SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Filed Pursuant to Section 13 or 15(d) of the Securities Act of 1934
Date of Report (Date of earliest event reported) MARCH 15, 1999
TRISTAR CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 0-13099 13-3129318
(State or other jurisdiction of (Commission (I.R.S. Employer
incorporation or organization) File Number) Identification No.)
12500 San Pedro Avenue, Suite 500, San Antonio, Texas 78216
(Address of principle executive offices) (Zip Code)
Registrant's telephone number, including area code (210) 402-2200
Not Applicable
(Former name or former address, if changed since last report)
<PAGE>
Item 1. CHANGES IN CONTROL OF REGISTRANT
Not applicable
Item 2. ACQUISITION OR DISPOSITION OF ASSETS
a(i) On March 15, 1999, pursuant to a stock purchase
agreement entered into by and among the Registrant,
Transvit Holding Corporation ("THC"), a wholly-owned
affiliate of the Core Sheth Family ("Sheth Group"), the
majority stockholder of the Registrant, and Nevell
Investments, S.A ("Nevell"), another affiliate of the
Sheth Group, the Registrant sold to THC for $2,686,000
all of the issued and outstanding capital stock ("Trimex
Stock") and certain distribution rights of its wholly
owned subsidiary, Tristar de Mexico, S.A. de C.V.
("Trimex"), a distributor of fragrance and cosmetic
products into the formal retail market in the United
Mexican States. The transaction was effective as of
November 29, 1998. Jay Sheth, a director of the
Registrant, although not a member of the Sheth Group, is
the son of a member of the Sheth Group. Viren S. Sheth,
a director of the Registrant, although not a member of
the Sheth Group, is the brother of three members of the
Sheth Group. Both Jay Sheth and Viren S. Sheth disclaim
beneficial ownership of any shares of capital stock of
the Registrant, THC or Nevell. B.J Harid, a director of
the Registrant, also serves as a director of another
Sheth Group affiliate but is not a director of THC or
Nevell. B.J. Harid disclaims beneficial ownership of any
shares of capital stock of the Registrant, THC or
Nevell.
(ii) The transaction provides for a non-compete restriction
and a supply agreement whereby the Registrant agreed to
continue selling certain products to Trimex. The
Registrant also received an option to repurchase at a
fair value the Trimex Stock and distribution rights from
THC at anytime prior to March 15, 2004. The Registrant
currently has no plans to exercise such option but may
do so in the future.
(iii) The $2,686,000 consideration which the Registrant
received was negotiated by the parties and related to
the amount of cash invested by the Registrant in
developing Trimex's distribution channel coupled with
the anticipated future revenue stream of Trimex. The
Registrant engaged a third party to review the
transaction and render an opinion on its fairness.
(iv) The Registrant received payment in the form of a
reduction of debt due Nevell, and redemption of shares
of the Registrant's Series A Convertible Preferred
Stock, $.O5 par value ("Series A Preferred"), issued to
Nevell at a redemption price of $7.62 per share. Of the
total
<PAGE>
purchase price of $2,686,000, an amount equal to
$1,700,000 was applied to a reduction of debt due Nevell
with the remaining $986,000 attributed to redeemed
shares of the Series A Preferred at a total redemption
price of $905,709 plus $80,291 of dividends in arrears.
Warrant valuation costs of $99,000 associated with the
subordinated debt reduction were written-off in
connection with the sale. The excess proceeds over the
carrying value of the Registrant's investment in Trimex
was recorded as an increase in additional
paid-in-capital.
Item 3.BANKRUPTCY OR RECEIVERSHIP
Not Applicable
Item 4.CHANGES IN REGISTRANT'S CERTIFYING ACCOUNTANT
Not Applicable
Item 5. OTHER EVENTS
Not Applicable
Item 6.RESIGNATION OF REGISTRANT'S DIRECTORS
Not Applicable
Item 7.FINANCIAL STATEMENTS AND EXHIBITS
a Financial Statements of Businesses Acquired
Not applicable
b. Pro Forma Financial Information:
Pro forma Consolidated Balance Sheet as of November 28, 1998 and
Statements of Operations for the thirteen week period ended
November 28, 1998 and the fiscal year ended August 29, 1998 are
attached hereto.
c. Exhibit Index:
Exhibit 2.1 Stock Purchase Agreement dated effective as of
November 29, 1998, by and among Tristar Corporation and Transvit
Holding Corporation
Item 8.CHANGE IN FISCAL YEAR
Not Applicable
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the under
signed thereunto duly authorized.
TRISTAR CORPORATION
By /s/ ROBERT M. VIOLA
Robert M. Viola, Executive
Vice President, Chief
Financial Officer,
Assistant Secretary and
Principal Financial and
Accounting Officer
Date: March 25, 1999
<PAGE>
TRISTAR CORPORATION AND SUBSIDIARIES
PRO FORMA CONSOLIDATED BALANCE SHEETS
The unaudited pro forma consolidated statements are provided to demonstrate the
effect of the sale of Tristar de Mexico, S.A. de C.V. ("Trimex") to Transvit
Holding Corporation ("THC") on the consolidated balance sheet at November 28,
1998 and results of operations of Tristar Corporation ("Tristar") as of and for
the thirteen week period ended November 28, 1998 and the year ended August 29,
1998. The unaudited pro forma balance sheet assumes the transaction occurred as
of November 28, 1998, the latest balance sheet date. The unaudited pro forma
statement of operations assumes the transfer occurred at the beginning of the
most recent periods presented (August 30, 1998 for the thirteen weeks ended
November 28, 1998 and August 31, 1997 for the year ended August 30, 1998). Due
to the common interest which exists between Tristar and THC, the Company
recorded the excess of the consideration received over the related carrying
value of its Mexican subsidiary as an increase in additional paid-in-capital.
Additionally, other necessary adjustments reflected in the pro forma balance
sheet are the elimination of Trimex's local assets and liabilities, the
reduction of subordinated debt due to Nevell, the redemption in Series A
Preferred Stock, the write-off of deferred warrant valuation costs associated
with the subordinated debt, the elimination of the foreign currency translation
adjustment and a charge to accumulated deficit for the preferred stock dividends
pertaining to the Series A Preferred shares redeemed.
Accordingly, adjustments necessary in the pro forma statement of operations are
the elimination of Trimex's operating income and reductions of warrant
amortization resulting from the decrease in subordinated debt and preferred
stock dividends relating to The Series A Preferred stock.
<TABLE>
<CAPTION>
NOVEMBER 28, PRO FORMA
1998 PRO FORMA NOVEMBER 28,
ASSETS (UNAUDITED) ADJUSTMENTS 1998
----------- ----------- -----------
<S> <C> <C> <C>
Current assets:
Cash ........................................... $ 41,000 $ (18,000) $ 23,000
Accounts receivable, less
allowance for doubtful accounts of
$966,000 and $814,000, respectively ........... 16,061,000 (2,079,000) 13,982,000
Accounts receivable - related parties - net .... 3,521,000 -- 3,521,000
Inventories - net .............................. 13,215,000 (137,000) 13,078,000
Prepaid expenses ............................... 257,000 (32,000) 225,000
Other current assets ........................... 117,000 -- 117,000
----------- ----------- -----------
Total current assets .......................... 33,212,000 (2,266,000) 30,946,000
----------- ----------- -----------
Property, plant and equipment, less accumulated
depreciation of $9,239,000 .................... 8,031,000 -- 8,031,000
----------- ----------- -----------
Other assets:
Warrant valuation, less accumulated amortization
of $1,809,000 and $1,908,000 respectively ..... 99,000 (99,000) --
Other assets ................................... 760,000 (8,000) 752,000
----------- ----------- -----------
Total other assets ............................. 859,000 (107,000) 752,000
----------- ----------- -----------
Total assets .................................... $42,102,000 $(2,373,000) $39,729,000
=========== =========== ===========
</TABLE>
<PAGE>
TRISTAR CORPORATION AND SUBSIDIARIES
PRO FORMA CONSOLIDATED BALANCE SHEETS (CONTINUED)
<TABLE>
<CAPTION>
NOVEMBER 28, PRO FORMA
1998 PRO FORMA NOVEMBER 28,
LIABILITIES AND SHAREHOLDERS' EQUITY (UNAUDITED) ADJUSTMENTS 1998
------------ ------------ ------------
<S> <C> <C> <C>
Current liabilities:
Book overdraft ..................................... $ 392,000 $ -- $ 392,000
Revolving credit agreement borrowings, current ..... 6,662,000 -- 6,662,000
Accounts payable-trade ............................. 8,855,000 (102,000) 8,753,000
Accounts payable-related parties - net ............. 5,118,000 -- 5,118,000
Accrued bonuses .................................... 82,000 -- 82,000
Accrued interest expense-subordinated debt ......... 1,731,000 -- 1,731,000
Other accrued expenses ............................. 1,698,000 (1,000) 1,697,000
Current portion of capital lease obligations ....... 140,000 -- 140,000
Current portion of long term obligations ........... 900,000 -- 900,000
------------ ------------ ------------
Total current liabilities ......................... 25,578,000 (103,000) 25,475,000
Long-term debt, less current portion ............... 2,878,000 -- 2,878,000
Obligations under capital leases, less current
portion ........................................... 102,000 -- 102,000
Subordinated long term debt - related parties ...... 1,700,000 (1,700,000) --
------------ ------------ ------------
Total liabilities ................................. 30,258,000 (1,803,000) 28,455,000
------------ ------------ ------------
Commitments and contingencies
Shareholders' equity (deficit):
Preferred stock, $.05 par value; authorized
1,000,000 shares; Series A, 666,529 and 537,142
shares, respectively, issued and outstanding ...... 4,666,000 (906,000) 3,760,000
Series B, 120,690 shares issued and outstanding ... 4,511,000 -- 4,511,000
Series C, 78,333 shares issued and outstanding .... 4,699,000 -- 4,699,000
Common stock, $.01 par value; authorized
30,000,000 shares; issued and outstanding
16,761,493 shares ................................. 168,000 -- 168,000
Additional paid-in-capital ......................... 12,790,000 64,000 12,854,000
Foreign currency translation ....................... (376,000) 376,000 --
Accumulated deficit ................................ (14,614,000) (104,000) (14,718,000)
------------ ------------ ------------
Total shareholders' equity ........................ 11,844,000 (570,000) 11,274,000
------------ ------------ ------------
Total liabilities and shareholders' equity ......... $ 42,102,000 $ (2,373,000) $ 39,729,000
============ ============ ============
</TABLE>
<PAGE>
TRISTAR CORPORATION AND SUBSIDIARIES
PRO FORMA CONSOLIDATED STATEMENT OF OPERATIONS
<TABLE>
<CAPTION>
THIRTEEN WEEK PERIOD ENDED
NOVEMBER 28, PRO FORMA PRO FORMA
1998 ADJUSTMENTS NOVEMBER 28,
(UNAUDITED) (SEE NOTE A) 1998
------------ ------------ ------------
<S> <C> <C> <C>
Net sales .................................. $ 15,075,000 $ (623,000) $ 14,452,000
Cost of sales .............................. 10,432,000 (261,000) 10,171,000
------------ ------------ ------------
Gross profit ............................... 4,643,000 (362,000) 4,281,000
Selling, general and administrative
expenses .................................. 4,065,000 (258,000) 3,807,000
------------ ------------ ------------
Income (loss) from operations .............. 578,000 (104,000) 474,000
Other income (expense):
Interest expense .......................... (331,000) -- (331,000)
Other income (expense) .................... (23,000) 2,000 (21,000)
------------ ------------ ------------
Income (loss) before provision for
income taxes .............................. 224,000 (102,000) 122,000
Provision for income taxes ................ -- -- --
------------ ------------ ------------
Net income (loss) .......................... 224,000 (102,000) 122,000
------------ ------------ ------------
Less:
Preferred stock dividends ................. (207,000) 10,000 (197,000)
Effect of beneficial conversion feature ... (641,000) -- (641,000)
Warrant valuation adjustment .............. -- -- --
------------ ------------ ------------
Net income (loss) applicable to common stock $ (624,000) $ (92,000) $ (716,000)
============ ============ ============
Earnings per common share:
Basic ..................................... $ (.04) -- $ (.04)
============ ============
Diluted ................................... $ (.04) -- $ (.04)
============ ============
Weighted average shares outstanding
Basic ..................................... 16,761,493 -- 16,761,493
Diluted ................................... 16,761,493 -- 16,761,493
</TABLE>
Note a. The column represents the historical results of operations for
the Mexican subsidiary for the thirteen week period ended November
28, 1998, adjustments for warrant amortization associated with the
reduction in debt as a result of the sale of the subsidiary and
preferred stock dividends relating to the reduction in Series A
Preferred Stock:
-Mexican subsidiary operating income ................... $ 106,000
-Warrant amortization expense .......................... (4,000)
-Dividends accumulated on redeemed Preferred Series A
shares ............................................... (10,000)
---------
$ 92,000
=========
<PAGE>
TRISTAR CORPORATION AND SUBSIDIARIES
PRO FORMA CONSOLIDATED STATEMENT OF OPERATIONS
<TABLE>
<CAPTION>
YEAR ENDED
PRO FORMA PRO FORMA
AUGUST 29, ADJUSTMENTS AUGUST 29,
1998* (SEE NOTE A.) 1998
------------ ------------ ------------
<S> <C> <C> <C>
Net sales ......................... $ 67,683,000 $ (1,865,000) $ 65,818,000
Cost of sales ..................... 50,432,000 (788,000) 49,644,000
------------ ------------ ------------
Gross profit ...................... 17,251,000 (1,077,000) 16,174,000
Selling general and administrative
expenses ......................... 16,424,000 (1,139,000) 15,285,000
------------ ------------ ------------
Income (loss) from operations ..... 827,000 62,000 889,000
Other income (expense):
Interest expense ................. (1,786,000) 58,000 (1,728,000)
Other expense .................... (470,000) 608,000 138,000
------------ ------------ ------------
Income (loss) before provision for
income taxes ..................... (1,429,000) 728,000 (701,000)
Provision for income taxes ........ 62,000 -- 62,000
------------ ------------ ------------
Net income (loss) ................. (1,491,000) 728,000 (763,000)
------------ ------------ ------------
Less:
Preferred stock dividends ........ (453,000) 41,000 (412,000)
Effect of beneficial conversion
feature ......................... -- -- --
Warrant valuation adjustment ..... -- -- --
------------ ------------ ------------
Net income (loss) applicable to
common stock ..................... $ (1,944,000) $ 769,000 $ (1,175,000)
============ ============ ============
Earnings per common share:
Basic ............................ $ (.12) -- $ (.07)
============ ============
Diluted .......................... $ (.12) -- $ (.07)
============ ============
Weighted average shares outstanding
Basic ............................ 16,748,798 -- 16,748,798
Diluted .......................... 16,748,798 -- 16,748,798
</TABLE>
Note a. The column represents the historical results of operations for
the Mexican subsidiary for the year ended August 29, 1998,
adjustments for warrant amortization and interest expense associated
with the reduction in debt as a result of the sale of the subsidiary
and preferred stock dividends relating to the redemption of Series A
Preferred Stock:
-Mexican subsudiary operating loss ................. $(655,000)
-Interest on subordinated debt ..................... (58,000)
-Warrant amortization expense ...................... (15,000)
-Dividends accumulated on redeemed
Preferred Series A shares ........................ (41,000)
---------
$(769,000)
=========
* Prepared from audited financial statements for the year ended August 29, 1998.
EXHIBIT 2.1
STOCK PURCHASE AGREEMENT
DATED AS OF NOVEMBER 29, 1998
BY AND AMONG
TRISTAR CORPORATION
AND
TRANSVIT HOLDING CORPORATION
COVERING THE PURCHASE
OF ALL OF THE CORPORATE CAPITAL OF
TRISTAR DE MEXICO, S.A. DE C.V.
<PAGE>
TABLE OF CONTENTS
1. General Definitions........................ 1
1.1 Affiliate............................ 1
1.2 Existing Tristar Products............ 2
1.3 Governmental Authority............... 2
1.4 Governmental Requirement............. 2
1.5 New Tristar Products................. 2
1.6 Person............................... 2
1.7 Redemption Price..................... 2
1.8 Section.............................. 2
1.9 Series A Preferred................... 2
1.10 Taxes................................ 2
1.11 Tristar Products..................... 2
2. Purchase and Sale of the Stock, Closing
Date....................................... 3
2.1 Purchase and Sale.................... 3
2.2 Delivery and Endorsement of
Certificates......................... 3
2.3 Closing Date......................... 3
3. Purchase Price and Payment
4. Representation and Warranties of Seller.... 3
4.1 Incorporation........................ 3
4.2 Share Capital........................ 3
4.3 Subsidiaries......................... 4
4.4 Effect of Agreement.................. 4
4.5 Authorization........................ 4
4.6 Brokers and Finders.................. 4
4.7.. Debt of Target....................... 4
5. Representations and Warranties of
Purchaser.................................. 4
5.1 Incorporation........................ 4
5.2 Authorization........................ 4
5.3 Brokers and Finders.................. 4
6. Continuing Obligations of Seller........... 5
6.1 Target's Option to Purchase New
Tristar Products/Existing Tristar
Products, etc........................ 5
6.2 Price of Option Products............. 5
7. Conditions to Obligations or Purchasers.... 5
7.1 Accuracy of Representations and
Warranties and Fulfillment of
Covenants............................ 5
7.2 No Governmental Actions.............. 6
7.3 Transfer and Assignment Documents.... 6
8. Conditions Precedent to Obligations of
Seller..................................... 6
8.1 Accuracy of Representations and
Warranties and Fulfillment of
Covenants............................ 6
8.2 Delivery of Purchase Price........... 6
8.3 Approval of Counsel.................. 6
9. Expenses................................... 6
10. Further Actions............................ 6
- i -
<PAGE>
11. Arbitration................................ 7
12. Option to Repurchase, Exercise Price;
Repurchase Closing Date.................... 7
13. Notices.................................... 7
14. General Provisions......................... 8
14.1 Governing Law, Interpretations;
Section Headings..................... 8
14.2 Severability......................... 8
14.3 Entire Agreement..................... 9
14.4 Survivability, Binding Effect........ 9
14.5 Assignment........................... 9
14.6 Amendment, Waiver.................... 9
14.7 Counterparts......................... 9
14.8 Telecopy Execution and Delivery...... 9
- ii -
<PAGE>
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "AGREEMENT") is made and entered into
to be effective as of the 29th day of November, 1998, by and among TRISTAR
CORPORATION, a Delaware corporation ("SELLER") and TRANSVIT HOLDING
CORPORATION, a British Virgin Islands corporation ("PURCHASER").
WITNESSETH
WHEREAS, Seller holds all of the corporate capital of Tristar de Mexico,
S.A. de C.V., a business organized under the laws of the United Mexican States
("TARGET"), being 9,996 shares of stock, 1,000 new pesos par value per share
(the "STOCK"), and desires to sell the Stock to Purchaser pursuant to this
Agreement as hereinafter provided; and
WHEREAS, Purchaser desires to acquire the Stock from Seller in accordance
with the terms and provisions set forth in this Agreement; and
WHEREAS, Seller desires to sell to Purchaser the Stock in accordance with
the terms and provisions set forth herein; and
WHEREAS, Purchaser desires to grant to Seller an option to repurchase the
Stock in accordance with the terms and provisions set forth herein; and
WHEREAS, Seller desires to obtain from Purchaser an option to repurchase
the Stock in accordance with the terms and provisions set forth herein; and
WHEREAS, Purchaser desires to obtain for Target an option to purchase
certain products from Seller on the terms and provisions set forth herein; and
WHEREAS, Seller desires to grant to Target an option to purchase certain
products from Seller on the terms and provisions set forth herein; and
WHEREAS, the parties hereto desire to set forth certain representations,
warranties and covenants made by each to the other as an inducement to the
execution and delivery of this Agreement, and to set forth certain additional
agreements related to the transactions contemplated hereby.
NOW, THEREFORE, for and in consideration of the premises, the mutual
representations, warranties and covenants herein contained and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. GENERAL DEFINITIONS. For purposes of this Agreement, the following
terms shall have the respective meanings set forth below.
1.1 AFFILIATE. "AFFILIATE" of any Person shall mean any Person
controlling, controlled by or under common control with such Person.
1.2 EXISTING TRISTAR PRODUCTS. "EXISTING TRISTAR PRODUCTS" shall mean
Seller's products which (a) are sold by Seller in the retail market in the
United States of America and (b) were first sold by Seller in such market on or
before the Closing Date, and "EXISTING TRISTAR PRODUCT" shall mean any of
them.
1.3 GOVERNMENTAL AUTHORITY. "GOVERNMENTAL AUTHORITY" shall mean any and
all foreign, federal, state or local governments, governmental institutions,
public authorities and governmental entities of any nature whatsoever, and any
subdivisions or instrumentalities thereof, including, but not limited to,
departments, boards, bureaus, commissions, agencies, courts, administrations and
panels, and any divisions or instrumentalities thereof, whether permanent or ad
hoc and whether now or hereafter constituted or existing.
1.4 GOVERNMENTAL REQUIREMENT. "GOVERNMENTAL REQUIREMENT" shall mean any
and all laws (including, but not limited to, applicable common law principles),
statutes, ordinances, codes, rules, regulations, interpretations, guidelines,
directions, orders, judgments, writs, injunctions, decrees, decisions or similar
items or pronouncements, promulgated, issued, passed or set forth by any
Governmental Authority.
<PAGE>
1.5 NEW TRISTAR PRODUCTS. "NEW TRISTAR PRODUCTS" shall mean Seller's
products which (a) are sold by Seller in the retail market in the United States
of America and (b) are first sold by Seller in such market at any time after the
Closing Date, and "NEW TRISTAR PRODUCT" shall mean any of them.
1.6 PERSON. "PERSON" shall mean any natural person, any Governmental
Authority and any entity the separate existence of which is recognized by any
Governmental Authority or Governmental Requirement, including, but not limited
to, corporations, partnerships, joint ventures, joint stock companies, trusts,
estates, companies and associations, whether organized for profit or otherwise.
1.7 REDEMPTION PRICE. "REDEMPTION PRICE" shall mean $7.62 per share.
1.8 SECTION. "SECTION" shall mean the section of this Agreement
referred to by number.
1.9 SERIES A PREFERRED. "SERIES A PREFERRED" shall mean the Series A
Convertible Preferred Stock, $.05 par value, issued by Seller.
1.10 TAXES. "TAX" and "TAXES" shall mean any and all income, excise,
franchise or other taxes and all other charges or fees imposed or collected by
any Governmental Authority or pursuant to any Governmental Requirement, and
shall also include any and all penalties, interest, deficiencies, assessments
and other charges with respect thereto.
1.11 TRISTAR PRODUCTS "TRISTAR PRODUCTS" shall mean the Existing
Tristar Products and the New Tristar Products, collectively, and "TRISTAR
PRODUCT" shall mean any of them.
2. PURCHASE AND SALE OF THE STOCK; CLOSING DATE.
2.1 PURCHASE AND SALE. Subject to the terms and conditions herein
contained, Seller agrees (a) to sell, assign, transfer and deliver to Purchaser
at the Closing (as hereinafter defined) all right, title and interest in and to
the Stock, the Stock being all of the issued and outstanding capital stock of
Target and (b) to be bound by the ongoing obligations set forth in SECTIONS 6.1
and 6.2. Subject to the terms and conditions herein contained, Purchaser agrees
to purchase from Seller the Stock and to pay at the Closing the Purchase Price
(as hereinafter defined) pursuant to the provisions of SECTION 3 below.
2.2 DELIVERY AND ENDORSEMENT OF CERTIFICATES. At the Closing, Seller
shall deliver to Purchaser certificates representing the Stock, duly endorsed in
blank by Seller, or accompanied by stock powers duly executed in blank by
Seller, and with all necessary transfer tax and other revenue stamps, acquired
at Seller's expense, affixed and canceled. Seller agrees to cure any
deficiencies with respect to the endorsements of the certificates representing
the Stock or with respect to the stock powers accompanying any such
certificates.
2.3 CLOSING DATE. Subject to the terms and conditions contained herein,
the consummation of transactions referred to above shall take place (the
"CLOSING") on or before March 10, 1999, at the offices of Fulbright &
Jaworski, L.L.P. in San Antonio, Texas, or at such other time, date and place as
Purchaser and Seller shall in writing designate the "CLOSING DATE").
3. PURCHASE PRICE AND PAYMENT. The aggregate consideration for (a) the
Stock, (b) the options granted to Target and the restriction on Seller's sale of
the Option Products (defined below) set forth in SECTION 6.1 and (c) the pricing
agreements of Seller set forth in SECTION 6.2 (the "PURCHASE PRICE") shall be
$2,686,000. An amount equal to the Purchase Price shall be applied first to the
reduction of the outstanding principal amount of the Tristar Indebtedness (as
defined below) and then, to the extent that the Purchase Price exceeds the
outstanding principal amount of the Tristar Indebtedness, to redeem shares of
the Series A Preferred issued to Nevell Investments, S.A. ("NEVELL") at the
Redemption Price. As used herein, the term "TRISTAR INDEBTEDNESS" shall mean,
collectively, that one certain promissory note dated April 25, 1994 in the
original principal amount of $2,600,000 executed by Seller and payable to the
order of Nevell and that one certain promissory note dated December 13, 1994 in
the original principal amount of $4,000,000 executed by Seller and payable to
the order of Nevell.
4. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and
warrants to Purchaser as follows:
4.1 INCORPORATION. Target is a business organized under the laws of the
United Mexican States.
- 2 -
<PAGE>
4.2 SHARE CAPITAL. The corporate capital of Target consists of the Stock.
There are not outstanding subscriptions, options, warrants, calls, commitments,
obligations or agreements relating to any of the corporate capital of Target.
Seller owns all of the Stock free and clear of all liabilities, liens,
encumbrances, pledges, trusts, voting trusts or stockholders' agreements,
equities, charges, options, conditional sale or title retention agreements,
covenants, restrictions, reservations, commitments, obligations or other burdens
or encumbrances of any nature whatsoever, and the consummation of the purchase
and sale contemplated by this Agreement will transfer to Purchaser title to the
Stock free and clear of any such items.
4.3 SUBSIDIARIES. Target does not, directly or indirectly, own or control
any capital stock, bonds or other securities of, or have any proprietary
interest in, any corporation, association, partnership, firm or business
organization or enterprise, nor does it directly or indirectly control the
management of any such entities, nor does it have any obligation to acquire any
such interest in the future.
4.4 EFFECT OF AGREEMENT. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby will not (a) result in
any breach of any of the terms or conditions of the organizational documents of
Target or (b) conflict with, or result in a breach of or default under, the
terms of any agreement, contract, indenture or other instrument to which the
Target is a party or to which any of its property is subject.
4.5 AUTHORIZATION. Seller has full legal right, power and authority to
enter into and deliver this Agreement and to consummate the transactions set
forth herein and to perform all the terms and conditions hereof to be performed
by Seller. This Agreement has been duly executed and delivered by Seller and is
a legal, valid and binding obligation of Seller enforceable in accordance with
its terms, except as limited by applicable bankruptcy, moratorium, insolvency or
other laws affecting generally the rights of creditors or by principles of
equity.
4.6 BROKERS AND FINDERS. No broker or finder has acted for Target or
Seller in connection with this Agreement or the transactions contemplated by
this Agreement and no broker or finder is entitled to any brokerage or finder's
fee or to any commission in respect thereof based in any way on agreements,
arrangements or understandings made by or on behalf of Seller or Target.
4.7 DEBT OF TARGET. To Seller's knowledge, Target has no material debt or
obligations of any kind, fixed or contingent, matured or unmatured, other than
those obligations that have been previously disclosed to Purchase by Seller.
5. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents and
warrants to Seller as follows:
5.1 INCORPORATION. Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the British Virgin Islands.
5.2 AUTHORIZATION Purchaser has full legal right and corporate power to
enter into and deliver this Agreement and to consummate the transactions set
forth herein and to perform all the terms and conditions hereof to be performed
by it. This Agreement has been duly executed and delivered by Purchaser and is a
legal, valid and binding obligations of Purchaser enforceable in accordance with
its terms, except as limited by applicable bankruptcy, moratorium, insolvency or
other laws affecting generally the rights of creditors or by principles of
equity.
5.3 BROKERS AND FINDERS. No broker or finder has acted for Purchaser in
connection with this Agreement or the transactions contemplated by this
Agreement and no broker or finder is entitled to any brokerage or finder's fee
or to any commission in respect thereof based in any way on agreements,
arrangements or understandings made by or on behalf of Purchaser.
6. CONTINUING OBLIGATIONS OF SELLER.
6.1 TARGET'S OPTION TO PURCHASE NEW TRISTAR PRODUCTS/EXISTING TRISTAR
PRODUCTS, ETC.
(a) Target shall have the option to purchase from Seller for sale in the
United Mexican States any Existing Tristar Product from and after the Closing
Date by notifying Seller of its desire to do so on the Closing Date.
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(b) Target shall additionally have the option to purchase from Seller for
sale in the United Mexican States any New Tristar Product by notifying Seller of
its desire to do so within 120 days of Target's receipt of notice from Seller
that Seller intends to market such New Tristar Product.
(c) In the event Target timely exercises its option to sell any of the
Existing Tristar Products or any of the New Tristar Products (whether one or
more, the Existing Tristar Products and the New Tristar Products for which
Target has exercised its option to so purchase and sell are hereinafter referred
to as the "OPTION PRODUCTS") by notifying Seller of such exercise in writing
by the date or within the period set forth above, then, so long as Seller
determines that Target is using its best good faith efforts to market and sell
such Option Products in the formal market in the United Mexican States, Seller
(i) shall not sell such Option Products directly to the formal market in the
United Mexican States and (ii) shall not knowingly sell, directly or indirectly,
such Option Products to the formal market in the United Mexican States from or
through the United States of America.
(d) Nothing in this Agreement shall be deemed or construed in any manner
whatsoever to restrict Seller's sale of any of Seller's products other than the
Option Products or restrict the sale of the Option Products except as set forth
in SECTION 6.1(C) above.
6.2 PRICE OF OPTION PRODUCTS. After the Closing Date, subject to the
terms and provisions of this Agreement, Seller shall sell the Option Products to
Target until November 29, 2001, at the prices and on the terms set forth on
SCHEDULE 6.2 attached hereto and made a part hereof, PROVIDED, HOWEVER, (a)
beginning on September 1, 1999, and on each September 1 thereafter, the prices
on SCHEDULE 6.2 shall be subject to normal inflation pricing increases AND (b)
the prices on SCHEDULE 6.2 shall be subject to adjustment as required by the
results of the independent transfer pricing study presently being conducted.
7. CONDITIONS TO OBLIGATIONS OF PURCHASER. The obligation of Purchaser
hereunder to proceed to closing are, at the option of Purchaser, subject to the
satisfaction, on or prior to the Closing Date, of the following conditions (any
of which may be waived by the Purchaser in its sole discretion):
7.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES AND FULFILLMENTS OF
COVENANTS. The representations and warranties of Seller contained in this
Agreement shall be true and correct on and as of the Closing Date with the same
effect as though such representations and warranties had been made on and as of
such date. Each and all of the agreements and covenants of Seller to be
performed on or before the Closing Date pursuant to the terms hereof shall have
been performed.
7.2 NO GOVERNMENTAL ACTIONS. No action or proceeding before a
Governmental Authority shall have been instituted or threatened to restrain or
prohibit the transactions contemplated by this Agreement. No Governmental
Authority shall have taken any other action as a result of which the management
of Purchaser reasonably deems it inadvisable to proceed with the transactions
contemplated by this Agreements.
7.3 TRANSFER AND ASSIGNMENT DOCUMENTS. Seller shall have delivered to
Purchaser all documents reasonably necessary or required to effectively transfer
and assign the Stock to Purchaser, such transfer and assignment to convey title
to the Stock to Purchaser, free and clear of all liens and encumbrances
whatsoever, and to be in form and substance reasonably satisfactory to Purchaser
and its counsel.
8. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER. The obligations of
Seller hereunder are, at its option, subject to the satisfaction, on or prior to
the Closing Date, of the following conditions (any of which may be waived by
Seller, in its sole discretion):
8.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES AND FULFILLMENT OF
COVENANTS. The representations and warranties of Purchaser contained in this
Agreement shall be true and correct on and as of the Closing Date with the same
effect as though such representations and warranties had been made on and as of
such date. Each of the agreements and covenants of Purchaser to be performed on
or before the Closing Date shall have been performed.
8.2 DELIVERY OF PURCHASE PRICE. Purchaser shall delivered to Seller all
documents, in form and substance reasonably acceptable to Seller's counsel,
necessary to evidence an aggregate amount equal to the
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Purchase Price in the reduction of the outstanding principal amount of the
Tristar Indebtedness and, to the extent that the Purchase Price exceeds the
outstanding principal amount of the Tristar Indebtedness, to the reduction of
accrued and unpaid distributions on the shares of the Series A Preferred issued
to Nevell and to the Redemption Price due from Seller to Nevell for an equal
number of shares of the Series A Preferred Stock issued to Nevell.
8.3 APPROVAL OF COUNSEL. All actions, proceedings, instruments and
documents required or incidental to carrying out this Agreement and all other
related legal matters shall have been approved by Fulbright & Jaworski, L.L.P.,
counsel to Seller.
9. EXPENSES. Whether or not the transactions contemplated hereby are
consummated, each of the parties will pay all costs and expenses of its
performance of and compliance with this Agreement.
10. FURTHER ACTIONS. From time to time, at the request of any party
hereto, the other parties hereto shall execute and deliver such instruments and
take such action as may be reasonably requested to evidence the transactions
contemplated hereby.
11. ARBITRATION. The parties agree that any dispute or controversy
arising out of or in connection with this Agreement or any alleged breach hereof
shall be settled by arbitration in San Antonio, Texas pursuant to the rules of
the State of Texas. If Purchaser, on the one hand, and Seller on the other hand,
cannot jointly select a single arbitrator to determine the matter, one
arbitrator shall be chosen by Purchaser, on the one hand (or, if either fails to
make a choice, by a court of competent jurisdiction on behalf of such party),
and the two arbitrators so chosen will select a third. The decisions of the
single arbitrator jointly selected by the parties, or, if three arbitrators are
selected, the decision of any two of them, will be final and binding upon the
parties and the judgment of a court of competent jurisdiction may be entered
thereon. Each party shall pay the fees and expenses of its chosen arbitrator,
and the fees and expenses of the third arbitrator shall be shared equally by the
parties.
12. OPTION TO REPURCHASE; EXERCISE PRICE; REPURCHASE CLOSING
DATE. Purchaser hereby grants to Seller the option to repurchase the Stock, to
terminate the options and the restrictions on Seller's sales of the Option
Products set forth in SECTION 6.1 and to terminate the pricing provisions set
forth in SECTION 6.2 (the "REPURCHASE OPTION" on the same terms and conditions
as Purchaser purchased the same from Seller hereunder; PROVIDED, HOWEVER, the
purchase price for the Stock, the termination of the options and the
restrictions on Seller's sales of the Option Products set forth in SECTION 6.1
and the termination of the pricing provisions set forth in SECTION 6.2 (the
"REPURCHASE PRICE") shall be an amount equal to the sum of (a) the difference
between (i) $2,540,000 MINUS (ii) the net book value of Target as of the Closing
date, PLUS (b) interest at the rate of ten percent (10%) per annum on (i) such
difference from the Closing Date until the closing of the repurchase of the
Stock, the termination of the options and the restrictions on Seller's sales of
the Option Products set forth in SECTION 6.1 and the termination of the pricing
provisions set forth in SECTION 6.2 (the "REPURCHASE CLOSING") and (ii) any
additional investment(s) made by the Purchaser to Target after the Closing Date
from the date of such investment(s) until the Repurchase Closing PLUS (c) the
net book value of Target as of the Repurchase Closing. The Repurchase Option
shall be exercisable at any time prior to the fifth anniversary of the Closing
Date by written notice from Seller to Purchaser. If Seller exercises the
Repurchase Option, the Repurchase Closing shall take place at the offices of
Fulbright & Jaworski, L.L.P., 300 Convent, Suite 2200, San Antonio, Texas,
commencing at 10:00 a.m. local time not later than 60 days following Seller's
exercise of the Option (the "REPURCHASE CLOSING DATE").
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13. NOTICES. All notices, requests, demands and other communications
required or permitted to be given hereunder shall be in writing and shall be
deemed to have been duly given if delivered personally, given by prepaid telex
or telegram or by facsimile or other similar instantaneous electronic
transmission device or mailed first class, postage prepaid, certified United
States mail, return receipt requested, as follows:
(a) If to Purchaser, at:
Transvit Holding Corporation
P.O. Box 7707
Dubai, U.A.E.
Attention: B.J. Harid
Facsimile No. (011) 9714 556885
With a copy to:
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
300 Convent, Suite 1500
San Antonio, Texas 78205
Attention: Stephen C. Mount
Facsimile No. (210) 224-2035
(b) If to Seller, at:
Tristar Corporation
12500 San Pedro Avenue, Suite 500
San Antonio, TX 78216
Attention: President
Facsimile No. (210) 402-2216
With a copy to:
Fulbright & Jaworski L.L.P.
300 Convent Street, Suite 2200
San Antonio, Texas 78205
Attention: Phillip M. Renfro
Facsimile No. (210) 270-7205
provided that any party may change its address for notice by giving to the other
party written notice of such change. Any notice given under this SECTION 13
shall be effective (i) if delivered personally, when delivered, if sent by telex
or telegram or by facsimile or other similar instantaneous electronic
transmission device, 24 hours after sending and (ii) if mailed, 48 hours after
mailing.
14. GENERAL PROVISIONS.
14.1 GOVERNING LAW, INTERPRETATION; SECTION HEADINGS. This Agreement
shall be governed by and construed and enforced in accordance with the laws of
the State of Texas. The section headings contained herein are for purposes of
convenience only, and shall not be deemed to constitute a part of this Agreement
or to affect the meaning or interpretation of this Agreement in any way.
14.2 SEVERABILITY. Should any provision of this Agreement be held
unenforceable or invalid under the laws of the United States of America or the
State of Texas, or under any other applicable laws of any other jurisdiction,
then the parties hereto agree that such provision shall be deemed modified for
purposes of performance of this Agreement in such jurisdiction to the extent
necessary to render it lawful and enforceable, or if such a modification is not
possible without materially altering the intentions of the parties hereto, then
such provision shall be severed herefrom for purposes of performance of this
Agreement in such jurisdiction. The validity of the remaining provisions of this
Agreement shall not be affected by any such modification or severance, except
that if any severance materially alters the intentions of the parties
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<PAGE>
hereto as expressed herein (a modification being permitted only if there is no
material alteration), then the parties hereto shall use commercially reasonable
effort to agree to appropriate equitable amendments to this Agreement in light
of such severance, and if no such agreement can be reached within a reasonable
time, any party hereto may initiate arbitration as provided in SECTION 11 above.
14.3 ENTIRE AGREEMENT. This Agreement sets forth the entire agreement and
understanding of the parties hereto with respect to the transactions
contemplated hereby, and supersedes all prior agreements, arrangements and
understandings related to the subject matter hereof. No representation, promise,
inducement or statement of intention has been made by any party hereto which is
not embodied in this Agreement, and no party hereto shall be bound by or liable
for any alleged representation, promise, inducement or statement of intention
not so set forth.
14.4 SURVIVABILITY, BINDING EFFECT. The representations and warranties
set forth herein shall survive the consummation of this Agreement. All the
terms, provisions, covenants and conditions of this Agreement shall be binding
upon and inure to the benefit of and be enforceable by the parties hereto and
their respective successors and assigns.
14.5 ASSIGNMENT. Except as specifically permitted herein, this Agreement
and the rights and obligations of the parties hereto shall not be assigned or
delegated by either party hereto without the prior written consent of the other
party hereto.
14.6 AMENDMENT WAIVER. This Agreement may be amended, modified,
superseded or canceled, and any of the terms, provisions, representatives,
warranties, covenants or conditions hereof may be waived, only by a written
instrument executed by all parties hereto, or, in the case of a waiver, by the
party waiving compliance. The failure of any party at any time or times to
require performance of any provision hereof shall in no manner affect the right
to enforce the same. No waiver by any party of any condition contained in this
Agreement, or of the breach of any term, provision, representation, warranty or
covenant contained in this Agreement, in any one or more instances, shall be
deemed to be or construed as a further or continuing waiver of any such
condition or breach, or as a waiver of any other condition or of the breach of
any other term, provision, representation, warranty or covenant.
14.7 COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This Agreement
shall be binding when one or more counterparts hereof, individually or taken
together, shall bear the signatures of the parties reflected hereon as
signatories.
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14.8 TELECOPY EXECUTION AND DELIVERY. A facsimile, telecopy or other
reproduction of this Agreement may be executed by one or more parties hereto,
and an executed copy of this Agreement may be delivered by one or more parties
hereto by facsimile or similar instantaneous electronic transmission device
pursuant to which the signature of or on behalf of such party can be seen, and
such execution and delivery shall be considered valid, binding and effective for
all purposes. At the request of either party hereto, all parties hereto agree to
execute an original of this Agreement as well as any facsimile, telecopy or
other reproduction hereof.
[signatures on next page]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
Purchaser:
TRANSIT HOLDING CORPORATION
By:
Name:
Title:
Seller:
TRISTAR CORPORATION
By:
Name:
Title:
ACCEPTED AND AGREED TO:
NEVIL INVESTMENTS, S.A.
By:
Name:
Title:
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Schedule 6.2
OPTION PRODUCTS
EXISTING BRANDS CURRENTLV SOLD BY TRISTAR
CORPORATION TO TRISTAR DE MEXICO
EURO COLLECTIONS Price to Tristar de Mexico
Euro Collections - 100 ml $1.35 each
Euro Collections - Body Spray $.47 each
Euro Collections - Body Glitter $.75 each
PREMIERE EDITIONS
Premiere - EDT - Tall Unit Cartons $.67 each
Premiere - EDT - Short Unit Cartons $.60 each
Premiere - Body Sprays $.47 each
BRANDS SOLD IN THE UNITED STATES FORMAL/RETAIL MARKET TO BE MADE
AVAILABLE TO TRISTAR DE MEXICO (SEE NOTE):
Euro Collections
Fragrances
Body Sprays
Glitter
After Shave
Garden Fragrances
Garden Body Sprays
Premiere Editions SELLER RESERVES OPTION, UNDER
Fragrances SECTION 6.1.a HEREOF, TO PURCHASE
Body Sprays ANY OR ALL OF THESE PRODUCTS.
Botanical Fragrances
Botanical Body Sprays
DCA
Fragrances
Minis
Lipsticks
Regal Collections
Fragrances
Country Scents Fragrances
Apple
Pencils - bar coded
Simply You
Dust Powder
Shaker Talc
Schedule 6.2
Note: Prices to be determined upon Tristar de Mexico's acceptance of brands.
