: Joseph B. Johnson
Title: Vice President, Chief Accounting Officer and Treasurer
|
CHIQUITA FRESH NORTH AMERICA L.L.C., a Delaware limited liability company
By:/s/ Joseph B. Johnson
Name: Joseph. B. Johnson
Title: Vice President, Chief Accounting Officer and Treasurer of Chiquita Brands International, Inc. and Chiquita Brands L.L.C. (a Parent Authorized Officer)
|
FRESH INTERNATIONAL CORP., a Delaware corporation
By:/s/ Joseph B. Johnson
Name: Joseph B. Johnson
Title: Vice President, Chief Accounting Officer and Treasurer of Chiquita Brands International, Inc. and Chiquita Brands L.L.C. (a Parent Authorized Officer)
|
FRESH EXPRESS INCORPORATED, a Delaware corporation
By:/s/ Joseph B. Johnson
Name: Joseph B. Johnson
Title: Vice President, Chief Accounting Officer and Treasurer of Chiquita Brands International, Inc. and Chiquita Brands L.L.C. (a Parent Authorized Officer)
|
B C SYSTEMS, INC., a Delaware corporation
By:/s/ Joseph B. Johnson
Name: Joseph B. Johnson
Title: Vice President, Chief Accounting Officer and Treasurer of Chiquita Brands International, Inc. and Chiquita Brands L.L.C. (a Parent Authorized Officer)
|
VERDELLI FARMS INC., a Pennsylvania corporation
By:/s/ Joseph B. Johnson
Name: Joseph B. Johnson
Title: Vice President, Chief Accounting Officer and Treasurer of Chiquita Brands International, Inc. and Chiquita Brands L.L.C. (a Parent Authorized Officer)
|
CB CONTAINERS, INC., a Delaware corporation
By:/s/ Joseph B. Johnson
Name: Joseph B. Johnson
Title: Vice President, Chief Accounting Officer and Treasurer of Chiquita Brands International, Inc. and Chiquita Brands L.L.C. (a Parent Authorized Officer)
|
V.F. TRANSPORTATION, LLC, a Pennsylvania limited liability company
By: VERDELLI FARMS INC., a Pennsylvania corporation, its sole Manager
By:/s/ Joseph B. Johnson
Name: Joseph B. Johnson
Title: Vice President, Chief Accounting Officer and Treasurer of Chiquita Brands International, Inc. and Chiquita Brands L.L.C. (a Parent Authorized Officer)
|
TRANSFRESH CORPORATION, a Delaware corporation
By:/s/ Joseph B. Johnson
Name: Joseph B. Johnson
Title: Vice President, Chief Accounting Officer and Treasurer of Chiquita Brands International, Inc. and Chiquita Brands L.L.C. (a Parent Authorized Officer)
|
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Agent and as a Lender
By: /s/ Laura Nickas
Name: Laura Nickas
Title:Vice President
|
GOLDMAN SACHS BANK USA, as a Lender
By: /s/ Michelle Latzoni
Name: Michelle Latzoni
Its Authorized Signatory
|