<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
SCHEDULE 13D
Under the Securities Exchange Act of 1934
-------------
IMPERIAL HOLLY CORPORATION
- --------------------------------------------------------------------------
(Name of Issuer)
COMMON STOCK, WITHOUT PAR VALUE 452835AA9
- ----------------------------------- -----------------------------------
(Title of class of securities) (CUSIP number)
Steven D. Rubin, Esq.
Weil, Gotshal & Manges LLP
700 Louisiana, Suite 1600
Houston, Texas 77002
(713) 546-5030
- --------------------------------------------------------------------------
(Name, address and telephone number of person authorized to receive
notices and communications)
July 25, 1996
- --------------------------------------------------------------------------
(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the
following box [_].
Check the following box if a fee is being paid with the statement [x].
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent
of the class of securities described in Item 1; and (2) has filed no
amendment subsequent thereto reporting beneficial ownership of five
percent or less of such class.) (See Rule 13d-7.)
Note: When filing this statement in paper format, six copies of this
statement, including exhibits, should be filed with the Commission. See
Rule 13d-1(a) for other parties to whom copies are to be sent.
Continued on the following pages
<PAGE>
<PAGE>
CUSIP No. 13D
1 NAME OF REPORTING PERSON: Greencore Group plc
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON:
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [_]
(b) [_]
3 SEC USE ONLY
4 SOURCE OF FUNDS: WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS [_]
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):
6 CITIZENSHIP OR PLACE OF Ireland
ORGANIZATION:
NUMBER OF 7 SOLE VOTING POWER: 0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER: 3,800,000
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER: 0
REPORTING
PERSON WITH 10 SHARED DISPOSITIVE 3,800,000
POWER:
11 AGGREGATE AMOUNT BENEFICIALLY 3,800,000
OWNED BY REPORTING PERSON:
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [_]
EXCLUDES CERTAIN SHARES:
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 26.9%
14 TYPE OF REPORTING PERSON: CO
<PAGE>
<PAGE>
CUSIP No. 13D
1 NAME OF REPORTING PERSON: Earlsfort Holdings B.V.
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON:
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [_]
(b) [_]
3 SEC USE ONLY
4 SOURCE OF FUNDS: WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS [_]
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):
6 CITIZENSHIP OR PLACE OF Netherlands
ORGANIZATION:
NUMBER OF 7 SOLE VOTING POWER: 0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER: 3,800,000
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER: 0
REPORTING
PERSON WITH 10 SHARED DISPOSITIVE 3,800,000
POWER:
11 AGGREGATE AMOUNT BENEFICIALLY 3,800,000
OWNED BY REPORTING PERSON:
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [_]
EXCLUDES CERTAIN SHARES:
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 26.9%
14 TYPE OF REPORTING PERSON: CO
<PAGE>
<PAGE>
ITEM 1. SECURITY AND ISSUER
This statement relates to the common stock, without par
value ("Common Stock"), of Imperial Holly Corporation, a Texas
corporation (the "Issuer"). The address of the Issuer's principal
executive office is One Imperial Square, Suite 200, P.O. Box 9, Sugar
Land, Texas 77487.
ITEM 2. IDENTITY AND BACKGROUND
The persons filing this statement are Greencore Group plc, a
corporation organized under the laws of the Republic of Ireland
("Greencore"), and Earlsfort Holdings B.V., a corporation organized
under the laws of the Netherlands ("Earlsfort" and, together with
Greencore, the "Filing Persons"). Greencore's principal business is
the supply of primary foods and related products, food ingredients and
prepared foods to industrial and consumer markets. Earlsfort is an
indirect wholly-owned subsidiary of Greencore and is a holding company
which owns (directly and indirectly) shares of non-Irish subsidiaries
through which Greencore conducts certain of its operations. The
address of Greencore's principal business and its principal office is
St. Stephen's Green House, Earlsfort Terrace, Dublin 2, Ireland. The
name, business address, present principal occupation and citizenship
of each executive officer and director of Greencore are set forth on
Schedule A. The address of Earlsfort's principal business and its
principal office is Amsteldijk 166, 1079 LH, Amsterdam, The
Netherlands. The name, business address, present principal occupation
and citizenship of each executive officer and director of Earlsfort
are set forth on Schedule B. Other than Greencore's executive
officers and directors, there is no other person ultimately
controlling
<PAGE>
<PAGE>
Greencore. Other than Greencore and Earlsfort's executive officers
and directors, there is no other person ultimately controlling
Earlsfort. There is no corporation or other person ultimately in
control of Greencore.
Neither Greencore nor Earlsfort, nor any executive officer
or director thereof, has, during the last five years, been (a)
convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors), or (b) a party to a civil proceeding or a
judicial or administrative body of competent jurisdiction and as a
result of such proceeding was or is subject to a judgment, decree or
final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws or
finding any violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
The aggregate purchase price for the 3,800,000 shares of
Common Stock is $50,350,000. The Filing Persons will obtain such
funds from their available working capital.
ITEM 4. PURPOSE OF TRANSACTION
The Filing Persons plan to acquire the Common Stock pursuant
to, and upon the satisfaction of the conditions precedent set forth
in, the Stock Purchase Agreement, dated as of July 25, 1996 (the
"Purchase Agreement"), among the Filing Persons and the Issuer. The
Filing Persons are acquiring the Common Stock in order to obtain an
equity position in the Issuer.
Depending on the price and availability of shares of the
Common Stock, future developments at, and pertaining to, the Issuer,
other investment and business opportunities available to
<PAGE>
<PAGE>
the Filing Persons and general economic conditions, and subject to the
terms of the Investor Agreement to be entered into by and among the
Filing Persons and the Issuer (the "Investor Agreement"), the Filing
Persons, or their affiliates, may determine to purchase, in the open
market, in privately negotiated transactions, or otherwise, additional
shares of Common Stock. Depending on such factors, and subject to the
terms of the Investor Agreement, the Filing Persons also may determine
to sell in the open market, in privately negotiated transactions, or
otherwise, all or part of their Common Stock.
The Investor Agreement contains, among other things,
significant restrictions on the ability of the Filing Persons to
acquire additional shares of Common Stock, dispose of their shares of
Common Stock and with respect to the voting and other actions taken in
respect of their shares of Common Stock. Upon the consummation of the
transactions contemplated by the Purchase Agreement, two designees of
the Filing Persons will be appointed as directors of the Issuer. The
Investor Agreement provides that, until such time as the Filing
Persons hold less than 15% of the Voting Power (as therein defined) of
the Issuer, the Issuer will cause to be included in its annual proxy
materials persons designated by the Filing Persons ("Designees") as
nominees for election to the Issuer's Board of Directors such that two
of the Issuer's directors constitute Designees, and will solicit
proxies from its shareholders for the Designees. Reference is hereby
made to Item 6 for a more detailed description of the Purchase
Agreement and the Investor Agreement.
<PAGE>
<PAGE>
ITEM 5. INTEREST IN SECURITIES OF ISSUER
(a) As of the close of business on August 2, 1996, pursuant
to their right to acquire 3,800,000 shares of the Common Stock, the
Filing Persons may be deemed to beneficially own in the aggregate
3,800,000 shares of the Common Stock, which constitutes approximately
26.9% of the outstanding shares of Common Stock. The Filing Persons'
percentage ownership is based on 10,315,070 shares of Common Stock
outstanding as of June 3, 1996, as set forth in the Issuer's Annual
Report on Form 10-K for the fiscal year ended March 31, 1996, plus the
3,800,000 shares of Common Stock to be acquired by the Filing Persons,
which shares are deemed to be outstanding.
To the best of the Filing Persons' knowledge and belief,
none of the executive officers or the directors of any of the Filing
Persons beneficially own any shares of the Common Stock.
(b) Pursuant to their joint right to acquire the Common
Stock pursuant to the Purchase Agreement, the Filing Persons share the
power to vote or to direct the vote and to dispose or to direct the
disposition of the 3,800,000 shares of Common Stock of which the
Filing Persons are the beneficial owners. Reference is hereby made to
Item 6 for a description of the voting agreement among the Filing
Persons and the Issuer contained in the Investor Agreement.
(c) There have been no transactions in the Common Stock
within the last 60 days by the Filing Persons or, to the best of the
Filing Persons' knowledge and belief, by any of the executive officers
or the directors of the Filing Persons.
(d) The Filing Persons do not know of any other person who
has the right to receive or the power to direct the receipt
<PAGE>
<PAGE>
of dividends from, or the proceeds from the sale of, the Common Stock
to be acquired by the Filing Persons.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO THE SECURITIES OF THE ISSUER
Pursuant to the Purchase Agreement, a copy of which is
attached hereto as Exhibit 1 and incorporated herein by reference, the
Filing Persons have the right, subject to the satisfaction of certain
conditions precedent, to purchase in the aggregate 3,800,000 shares of
the Common Stock. Such conditions precedent include, among other
things, the termination or expiration of the waiting period applicable
to the purchase of the Common Stock under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976 and the listing on the American
Stock Exchange of the shares of Common Stock to be purchased. In
connection with the execution of the Purchase Agreement, the Board of
Directors of the Issuer adopted a resolution determining that for
purposes of the Issuer's Rights Agreement, dated as of September 14,
1989, as amended by Amendment, dated January 27, 1995 (the "Rights
Agreement"), the ownership percentage with respect to the Filing
Persons and their affiliates for purposes of the definition of
"Acquiring Person" in the Rights Agreement shall be 30% so long as the
Investor Agreement has not terminated and 35% from and after such
termination until such time (subject to certain exceptions) as the
Filing Persons and their affiliates beneficially own less than 15% of
the then outstanding shares of the Common Stock at which time such
percentage shall become 15%.
Upon the closing of the acquisition contemplated by the
Purchase Agreement, the Filing Persons and the Issuer have agreed
<PAGE>
<PAGE>
to enter into a Registration Rights Agreement and an Investor
Agreement, which are attached hereto as Exhibits A and B,
respectively, to the Purchase Agreement, and are incorporated herein
by reference. The Registration Rights Agreement gives the holders of
Registrable Securities (as therein defined) the right, subject to
certain conditions, to (i) register their Registrable Securities
pursuant to a registration proposed by the Issuer for its own account
or for the account of any other person, subject to customary "cut-
backs" and (ii) demand that the Issuer effect up to two registrations
of Registrable Securities, which registrations must cover at least 35%
of the shares of Registrable Securities then outstanding.
The Investor Agreement contains restrictions on the Filing
Persons' right to (i) acquire shares of Common Stock such that the
Filing Persons and their affiliates would, in the aggregate, hold 30%
or more of the Voting Power (as therein defined) of the Issuer, (ii)
solicit proxies with respect to securities of the Issuer, (iii) take
any public action for the purpose of convening a shareholders meeting
of the Issuer, (iv) make certain public announcements relating to the
acquisition of voting securities of the Issuer, (v) deposit voting
securities of the Issuer into a trust or subject the same to voting
agreements, (vi) form or participate in a group for the purpose of
acquiring, holding, voting or disposing of securities of the Issuer,
(vii) disclose publicly any intention inconsistent with the foregoing
or (viii) enter into any discussions or understandings with any third
party with a view to any action prohibited by any of the foregoing.
The Investor Agreement also restricts the Filing Persons'
right to sell, transfer any beneficial interest in,
<PAGE>
<PAGE>
pledge, hypothecate or otherwise dispose any shares of the Common
Stock or other voting securities of the Issuer except (i) to wholly-
owned subsidiaries of the Filing Persons, (ii) with the prior written
consent of the Independent Directors (as therein defined) of the
Issuer, (iii) pursuant to a tender or exchange offer recommended to
the shareholders by the Independent Directors, (iv) in a transaction
involving no more than 2% of the Voting Power of the Issuer, (v) in a
bona fide, widely distributed, underwritten public offering pursuant
to a registration statement permitted by the Registration Rights
Agreement, (vi) into a tender or exchange offer not approved by the
Issuer's Board of Directors, pursuant to which, if consummated, the
offeror would beneficially own more than 50% of the Voting Power,
(viii) pursuant to a merger or consolidation in which the Issuer is
acquired, or sale of all or substantially all of the Issuer's assets
to another corporation or any other transaction approved by the
Issuer's Board of Directors, or (viii) to other persons, provided that
the Issuer shall have a right of first offer to purchase such
securities. Any proposed sale or other disposition of voting
securities pursuant to clause (ii) or (vi) above is subject to the
Issuer's right to purchase such securities pursuant to the right of
first refusal set forth in the Investor Agreement.
The Investor Agreement provides that Filing Persons shall
vote all voting securities directly or indirectly owned by them in the
manner recommended to shareholders by the Issuer's Board of Directors
in connection with the election of directors of the Issuer. The
Investor Agreement shall terminate upon the earlier to occur of the
fifth anniversary of the date of the Investor Agreement, the date on
which the Filing Persons
<PAGE>
<PAGE>
beneficially own less than 8% of the Voting Power and upon certain
other circumstances specified therein.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit 1 - Stock Purchase Agreement among the Filing
Persons and the Issuer (including forms of the Registration Rights
Agreement and the Investor Agreement as Exhibit A and B thereto,
respectively).
Exhibit 2 - Joint Filing Agreement, dated August 2, 1996.
<PAGE>
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is
true, complete and correct.
GREENCORE GROUP PLC
August 2, 1996 By: /s/ Kevin O'Sullivan
----------------------- -------------------------------------
Date Name: Kevin O'Sullivan
Title Chief Financial Officer and
Director
<PAGE>
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is
true, complete and correct.
EARLSFORT HOLDINGS B.V.
August 2, 1996 By: /s/ Kevin O'Sullivan
----------------------- -------------------------------------
Date Name: Kevin O'Sullivan
Title: Managing Director
<PAGE>
<PAGE>
SCHEDULE A
----------
The name, present principal occupation and business address
of the directors and executive officers of Greencore Group plc are set
forth below. Kevin O'Sullivan is a citizen of Great Britain. All
other executive officers and directors named below are citizens of the
Republic of Ireland.
<TABLE>
<CAPTION>
Present
Principal Business
Name Occupation Address
<S> <C> <C>
B. M. Cahill Chairman of Greencore St. Stephen's
Chairman Group plc and Chairman Green House,
of Aer Lingus Group Earlsfort Terrace,
plc, the national Dublin 2, Ireland
airline of Ireland
A. D. Barry Chairman of CRH plc, a 42 Fitzwilliam
Non-Executive cement manufacturer Square
Director Dublin 2, Ireland
E. D. Galvin Chairman of Waterford 1/2 Upper Hatch
Non-Executive Crystal Limited, a Street
Director crystal manufacturer Dublin 2, Ireland
M. Rafferty Chairman of United Belgard Road,
Non-Executive Drug plc, a Tallaght
Director pharmaceutical Dublin 4, Ireland
distributor
R. D. Scott Non-Executive Director Coppins, Herley
Non-Executive of Greencore Group plc Field
Director Douglas Cork,
Ireland
S. J. Sheehy Professor of University College
Non-Executive Agricultural Economics Dublin
Director at University College Belfield
Dublin, a public Dublin 4, Ireland
university
J. J. Stakelum Management Consultant 17 Clyde Road,
Non-Executive at Business Ballsbridge
Director Enterprises Ltd. Dublin 4, Ireland
D. J. Dilger Chief Executive of St. Stephen's
Director and Greencore Group plc Green House,
Chief Executive Earlsfort Terrace,
Dublin 2, Ireland
K.C. O'Sullivan Chief Financial St. Stephen's
Director and Officer of Greencore Green House,
Chief Financial Group plc Earlsfort Terrace,
Officer Dublin 2, Ireland
B. J. Power Chief Administrative St. Stephen's
Director and Officer of Greencore Green House,
Chief Group plc Earlsfort Terrace,
Administrative Dublin 2, Ireland
Officer
</TABLE>
<PAGE>
<PAGE>
SCHEDULE B
----------
The name, present principal occupation, business address and
citizenship of the directors and executive officers of Earlsfort
Holdings B.V. are set forth below.
<TABLE>
<CAPTION>
Present
Principal Business
Name Occupation Address Citizenship
<S> <C> <C> <C>
Shareen Lawyer at Amsteldijk The Netherlands
Pertet IMFC B.V. 166
Gentil 1079 LH,
Managing Amsterdam
Director The
Netherlands
Henry Lawyer at Amsteldijk The Netherlands
Samuel IMFC B.V. 166
Leijesdorff 1079 LH,
Managing Amsterdam
Director The
Netherlands
Johanna Legal Amsteldijk The Netherlands
Maria Assistant at 166
Managing IMFC B.V. 1079 LH,
Director Amsterdam
The
Netherlands
Christina Legal Amsteldijk The Netherlands
Rasing Assistant at 166
Managing IMFC B.V. 1079 LH,
Director Amsterdam
The
Netherlands
Benjamin Chief St. Ireland
John Power Administrative Stephen's
Managing Officer Green
Director of Greencore House,
Group plc Earlsfort
Terrace,
Dublin 2
Ireland
Kevin Clive Chief St. Great Britain
O'Sullivan Financial Stephen's
Managing Officer of Green
Director Greencore House,
Group plc Earlsfort
Terrace,
Dublin 2
Ireland
</TABLE>
<PAGE>
<PAGE>
EXHIBIT INDEX
-------------
Name of Exhibit
---------------
Exhibit 1 - Stock Purchase Agreement
Exhibit 2 - Joint Filing Agreement
<PAGE>
Exhibit 1
IMPERIAL HOLLY CORPORATION
STOCK PURCHASE AGREEMENT
July 25, 1996
<PAGE>
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1 SALE OF STOCK; CLOSING; DELIVERY.................................1
1.1 Sales of Stock...................................................1
1.2 Closing..........................................................1
1.3 Payment and Delivery.............................................1
SECTION 2 REPRESENTATIONS AND WARRANTIES OF THE COMPANY....................1
2.1 Organization and Standing; Articles of Incorporation
and Bylaws.......................................................1
2.2 Corporate Power..................................................2
2.3 Capitalization...................................................2
2.4 Authorization....................................................2
2.5 SEC Documents....................................................3
2.6 Absence of Undisclosed Liabilities...............................3
2.7 Compliance with Other Instruments................................3
2.8 Governmental Consent, etc........................................3
2.9 Litigation.......................................................4
2.10 Securities Laws..................................................4
2.11 Permits..........................................................4
2.12 Environmental....................................................4
SECTION 3 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER..................4
3.1 Experience.......................................................4
3.2 Accredited Investor..............................................4
3.3 Investment.......................................................4
3.4 Rule 144.........................................................5
3.5 No Federal or State Approval.....................................5
3.6 Access to Data...................................................5
3.7 Authorization....................................................5
3.8 Brokers or Finders...............................................5
3.9 Compliance with Other Instruments................................5
3.10 Governmental Consent, etc........................................5
3.11 No Ownership.....................................................6
3.12 Subsidiary.......................................................6
SECTION 4 CONDITIONS TO CLOSING OF PURCHASER...............................6
4.1 Representations and Warranties Correct...........................6
4.2 No Injunctions...................................................6
4.3 HSR Clearance....................................................6
4.4 AMEX Listing.....................................................6
4.5 Rights Agreement.................................................6
4.6 Due Diligence Investigation......................................6
SECTION 5 CONDITIONS TO CLOSING OF COMPANY.................................7
5.1 Representations and Warranties Correct...........................7
5.2 No Injunctions...................................................7
<PAGE>
<PAGE>
5.3 HSR Clearance....................................................7
5.4 AMEX Listing.....................................................7
5.5 Shareholder Approval. ..........................................7
SECTION 6 RESTRICTIONS ON TRANSFERABILITY OF
SECURITIES;COMPLIANCE WITH SECURITIES ACT........................7
6.1 Restrictions on Transferability..................................7
6.2 Restrictive Legend...............................................8
6.3 Notice of Proposed Transfers.....................................8
SECTION 7 COVENANT.........................................................9
7.1 HSR Filings......................................................9
7.2 Related Agreements...............................................9
7.3 Fulfillment of Closing Conditions................................9
7.4 No Purchases, Sales or Hedge Transactions........................9
7.5 Operations in the Ordinary Course of Business. .................9
7.6 Use of Proceeds..................................................9
7.7 Rights Plan Adjustment...........................................9
SECTION 8 MISCELLANEOUS...................................................10
8.1 Letter Agreement Effective......................................10
8.2 Termination.....................................................10
8.3 Governing Law...................................................10
8.4 Successors and Assigns..........................................10
8.5 Entire Agreement; Amendment.....................................10
8.6 Publicity.......................................................11
8.7 Confidentiality.................................................11
8.8 Notices, etc....................................................11
8.9 Severability....................................................12
8.10 Titles and Subtitles............................................12
8.11 Facsimile Signatures............................................12
8.12 Counterparts....................................................12
EXHIBITS
A -- Form of Registration Rights Agreement
B -- Form of Investor Agreement
<PAGE>
<PAGE>
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is entered into effective
as of July 25, 1996 by and among IMPERIAL HOLLY CORPORATION, a Texas corporation
(the "Company"), and GREENCORE GROUP PLC and EARLSFORT HOLDINGS B.V.
("Purchaser").
SECTION I.
SALE OF STOCK; CLOSING; DELIVERY
A. SALES OF STOCK. Subject to the terms and conditions hereof, the Company
agrees to issue and sell to Purchaser, and Purchaser agrees to buy from the
Company 3,800,000 shares (the "Shares") of the Company's authorized but unissued
Common Stock, without par value, for a purchase price of $13.25 per share for an
aggregate purchase price of $50,350,000. Each share will include rights issued
pursuant to the Rights Agreement dated as of September 14, 1989 between the
Company and the Bank of New York, as amended by Amendment dated January 27, 1995
(the "Rights Agreement").
B. CLOSING. The closing of the purchase and sale of the Shares hereunder
(the "Closing") will take place at 10:00 a.m., local time, on a date specified
by the parties (the "Closing Date"), which will be no later than the second
business day following the satisfaction or waiver of the conditions set forth in
Sections 4 and 5 hereof, at the offices of Baker & Botts, L.L.P., One Shell
Plaza, 910 Louisiana, Houston, Texas, or at such other time and place upon which
the Company and Purchaser may mutually agree.
C. PAYMENT AND DELIVERY. At the Closing, the Company will deliver to
Purchaser a certificate evidencing the Shares, against payment of the purchase
price therefor, by wire transfer in same- day funds pursuant to the Company's
instructions which instructions shall be delivered to Purchaser at least two
business days prior to the Closing.
SECTION II.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth on the disclosure schedule delivered by the Company
concurrently herewith (the "Disclosure Schedule"), the Company represents and
warrants to the Purchaser as of the date hereof and as of the Closing as
follows:
<PAGE>
<PAGE>
A. ORGANIZATION AND STANDING; ARTICLES OF INCORPORATION AND BYLAWS. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Texas. The Company has all requisite corporate
power and authority to own and operate its properties and assets, and to carry
on its business as presently conducted. The Company is currently qualified to do
business as a foreign corporation in each jurisdiction where the failure to be
so qualified would have a material adverse effect on the properties or business
as now conducted or financial condition of the Company and its subsidiaries,
taken as a whole ("Material Adverse Effect"). The Company has furnished to
Purchaser correct and complete copies of its Articles of Incorporation
("Charter"), Bylaws and Rights Agreement, each as amended to date.
B. CORPORATE POWER. The Company has and will have on the Closing Date all
requisite corporate power and authority to execute and deliver this Agreement,
the Registration Rights Agreement and the Investor Agreement (both defined in
Section 7.2 hereof), to sell and issue the Shares hereunder and to carry out and
perform its obligations under the terms of this Agreement, the Registration
Rights Agreement and the Investor Agreement.
C. CAPITALIZATION. The authorized capital stock of the Company consists of
50,000,000 shares of Common Stock, without par value (the "Common Stock"), of
which 10,315,070 shares were issued and outstanding as of June 3, 1996, and
5,000,000 shares of Preferred Stock, without par value (the "Preferred Stock"),
of which 333,334 shares have been designated "Series A Junior Participating
Preferred Stock" and reserved for issuance pursuant to the Rights Agreement, no
shares of which are outstanding. The outstanding shares have been duly
authorized and validly issued, and are fully paid and nonassessable. The Company
has reserved 3,800,000 shares of Common Stock for issuance hereunder. The
Disclosure Schedule contains a complete list of shares of Common Stock reserved
and available for issuance to employees or directors under the Company's stock
purchase and option plans. Except as set forth above and in the Disclosure
Schedule, (i) no subscription, warrant, option or other right to purchase or
acquire any shares of any class of capital stock of the Company or securities
convertible into such capital stock is authorized or outstanding, and (ii) there
is no commitment of the Company to issue any such shares, warrants, options or
other such rights or securities.
D. AUTHORIZATION. All corporate action on the part of the
Company, its shareholders (subject to Section 5.5 hereof) and its
board of directors necessary for the authorization, execution,
<PAGE>
<PAGE>
delivery and performance of this Agreement, the Registration Rights Agreement
and the Investor Agreement by the Company, the authorization, sale, issuance and
delivery of the Shares and the performance of all of the Company's obligations
hereunder and thereunder has been taken or will be taken prior to the Closing.
This Agreement, the Registration Rights Agreement and the Investor Agreement,
when executed and delivered by the Company, shall constitute valid and binding
obligations of the Company, enforceable in accordance with their terms, except
as such enforcement is subject to the effect of (i) any applicable bankruptcy,
insolvency, reorganization or other laws relating to or affecting creditors'
rights generally and (ii) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law). The
Shares, when issued in compliance with the provisions of this Agreement, will be
validly issued, fully paid and nonassessable; and the Shares will be free of any
pledges, liens, encumbrances or preemptive rights, other than any liens or
encumbrances created by or imposed upon the Purchaser and restrictions on
transfer under federal and state securities laws as set forth herein and under
the Investor Agreement.
E. SEC DOCUMENTS. The Company has furnished to Purchaser copies of its
Annual Report on Form 10-K for the fiscal year ended March 31, 1996 and all
other statements, reports, registration statements (other than registration
statements on Form S-8, if any) filed by the Company with the Securities and
Exchange Commission ("SEC") since March 31, 1996 and prior to the date hereof
(collectively, the "SEC Documents"). As of their respective filing dates, the
Company's SEC Documents complied in all material respects with the requirements
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or the
Securities Act of 1933, as amended (the "Securities Act"), as the case may be,
and to the Company's knowledge none of the Company's SEC Documents contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements made therein,
in light of the circumstances under which they were made, not misleading. The
financial statements of the Company contained in the Company's SEC Documents
fairly present the financial condition and results of operations of the Company
as of the respective dates thereof and for the periods therein referred to, all
in accordance with generally accepted accounting principles applied on a
consistent basis throughout the periods indicated, except in the case of
unaudited financial statements for the absence of notes thereto and subject to
normal year-end audit adjustments. Since March 31, 1996 and prior to the date
hereof,
<PAGE>
<PAGE>
there has been no event or occurrence that has caused a Material
Adverse Effect.
F. ABSENCE OF UNDISCLOSED LIABILITIES. Other than liabilities disclosed in
the SEC Documents filed prior to the date hereof or on the Disclosure Schedule,
there are no liabilities of the Company or any of its subsidiaries, except for
liabilities that have not had, and may not reasonably be expected to have, a
Material Adverse Effect.
G. COMPLIANCE WITH OTHER INSTRUMENTS. The execution, delivery and
performance of and compliance with this Agreement, the Registration Rights
Agreement and the Investor Agreement, and the issuance of the Shares, have not
resulted and will not result in any material violation of, or conflict with, or
constitute a material default under, the Company's Charter or Bylaws nor result
in the creation of any mortgage, pledge, lien, encumbrance or charge upon any of
the properties or assets of the Company. The Board of Directors of the Company
has adopted a resolution determining that, for purposes of the Rights Agreement,
and upon consummation of the Closing, the ownership percentage with respect to
the Purchaser and its affiliates for purposes of the definition of "Acquiring
Person" in the Rights Agreement shall be 30% so long as the Investor Agreement
has not terminated and 35% from and after such termination until such time as
the Purchaser and its affiliates beneficially own less than 15% of the then
outstanding shares of the Company's Common Stock, at which time such percentage
shall become 15%.
H. GOVERNMENTAL CONSENT, ETC. No consent, approval or authorization of or
designation, declaration or filing with any governmental authority on the part
of the Company is required in connection with the valid execution and delivery
of this Agreement, the Registration Rights Agreement and the Investor Agreement,
or the offer, sale or issuance of the Shares, or the consummation of any other
transaction contemplated hereby, except such filings required pursuant to the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended ("HSR Act").
I. LITIGATION. Section 2.9 of the Disclosure Schedule contains a complete
list of pending lawsuits or other legal proceedings to which the Company or any
of its subsidiaries is a party as of the date hereof. The Company believes that
no lawsuit or legal proceeding set forth in Section 2.9 of the Disclosure
Schedule is reasonably likely to have a Material Adverse Effect. The Company is
not aware of any lawsuit or legal proceeding threatened against the Company or
any of its
<PAGE>
<PAGE>
subsidiaries that could reasonably be expected to have a Material Adverse
Effect.
J. SECURITIES LAWS. In reliance on Purchaser's investment representations
of contained in Section 3, the offer, issuance, sale and delivery of the Shares,
as provided in this Agreement, are exempt from the registration requirements of
the Securities Act and all applicable state securities laws.
K. PERMITS. The Company and its subsidiaries have all permits, licenses,
registrations and approvals necessary or required by law for the Company and
each of its subsidiaries to carry on its business as presently conducted except
where the failure to have such permits, licenses, registrations and approvals is
not reasonably likely to have a Material Adverse Effect. To the best of the
Company's knowledge, there is no violation or failure of compliance on the part
of the Company or any of its subsidiaries with any of the foregoing permits,
licenses, registrations or approvals that is reasonably likely to have a
Material Adverse Effect.
L. ENVIRONMENTAL. The Company believes that no pending
environmental matter disclosed in the SEC Documents is reasonably
likely to have a Material Adverse Effect.
SECTION III.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Purchaser hereby represents and warrants to the Company with respect to
the purchase of the Shares as of the date hereof and as of the Closing as
follows:
A. EXPERIENCE. It has substantial experience in evaluating and investing
in private placement transactions of securities in companies similar to the
Company so that it is capable of evaluating the merits and risks of its
investment in the Company and has the capacity to protect its own interests.
B. ACCREDITED INVESTOR. It is an "accredited investor" as such term is
defined in Rule 501(a) of the Securities Act.
C. INVESTMENT. It is acquiring the Shares for investment for its own
account, not as a nominee or agent, and not with the view to, or for resale in
connection with, any distribution thereof. It understands that the Shares to be
purchased have not been, and will not be, registered under the Securities Act by
reason of a specific exemption from the registration provisions
<PAGE>
<PAGE>
of the Securities Act, the availability of which depends upon, among other
things, the bona fide nature of the investment intent and the accuracy of
Purchaser's representations as expressed herein.
D. RULE 144. It acknowledges that the Shares and the underlying Common
Stock must be held indefinitely unless subsequently registered under the
Securities Act or unless an exemption from such registration is available. It is
aware of the provisions of Rule 144 promulgated under the Securities Act which
permit limited resale of shares purchased in a private placement subject to the
satisfaction of certain conditions, including, among other things, the existence
of a public market for the shares, the availability of certain current public
information about the Company, the resale occurring not less than two years
after a party has purchased and paid for the security to be sold, the sale being
effected through a "broker's transaction" or in transactions directly with a
"market maker" and the number of shares being sold during any three month period
not exceeding specified limitations.
E. NO FEDERAL OR STATE APPROVAL. It understands that no Federal or state
agency has passed upon the Shares or made any finding or determination as to the
fairness of the investment or any recommendation or endorsement of the Shares.
F. ACCESS TO DATA. It has had an opportunity to discuss the Company's
business, management and financial affairs with its management.
G. AUTHORIZATION. This Agreement, the Registration Rights Agreement and
the Investor Agreement when executed and delivered by Purchaser, will constitute
valid and legally binding obligations of Purchaser, enforceable in accordance
with their terms, except as such enforcement is subject to the effect of (i) any
applicable bankruptcy, insolvency, reorganization or other laws relating to or
affecting creditors' rights generally and (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
H. BROKERS OR FINDERS. The Company has not, and will not, incur, directly
or indirectly, as a result of any action taken by Purchaser, any liability for
brokerage or finders' fees or agents' commissions or any similar charges in
connection with this Agreement.
<PAGE>
<PAGE>
I. COMPLIANCE WITH OTHER INSTRUMENTS. The execution, delivery and
performance of and compliance with this Agreement, the Registration Rights
Agreement and the Investor Agreement, and the purchase of the Shares, have not
resulted and will not result in any material violation of, or conflict with, or
constitute a material default under, the Purchaser's Charter, Bylaws or other
organizational documents nor result in the creation of, any mortgage, pledge,
lien, encumbrance or charge upon any of the properties or assets of the
Purchaser.
J. GOVERNMENTAL CONSENT, ETC. No consent, approval or authorization of or
designation, declaration or filing with any governmental authority on the part
of the Purchaser is required in connection with the valid execution and delivery
of this Agreement, or the offer, issuance, sale or purchase of the Shares, or
the consummation of any other transaction contemplated hereby, except (a) such
filings as may be required to be made with the Securities and Exchange
Commission, (b) filings, if any, to be made in compliance with applicable Blue
Sky requirements, and (c) filings required pursuant to the HSR Act.
K. NO OWNERSHIP. Purchaser does not "beneficially own" (as defined under
Rule 13d-3 of the Exchange Act) any shares of Common Stock.
L. SUBSIDIARY. Earlsfort Holdings B.V. is a wholly owned subsidiary of
Greencore Group plc, except to the extent of directors' qualifying shares, if
any.
SECTION IV.
CONDITIONS TO CLOSING OF PURCHASER
Purchaser's obligations to purchase the Shares at the Closing are, at the
option of the Purchaser, subject to the fulfillment of the following conditions:
A. REPRESENTATIONS AND WARRANTIES CORRECT. The representations and
warranties made by the Company in Section 2 hereof shall be true and correct in
all material respects as of the Closing Date with the same force and effect as
though the same had been made on and as of the Closing Date.
B. NO INJUNCTIONS. There shall not then be in effect any order enjoining
or restraining the transactions contemplated by this Agreement or the
Registration Rights Agreement.
<PAGE>
<PAGE>
C. HSR CLEARANCE. The waiting period under the HSR Act applicable to the
purchase of the Shares by Purchaser shall have expired or been terminated.
D. AMEX LISTING. The Shares shall have been approved for listing on the
American Stock Exchange.
E. RIGHTS AGREEMENT. Purchaser shall have received a certified copy of a
resolution of the Board of Directors of the Company certifying the matters set
forth in the second sentence of Section 2.7 hereof.
F. DUE DILIGENCE INVESTIGATION. Purchaser's due diligence investigation of
the Company's financial records, legal proceedings and environmental matters
shall not have revealed (i) any material and adverse error in the financial
information provided in the Company's Annual Report on Form 10-K for the year
ended March 31, 1996 that was not addressed in a subsequent SEC Document or (ii)
any environmental matter, litigation or contingent liability the likely effect
of which was not disclosed, in all material respects, by the Company to
Purchaser and that is reasonably likely to have a Material Adverse Effect. The
foregoing condition contained in this Section 4.6 may be exercised only by
written notice provided to the Company by the close of business on August 6,
1996.
SECTION V.
CONDITIONS TO CLOSING OF COMPANY
The Company's obligation to sell and issue the Shares at the Closing Date
is, at the option of the Company, subject to the fulfillment as of the Closing
Date of the following conditions:
A. REPRESENTATIONS AND WARRANTIES CORRECT. The representations and
warranties made by the Purchaser in Section 3 hereof shall be true and correct
in all material respects as of the Closing Date with the same force and effect
as though the same had been made on and as of the Closing Date.
B. NO INJUNCTIONS. There shall not then be in effect any order enjoining
or restraining the transactions contemplated by this Agreement and the
Registration Rights Agreement.
C. HSR CLEARANCE. The waiting period under the HSR Act applicable to the
purchase of the Shares by Purchaser shall have expired or been terminated.
<PAGE>
<PAGE>
D. AMEX LISTING. The Shares shall have been approved for listing on the
American Stock Exchange.
E. SHAREHOLDER APPROVAL. If required by applicable law or regulation, the
Company shall have obtained shareholder approval for the issuance of the Shares
to Purchaser. If shareholder approval is sought by the Company, the Company
agrees (i) to cause its Board of Directors to recommend to the Company's
shareholders that they approve the issuance of the Shares to Purchaser and (ii)
to use its reasonable best efforts to obtain such approval.
SECTION VI.
RESTRICTIONS ON TRANSFERABILITY OF SECURITIES;
COMPLIANCE WITH SECURITIES ACT
A. RESTRICTIONS ON TRANSFERABILITY. The Shares to be issued hereunder are
"Restricted Securities" and shall not be sold, assigned, transferred or pledged
except upon the conditions specified in this Section 6, which conditions are
intended to ensure compliance with the provisions of the Securities Act. Each
Purchaser will cause any proposed purchaser, assignee, transferee, or pledgee of
the Shares held by Purchaser to agree to take and hold such securities subject
to the provisions and upon the conditions specified in this Section 6.
B. RESTRICTIVE LEGEND. Each certificate representing (i) the Shares and
(ii) any other securities issued in respect of the Shares upon any stock split
stock dividend, recapitalization, merger, consolidation or similar event shall
(unless otherwise permitted by the provisions of Section 6.3 below) be stamped
or otherwise imprinted with a legend in the following form (in addition to any
legend required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL
REASONABLY ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER IS
EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF
SAID ACT.
<PAGE>
<PAGE>
Purchaser consents to the Company making a notation on its records and
giving instructions to any transfer agent of the Shares in order to implement
the restrictions on transfer established in this Section 6.
C. NOTICE OF PROPOSED TRANSFERS. The holder of each certificate
representing Restricted Securities by acceptance thereof agrees to comply in all
respects with the provisions of this Section 6.3. Prior to any proposed sale,
assignment, transfer or pledge of any Restricted Securities (other than a
transfer not involving a change in beneficial ownership), unless there is in
effect a registration statement under the Securities Act covering the proposed
transfer, the holder thereof shall give written notice to the Company of such
holder's intention to effect such transfer, sale, assignment or pledge. Each
such notice shall describe the manner and circumstances of the proposed
transfer, sale, assignment or pledge in sufficient detail, and shall, be
accompanied, at such holder's expense, by either (i) a written opinion of legal
counsel, who shall be and whose legal opinion shall be reasonably satisfactory
to the Company, addressed to the Company, to the effect that the proposed
transfer of the Restricted Securities may be effected without registration under
the Securities Act or (ii) a "no action" letter from the staff of Commission to
the effect that the transfer of such securities without registration will not
result in a recommendation by the staff of the Commission that action be taken
with respect thereto, whereupon the holder of such Restricted Securities shall
be entitled to transfer such Restricted Securities in accordance with the terms
of the notice delivered by the holder to the Company. Each certificate
evidencing the Restricted Securities transferred as above provided shall bear,
except if such transfer is made pursuant to Rule 144 or a registration statement
under the Securities Act, the appropriate restrictive legend set forth in
Section 6.2 above, except that such certificate shall not bear such restrictive
legend if in the opinion of counsel for such holder and the Company such legend
is not required in order to establish compliance with any provision of the
Securities Act.
SECTION VII.
COVENANTS
A. HSR FILINGS. The Company and Purchaser each agrees to use its
reasonable best efforts to make promptly any filings required by the HSR Act,
and thereafter make any required
<PAGE>
<PAGE>
submission, with respect to the issuance of the Shares to Purchaser. The Company
and the Purchaser agree to share equally the HSR Act filing fee regarding the
acquisition of the Shares by the Purchaser.
B. RELATED AGREEMENTS. At the Closing, the Company and the Purchaser agree
to enter into the Registration Rights Agreement in the form attached hereto as
Exhibit A and the Investor Agreement in the form attached hereto as Exhibit B.
C. FULFILLMENT OF CLOSING CONDITIONS. The Company and the Purchaser each
agrees to use its reasonable best efforts to cause the fulfillment of the
closing conditions (to the extent, in whole or in part, within its direct or
indirect control) set forth in Sections 4 and 5 hereof.
D. NO PURCHASES, SALES OR HEDGE TRANSACTIONS. Prior to the Closing,
Purchaser agrees not to purchase or sell (or contract to purchase or sell)
shares of Common Stock or options, warrants or rights to purchase shares of
Common Stock. Purchaser also agrees not to enter into any hedge or other
transactions regarding Company securities. Nothing contained in this Section 7.4
shall prevent Purchaser from engaging in hedge or similar transactions not
involving the Company's securities.
E. OPERATIONS IN THE ORDINARY COURSE OF BUSINESS. During the period from
the date hereof until the Closing, the Company will, and will cause each of its
material subsidiaries to, conduct its operations according to its ordinary
course of business.
F. USE OF PROCEEDS. The Company agrees that the proceeds from the sale of
the Shares will be used to fund operations, to repay debt and for other matters
that arise in the ordinary course of the Company's business.
G. RIGHTS PLAN ADJUSTMENT. The Company shall not issue any shares of its
Common Stock (including, without limitation, in connection with a public
offering, a private placement, a business combination or pursuant to any then
outstanding warrants, options, rights or convertible securities or otherwise) if
such issuance would cause Purchaser and its affiliates to beneficially own less
than 15% of the then outstanding shares of the Company's Common Stock (a
"Dilution Transaction"), unless, prior thereto, it delivers to Purchaser a
certified copy of a resolution of the Board of Directors of the Company stating
that for purposes of the Rights Agreement, and upon consummation of such
Dilution Transaction, notwithstanding the provisions of the
<PAGE>
<PAGE>
last sentence of Section 2.7 of this Agreement, the ownership percentage with
respect to the Purchaser and its affiliates for purposes of the definition of
"Acquiring Person" in the Rights Agreement shall thereafter be 30% so long as
the Investor Agreement has not terminated and 35% from and after such
termination; provided, however, that such resolution may also state that if, at
any time after a Dilution Transaction, Purchaser and its affiliates sell or
otherwise transfer in one or more transactions an Excess Amount (as defined
below) of shares of Common Stock of the Company, then, the ownership percentage
with respect to the Purchaser and its affiliates for purposes of the definition
of "Acquiring Person" in the Rights Agreement shall thereafter be 15%.
As used above, "Excess Amount" means the number of shares of Common Stock
of the Company which, if sold or otherwise transferred by Purchaser immediately
preceding the Dilution Transaction, would have caused the Purchaser and its
affiliates to beneficially own less than 15% of the then outstanding shares of
the Company's Common Stock.
SECTION VIII.
MISCELLANEOUS
A. LETTER AGREEMENT EFFECTIVE. The Purchaser agrees that the terms and
conditions of the Letter Agreement dated as of June 5, 1996 between the Company
and the Purchaser shall remain effective until the Closing.
B. TERMINATION. This Agreement shall terminate automatically if the
Closing has not occurred on or prior to December 31, 1996.
C. GOVERNING LAW. This Agreement shall be governed and construed in all
respects in accordance with the laws of the State of Texas as applied to
agreements made and performed in Texas by residents of the State of Texas. The
Company and the Purchaser each hereby consents to personal jurisdiction in any
action brought with respect to this Agreement and the transactions contemplated
hereby in the United States District Court for the Southern District of Texas.
The Company and the Purchaser each also agrees that service of process may be
accomplished pursuant to the provisions of Section 8.8 hereof.
D. SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
<PAGE>
<PAGE>
E. ENTIRE AGREEMENT; AMENDMENT. This Agreement and the other documents
delivered pursuant hereto at the Closing constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof, and no party shall be liable or bound to any other party in
any manner by any warranties, representations or covenants except as
specifically set forth herein or therein. Except as expressly provided herein,
neither this Agreement nor any term hereof may be amended, waived, discharged or
terminated other than by a written instrument signed by the party against whom
enforcement of any such amendment, waiver, discharge or termination is sought.
F. PUBLICITY. Neither the Company nor Purchaser shall issue any press
release or otherwise make a public statement with respect to the transactions
contemplated by this Agreement without consulting the other party, except as may
be required by applicable law or regulation. In the event that the Closing does
not occur or it becomes evident that the Closing will not occur, Purchaser
agrees to permit the Company to publicly announce any such event prior to
Purchaser making any announcement of any such event.
G. CONFIDENTIALITY. Purchaser acknowledges and agrees that any information
or data it has acquired from the Company, not otherwise properly in the public
domain, was received in confidence. Purchaser agrees not to divulge, communicate
or disclose, except as may be required by law or for the performance of this
Agreement, or use to the detriment of the Company or for the benefit of any
other person or persons, or misuse in any way, any confidential information of
the Company.
H. NOTICES, ETC. Unless otherwise provided, any notice, request, demand or
other communication required or permitted under this Agreement shall be given in
writing and shall be deemed effectively given upon personal delivery to the
party to be notified, or when sent by telex or telecopier (with receipt
confirmed), or one business day after deposit with overnight courier or three
business days after deposit with the United States Post Office, by registered or
certified mail, postage prepaid and addressed as follows (or at such other
address as a party may designate by notice to the other):
<PAGE>
<PAGE>
If to the Company:
Imperial Holly Corporation
One Imperial Square, Suite 200
8016 Highway 90-A
Sugar Land, TX 77478
Attention: President
Telephone: (713) 490-9780
Facsimile: (713) 490-9895
with a copy to:
Baker & Botts, L.L.P.
One Shell Plaza
910 Louisiana
Houston, TX 77002-4995
Attention: J. David Kirkland, Jr.
Telephone: (713) 229-1101
Facsimile: (713) 229-1522
If to the Investor:
Greencore Group plc
St. Stephens Green House
Earlsforth Terrace
Dublin 2, Ireland
Attention: Chief Executive Officer
Telephone: 011-3531-605-1000
Facsimile: 011-3531-605-1101
with a copy to:
Weil, Gotshal & Manges LLP
700 Louisiana, Suite 1600
Houston, TX 77002
Attention: Steven D. Rubin
Telephone: (713) 546-5030
Facsimile: (713) 224-9511
I. SEVERABILITY. In the event that any provision of this Agreement becomes
or is declared by a court of competent jurisdiction to be illegal, invalid,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision. In such event, the parties shall negotiate, in good
faith, a legal, valid and enforceable substitute provision which most nearly
effects the intent of the parties in entering into this Agreement.
<PAGE>
<PAGE>
J. TITLES AND SUBTITLES. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
K. FACSIMILE SIGNATURES. Any signature page delivered by a fax machine or
telecopy machine shall be binding to the same extent as an original signature
page, with regard to any agreement subject to the terms hereof or any amendment
thereto. Any party who delivers such a signature page agrees to later deliver an
original counterpart to any party which requests it.
L. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
<PAGE>
<PAGE>
The foregoing agreement is hereby executed as of the date first above
written.
IMPERIAL HOLLY CORPORATION
a Texas corporation
By: /s/ James C. Kempner
Title: President & CEO
GREENCORE GROUP PLC
By: /s/ David Dilger
Title: Director
EARLSFORT HOLDINGS B.V.
By: /s/ Kevin O'Sullivan
Title: Director
Stock Purchase Agreement Signature Page
<PAGE>
<PAGE>
EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is entered
into effective as of _____________, 1996 by and among IMPERIAL HOLLY
CORPORATION, a Texas corporation (the "Company") and GREENCORE GROUP PLC and
EARLSFORT HOLDINGS B.V. (collectively, the "Investor").
RECITALS
WHEREAS, the Company and Investor are parties to that certain Stock
Purchase Agreement dated as of July 25, 1996 (the "Purchase Agreement")
providing for the issuance and sale by the Company and the purchase by the
Investor of shares of the Company's Common Stock, without par value (the "Common
Stock");
WHEREAS, the sale of the Common Stock to Investor is conditioned
upon granting the rights set forth herein to Investor;
NOW, THEREFORE, in consideration of the foregoing, the parties agree
as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the meanings indicated:
"Advice" shall have the meaning given it in Section 5
hereof.
"Affiliate" of an Investor shall mean any Person controlling, controlled
by or under common control with Investor. As used in this definition, the term
"control," including the correlative terms "controlling," "controlled by" and
"under common control with," shall mean possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies
(whether through ownership of securities or any partnership or other ownership
interest, by contract or otherwise) of a Person.
"Commission" shall mean the Securities and Exchange Commission or any
other Federal agency then administering the Securities Act and other Federal
securities laws.
"Demand Registration" shall have the meaning given it in Section 3 hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
<PAGE>
<PAGE>
"Holder" shall mean any Person holding Registrable Securities.
"Other Holders" shall mean holders of the Company's securities, other than
Investor, proposing to distribute securities pursuant to a registration under
this Agreement.
"Person" shall mean any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or a political subdivision, agency or
instrumentality thereof or other entity or organization of any kind.
"Piggy-back Registration" shall have the meaning given it in
Section 2(a) hereof.
"Registrable Securities" shall mean (i) the Common Stock issued to
Investor pursuant to the Purchase Agreement and (ii) any securities issued in
exchange for, as a dividend on, or in replacement of, or otherwise issued or
distributed in respect of (including securities issued in a stock dividend,
split or recombination or pursuant to the exercise of preemptive rights, if
any), any shares of Common Stock referred to in clause (i) above; provided,
however, that any securities described in clause (i) or (ii) above shall cease
to be Registrable Securities when and to the extent that such securities have
been (A) distributed to the public pursuant to a registration statement covering
such securities that has been declared effective under the Securities Act, (B)
distributed in accordance with the provisions of Rule 144 (or any similar
provision then in force) under the Securities Act, (C) transferred to any Person
in a manner such that such securities are deemed to cease being Registrable
Securities pursuant to the provisions of Sections 11(i) and (k) of this
Agreement, or (D) repurchased by the Company.
"Registration Expenses" shall have the meaning given it in Section 6
hereof.
"Securities Act" shall mean the Securities Act of 1933, as amended.
2. PIGGY-BACK REGISTRATION RIGHTS.
(a) At any time after the date hereof, if the Company proposes to file a
registration statement under the Securities Act with the Commission with respect
to an offering by the Company for its own account or for the account of any
other Person of any Common Stock to be issued for cash pursuant to a
<PAGE>
<PAGE>
firm commitment underwriting (other than as set forth in Section 2(b) below),
then the Company shall in each case give written notice of such proposed filing
to Holders at least 20 days before the initial filing date with the Commission
of such registration statement, which notice shall set forth the intended method
of distribution of the Common Stock proposed to be registered by the Company.
The notice shall offer each Holder the opportunity to register such number of
Registrable Securities as such Holder may request (a "Piggy-back Registration").
Notwithstanding the foregoing, if any managing underwriter of such offering
advises the Company in writing that marketing factors require a limitation on
the number of shares to be underwritten, then the amount of Registrable
Securities to be offered for the accounts of Holders and Other Holders shall be
reduced in inverse order of the priority of registration rights held by holders
of securities requesting inclusion therein to the extent necessary, in the
opinion of such managing underwriter, to reduce the total amount of securities
to be included in such offering to the amount recommended by such managing
underwriter; provided, however, that the reduction imposed upon Holders shall
not be greater, on a percentage basis with respect to the Registrable Securities
requested to be included, than the reduction imposed upon Other Holders with
respect to the amount of securities requested for inclusion in such
registration.
(b) Notwithstanding anything to the contrary contained in this Agreement,
the Company shall not be required to include Registrable Securities in any
registration statement if the proposed registration is (i) a registration of a
stock option or other employee incentive compensation or employee benefit plan
or of securities issued or issuable pursuant to any such plan, or a registration
statement relating to warrants, options or shares of capital stock granted or to
be granted or sold primarily to employees, directors or officers of the Company,
(ii) a registration of securities issued or issuable pursuant to a stockholder
reinvestment plan or other similar plan, (iii) a registration of securities
issued in exchange for any securities or any assets of, or in connection with a
merger or consolidation with, an unaffiliated company, (iv) a registration of
securities pursuant to a "rights" or other similar plan designed to protect the
Company's stockholders from a coercive or other attempt to cause a change in
control of the Company, (v) a registration of securities filed pursuant to Rule
145 under the Securities Act or any successor rule, (vi) a registration of
preferred stock or securities issued in connection with any debt or preferred
stock financing of the Company or (vii) a registration filed in connection with
an exchange offer or an offering of securities solely to the Company's existing
shareholders.
<PAGE>
<PAGE>
(c) The Company may withdraw any registration statement and abandon any
proposed offering initiated by the Company or any other Person without the
consent of any Holder, notwithstanding the request of Holders to participate
therein in accordance with this provision, if the Company determines to do so in
its sole discretion.
3. DEMAND REGISTRATION RIGHTS.
(a) At any time after the earlier of (i) December 31, 1998 or (ii) the
time at which the transfer restrictions set forth in Section 3 in the Investor
Agreement terminate, any Holder may request in writing (a "Demand Request") that
the Company file a registration statement under the Securities Act covering the
registration at least 35% of the shares of Registrable Securities then
outstanding (a "Demand Registration") to be sold pursuant to a firm commitment
public offering for cash. Upon receipt by the Company of any such Demand
Request, the Company shall promptly, but in any event within 10 business days,
give written notice thereof (the "Demand Registration Notice") to each Holder of
Registrable Securities inquiring whether each such Holder desires to include all
or any portion of its Registrable Securities in a Demand Registration. The
Company shall use its best efforts (including the filing of an appropriate
registration statement within 60 days after receiving a Demand Request) to
effect as soon as practicable the registration under the Securities Act in
accordance with Section 5 hereof of all shares of Registrable Securities covered
by the Demand Request and all other Registrable Securities which the Company has
been requested to register by the Holders thereof by written request given to
the Company within 20 days after delivery of the Demand Registration Notice;
provided, however, that the Company shall be obligated to effect only two Demand
Registrations pursuant to this Section 3. In connection with a Demand
Registration, the Holders of a majority of the Registrable Securities to be
included in the registration, in their sole discretion, shall determine whether
(a) to proceed with, withdraw from or terminate such offering, (b) to select,
subject to the reasonable approval of the Company, a managing underwriter or
underwriters in connection with such offering, (c) to enter into an underwriting
agreement for such offering, and (d) to take such actions as may be necessary to
close the sale of Registrable Securities contemplated by such offering,
including, without limitation, waiving any conditions to closing such sale that
may not have been fulfilled. In the event Holders exercise their discretion
under this Section 3(a) to terminate a proposed Demand Registration, the
terminated Demand Registration shall constitute a Demand Registration under this
Section 3, unless the
<PAGE>
<PAGE>
determination to terminate such Demand Registration (i) follows the exercise by
the Company of any of its rights provided by Section 3(b) or (c) or (ii) results
from a material adverse change in the financial condition, results of operations
or business of the Company.
(b) Notwithstanding the provisions of Section 3(a), if the Company shall
furnish to the Holders requesting to include Registrable Securities in the
registration a certificate signed by the President of the Company stating that
in the good faith judgment of the Company, it would be detrimental to the
Company and its shareholders for such registration statement to be filed or to
become effective and it is therefore beneficial to defer the filing or
effectiveness of such registration statement, the Company shall have the right
to defer such filing or effectiveness for a period of not more than 90 days. The
Company shall promptly give notice to the Holder at the end of any delay period
under this Section 3(b).
(c) Notwithstanding the foregoing provisions of this Section 3, if at the
time of any request by a Holder for a Demand Registration, the Company has plans
to file within 90 days after such request for the sale of any of its securities
in a public offering under the Securities Act, no Demand Registration shall be
initiated under this Section 3 until 90 days after the effective date of such
registration unless the Company is no longer using its reasonable best efforts
to effect such registration; provided, however, that the Company shall provide
the holders of Registrable Securities the right to participate in such public
offering pursuant to, and subject to, the provisions of Section 2 hereof, if
applicable.
4. HOLDBACK AGREEMENTS; REQUIREMENTS OF HOLDERS.
(a) Restrictions on Public Sale by Holders of Registrable Securities. To
the extent not inconsistent with applicable law, Holders agree not to effect any
public sale or other distribution of equity securities of the Company (or any
securities convertible into or exchangeable or exercisable for equity securities
of the Company) during the period beginning on the effective date of a
registration statement filed by the Company with the Commission and ending 90
days after the date of the final prospectus with respect thereto (except for
securities that may be included in such registration pursuant to the provisions
hereof or otherwise), but only if and to the extent requested in writing by the
Company or, in the case of an underwritten public offering, the managing
underwriter or underwriters. The Company
<PAGE>
<PAGE>
agrees to be bound by similar restrictions in the event of an underwritten
public offering pursuant to Section 3 hereof.
(b) Cooperation by Holders. The offering of Registrable Securities by
Holders shall comply in all respects with the applicable terms, provisions and
requirements set forth in this Agreement, and each Holder shall timely provide
the Company with all information and materials required to be included in a
registration statement that relate to such Holder, and to take all such action
as may be reasonably required in order not to delay the registration and
offering of the securities by the Company. The Company shall have no obligation
to include in such registration statement shares of a Holder if such Holder has
failed to furnish such information which, in the opinion of counsel to the
Company, is required in order for the registration statement to be in compliance
with the Securities Act.
5. REGISTRATION PROCEDURES. Whenever any Registrable Securities are to be
registered pursuant to Section 2 (including the Company's rights under Section
2(c)) or 3 of this Agreement, the Company will use its reasonable best efforts
to effect the registration of such Registrable Securities as contemplated by
such Section. In connection with any Piggy-back Registration or Demand
Registration, the Company will, subject to Section 2 or 3 hereof (as
applicable):
(a) prepare and file with the Commission a registration statement which
includes the Registrable Securities and use its reasonable best efforts to cause
such registration statement to become effective;
(b) prepare and file with the Commission such amendments and
post-effective amendments to the registration statement, and such supplements to
the related prospectus, as may be necessary to keep the registration statement
effective for a period of at least 270 days (or such shorter period during which
Holders shall have sold all Registrable Securities requested to be registered)
and to appropriately reflect the plan of distribution of the securities
registered thereunder and/or as shall be necessary so that neither such
registration statement nor the related prospectus shall contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and so
that such registration statement and the related prospectus will otherwise
comply with applicable legal requirements; and comply with the provisions of the
Securities Act applicable to it with respect to the disposition of all
securities covered by such registration statement during the applicable period;
<PAGE>
<PAGE>
(c) furnish to the Holders of Registrable Securities included in such
registration statement and the underwriter or underwriters thereof, if any,
without charge, such number of conformed copies of the registration statement
and any post-effective amendment thereto and such number of copies of the
prospectus (including each preliminary prospectus) and any amendments or
supplements thereto, and any documents incorporated by reference therein, as
Holders or underwriter may reasonably request in order to facilitate the
disposition of the Registrable Securities being sold by Holders (it being
understood that the Company consents to the use of the prospectus and any
amendment or supplement thereto by Holders of Registrable Securities covered by
the registration statement and the underwriter or underwriters thereof, if any,
in connection with the offering and sale of the Registrable Securities covered
by the prospectus or any amendment or supplement thereto);
(d) notify the Holders of Registrable Securities included in such
registration statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, when the Company becomes
aware of the happening of any event as a result of which the prospectus included
in such registration statement (as then in effect) contains any untrue statement
of a material fact or omits to state a material fact necessary to make the
statements therein (in the case of the prospectus or any preliminary prospectus,
in light of the circumstances under which they were made) not misleading and, as
promptly as practicable thereafter and in any event, within 15 days after such
notice, prepare and file with the Commission and furnish a supplement or
amendment to such prospectus (which may include a document filed pursuant to the
Exchange Act that is incorporated by reference therein) so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus will
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading;
(e) otherwise comply with all applicable rules and regulations of the
Commission and make generally available to its security holders an earnings
statement satisfying the provisions of Section 11(a) of the Securities Act no
later than 100 days after the end of the 12-month period beginning with the
first day of the Company's first fiscal quarter commencing after the effective
date of the registration statement, which earnings statement shall cover said
12-month period, which requirement will be deemed to be satisfied if the Company
complies with Rule 158 under the Securities Act.
<PAGE>
<PAGE>
(f) as promptly as practicable after filing with the Commission of any
document which is incorporated by reference into a registration statement,
deliver a copy of such document to Holders of Registrable Securities covered by
such registration statement if the Holders requests such document;
(g) on or prior to the date on which the registration statement is
declared effective, use reasonable best efforts to register or qualify, and
cooperate with the Holders of Registrable Securities included in such
registration statement, the underwriter or underwriters thereof, if any, and
their counsel, in connection with the registration or qualification of the
Registrable Securities covered by the registration statement for offer and sale
under the securities or blue sky laws of each state and other jurisdiction of
the United States as the Holders or underwriter reasonably requests in writing,
to use its reasonable best efforts to keep each such registration or
qualification effective, including through new filings, or amendments or
renewals, during the period such registration statement is required to be kept
effective and to do any and all other acts or things necessary or advisable to
enable the disposition in all such jurisdictions of the Registrable Securities
covered by the applicable registration statement; provided, that the Company
will not be required to qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this Section 5(g),
to take any action which would subject it to general service of process or
taxation in any such jurisdiction where it is not then so subject;
(h) cooperate with the Holders of Registrable Securities covered by the
registration statement and the managing underwriter or underwriters thereof, if
any, to facilitate the timely preparation and delivery of certificates (not
bearing any restrictive legends) representing securities to be sold under the
registration statement, and enable such securities to be in such denominations
and registered in such names as the managing underwriter or underwriters, if
any, or Holders may request, subject to the underwriters' obligation to return
any certificates representing securities not sold;
(i) enter into such customary agreements (including an underwriting
agreement in customary form) and take all reasonable actions as may be
appropriate in the judgment of the Company in order to facilitate the
disposition of such Registrable Securities;
<PAGE>
<PAGE>
(j) make available for inspection by Holders of Registrable Securities
included in such registration statement, any underwriter participating in any
disposition pursuant to such registration statement, and any attorney,
accountant or other agent retained by any such seller or underwriter
(collectively, the "Inspectors"), all financial and other records, pertinent
corporate documents and properties of the Company and subsidiaries
(collectively, the "Records"), as shall be reasonably necessary to enable them
to exercise their due diligence responsibilities, and cause the Company's
officers, directors and employees to supply all Records reasonably requested by
any such Inspector in connection with such registration statement; provided,
that with respect to any Records that are confidential, the Inspectors shall
execute such confidentiality agreements as the Company may reasonably request in
order to ensure that the confidentiality of confidential Records will be
maintained; and
(k) if requested by Holders of Registered Securities covered by the
Registration, use its best efforts to furnish to underwriters for Holders a
"comfort" or "special procedures" letter (to the extent permitted by the
standards of the AICPA or other relevant authorities) signed by the independent
public accountants who have audited the Company's financial statements included
in such registration statement, covering the matters customarily covered in
accounts' letters delivered in connection with such registration statement.
Holders, upon receipt of any notice from the Company of the happening of
any event of the kind described in Section 5(d), will forthwith discontinue
disposition of the Registrable Securities until Holders' receipt of the copies
of the supplemented or amended prospectus contemplated by Section 5(d) or until
it is advised in writing (the "Advice") by the Company that the use of the
prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the prospectus, and,
if so directed by the Company, such Holder will, or will request the managing
underwriter or underwriters of such Registrable Securities, if any, to deliver
to the Company (at the Company's expense) all copies in their possession or
control, other than permanent file copies then in such Holder's possession, of
the prospectus covering such Registrable Securities current at the time of
receipt of such notice.
<PAGE>
<PAGE>
6. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or compliance
with this Agreement, including, without limitation, all Commission and
securities exchange or National Association of Securities Dealers, Inc.
registration and filing fees, all fees and reasonable expenses incurred in
connection with compliance with state or other securities or blue sky laws and
compliance with the rules of the NASD (including fees and disbursements of
counsel in connection with state or other securities or blue sky qualifications
of the Registrable Securities), rating agency fees, printing expenses, messenger
and delivery expenses, internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the fees and expenses incurred in connection with the
listing of the securities to be registered on each securities exchange on which
similar securities issued by the Company are then listed and fees and
disbursements of counsel for the Company and its independent certified public
accountants (including the expenses of any special audit or "comfort" or special
procedures letters required by or incident to such performance), the reasonable
fees and expenses of one counsel for the Holders, securities act liability
insurance (if the Company elects to obtain such insurance), and the fees and
expenses of any special experts retained by the Company in connection with such
registration, excluding any underwriting fees, discounts or commissions
attributable to the sale of Registrable Securities (all such expenses being
herein called "Registration Expenses"), will be borne by the Company.
(b) Notwithstanding anything herein to the contrary, each Holder shall pay
such portion of the Registration Expenses as may be required by applicable law
but Holder is entitled to reimbursement from the Company for such Registration
Expenses if not prohibited by applicable law.
7. INDEMNIFICATION; CONTRIBUTION.
(a) Indemnification by the Company. The Company will, and hereby does,
indemnify and hold harmless, with respect to any registration statement filed by
it, to the full extent permitted by law, the Holders who sells Registrable
Securities covered by such registration statement, its officers, directors,
employees, agents and general or limited partners (and the directors, officers,
employees and agents thereof) and each other Person, if any, who controls such
Holder within the meaning of the Securities Act (collectively, the "Holder
Indemnitees") against all losses, claims, damages, liabilities and expenses,
joint or
<PAGE>
<PAGE>
several (including reasonable fees of counsel and any amounts paid in settlement
effected with the Company's consent), to which any such Holder Indemnitee may
become subject under the Securities Act, at common law or otherwise, insofar as
such losses, claims, damages, liabilities or expenses (or actions, suits,
investigations or proceedings, whether commenced or threatened, in respect
thereof) are caused by (i) any untrue statement or alleged untrue statement of a
material fact contained in any registration statement in which such Registrable
Securities were included as contemplated hereby or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading or, (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary, final or summary prospectus, together with the documents
incorporated by reference therein (as amended or supplemented if the Company
shall have filed with the Commission any amendment thereof or supplement
thereto), or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements
therein in the light of the circumstances under which they were made not
misleading; and in each such case the Company will reimburse each such Holder
Indemnitee for any reasonable legal or any other expenses incurred by any of
them in connection with investigating or defending any such loss, claim, damage,
liability, expense, action, suit, investigation or proceeding; provided, that
the Company shall not be liable to any such Holder Indemnitee in any such case
to the extent that any such loss, claim, damage, liability or expense (or
action, suit, investigation or proceeding, whether commenced or threatened, in
respect thereof) arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in such registration
statement or amendment thereof or supplement thereto, or in any such
preliminary, final or summary prospectus, in reliance upon and in conformity
with written information furnished to the Company by or on behalf of any such
Holder Indemnitee for use in the preparation thereof; and provided, further,
that the Company shall not be liable to any such Holder Indemnitee with respect
to any preliminary prospectus to the extent that any such loss, claim, damage,
liability or expense of such Holder Indemnitee results from the fact that such
Holder Indemnitee (or any underwriter therefore) sold Registrable Securities to
a person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the prospectus (excluding documents
incorporated by reference) or of the prospectus as then amended or supplemented
(excluding documents incorporated by reference) if the Company has previously
furnished copies thereof in compliance with Section 5
<PAGE>
<PAGE>
of this Agreement and the loss, claim, damage, liability or expense of such
Holder Indemnitee results from an untrue statement or omission of a material
fact contained in such preliminary prospectus which was corrected in the
prospectus (or the prospectus as amended or supplemented). Such indemnity and
reimbursement of expenses shall remain in full force and effect regardless of
any investigation made by or on behalf of such Holder Indemnitee or any of the
prospective sellers or any of their respective directors, officers, employees,
agents, general or limited partners or controlling Persons and shall survive the
transfer of such securities by such Holder.
(b) Indemnification by Holder. The Holder whose Registrable Securities are
included in any registration statement hereunder will and hereby does indemnify
and hold harmless, to the fullest extent permitted by law, the Company, its
directors, officers, employees and agents and each Person who controls the
Company (within the meaning of the Securities Act) (collectively, the "Company
Indemnitees") against all losses, claims, damages, liabilities and expenses
(including reasonable fees of counsel and any amounts paid in settlement
effected with Holder's consent) to which any Company Indemnitee may become
subject under the Securities Act, at common law or otherwise insofar as such
losses, claims, damages, liabilities or expenses (or actions, suits,
investigations or proceedings, whether commenced or threatened, in respect
thereof) are caused by (i) any untrue statement or alleged untrue statement of a
material fact contained in any registration statement in which Holder's
Registrable Securities were included or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, (ii) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary, final or
summary prospectus, together with the documents incorporated by reference
therein (as amended or supplemented if the Company shall have filed with the
Commission any amendment thereof or supplement thereto), or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein in the light of the
circumstances under which they were made not misleading to the extent, but only
to the extent, in the cases described in clauses (i) and (ii), that such untrue
statement or omission is contained in any information furnished in writing by
that Holder for use in the preparation thereof and (iii) with respect to any
preliminary prospectus, the fact that Holder (or any underwriter therefor) sold
Registrable Securities to a person to whom there was not sent or given, at or
prior to the written confirmation of such sale, a copy of the prospectus
(excluding documents incorporated
<PAGE>
<PAGE>
by reference) or of the prospectus as then amended or supplemented (excluding
documents incorporated by reference) if (A) the Company has previously furnished
copies thereof in compliance with Section 5 of this Agreement and (B) the loss,
claim, damage, liability or expense of such Company Indemnitee results from an
untrue statement or omission of a material fact contained in such preliminary
prospectus which was corrected in the prospectus (or the prospectus as amended
or supplemented). Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Company (except as
provided above) or any of the prospective sellers or any of their respective
directors, officers, employees, agents, general or limited partners or
controlling Persons and shall survive the transfer of such securities by such
Holder.
(c) Conduct of Indemnification Proceeding. Promptly after receipt by an
indemnified party under Section 7(a) or 7(b) above of written notice of the
commencement of any action, suit, proceeding, investigation or threat thereof
made in writing with respect to which a claim for indemnification may be made
pursuant to this Section 7, such indemnified party shall, if a claim in respect
thereto is to be made against an indemnifying party, give written notice to the
indemnifying party of the threat or commencement thereof, but the failure so to
notify the indemnifying party shall not relieve it from any liability which it
may have to any indemnified party except to the extent that the indemnifying
party is actually prejudiced by such failure to give notice. In case any such
claim, action, suit, proceeding or investigation referred to under Section 7(a)
or 7(b) shall be brought against any indemnified party and it shall notify the
indemnifying party of the threat or commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party.
After notice from the indemnifying party to such indemnified party of its
election so to assume the defense of any such claim, action, suit, proceeding or
investigation, the indemnifying party shall not be liable to such indemnified
party under this Section 7 for any legal expenses of counsel or any other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof unless the indemnifying party has failed to assume the defense
of such claim, action, suit, proceeding or investigation or to employ counsel
reasonably satisfactory to such indemnified party. Each indemnified party shall
have the right to employ separate counsel to represent it and assume its defense
(in which case the indemnifying party shall not represent it) if, upon the
advice of counsel, the
<PAGE>
<PAGE>
representation of both parties by the same counsel would be inappropriate due to
actual or potential conflicts of interests between them and in which case the
reasonable fees and expenses of one separate counsel for the indemnified party
shall be paid by the indemnifying party. The indemnifying party shall not be
required to indemnify the indemnified party with respect to any amounts paid in
settlement of any claim, action, suit, proceeding or investigation entered into
without the written consent of the indemnifying party. No indemnifying party
will consent to the entry of any judgment or enter into any settlement without
the consent of the indemnified party, unless (i) such judgment or settlement
does not impose any obligation or liability upon the indemnified party other
than the execution, delivery or approval thereof, and (ii) such judgment or
settlement includes as an unconditional term thereof the giving by the claimant
or plaintiff to such indemnified party of a release from all liability in
respect of such claim for all persons that may be entitled to or obligated to
provide indemnification or contribution under this Section 7.
(d) Additional Indemnification. Indemnification similar to that specified
in the preceding subsections of this Section 7 (with appropriate modifications)
shall be given by the Company and each seller of Registrable Securities with
respect to any required registration or other qualification of securities under
any state securities or blue sky laws.
(e) Contribution. If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 7(a) or 7(b) above, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of the losses,
claims, damages, liabilities or expenses (or actions, suits, investigations or
proceedings in respect thereof) referred to in Section 7(a) or 7(b) (as
applicable) in such proportion as is appropriate to reflect the relative fault
of the indemnifying party on the one hand and of the indemnified party on the
other in connection with the statements, omissions, actions or inactions that
resulted in such losses, claims, damages, liabilities or expenses. The relative
fault of the indemnifying party and of the indemnified party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the indemnifying party or by
the indemnifying party, any action or inaction by any such party and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement, omission, action or inaction.
<PAGE>
<PAGE>
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or expenses (or actions, suits, investigations or
proceedings in respect thereof) referred to above in this Section 7(e) shall be
deemed to include any reasonable legal or other expenses incurred by such
indemnified party in connection with investigating or defending any such action,
suit, proceeding, investigation or claim (which shall be limited as provided in
Section 7(c) if the indemnifying party has assumed the defense of any such
action, suit, proceeding, investigation or claim in accordance with the
provisions thereof) that is the subject of this Section 7(e). No person guilty
of fraudulent misrepresentation within the meaning of Section 11(f) of the
Securities Act shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. Promptly after receipt by an
indemnified party under this Section 7(e) of written notice of the commencement
of any action, suit, proceeding, investigation or threat thereof made in writing
with respect to which a claim for contribution may be made against an
indemnifying party under this Section 7(e), such indemnified party shall, if a
claim for contribution in respect thereto is to be made against an indemnifying
party, give written notice to the indemnifying party in writing of the
commencement thereof (if the notice specified in Section 7(c) has not been given
with respect to such action); but the failure to so notify the indemnifying
party shall not relieve it from any obligation to provide contribution that it
may have to any indemnified party under this Section 7(e) except to the extent
that the indemnifying party is actually prejudiced by the failure to give
notice. Notwithstanding anything in this Section 7(e) to the contrary, no
indemnifying party shall be required pursuant to this Section 7(e) to contribute
any amount that exceeds the amount by which the dollar amount of the proceeds
received by such indemnifying party from the sale of Registrable Securities and
other securities of the Company (after deducting any underwriting commissions,
discounts and transfer taxes applicable thereto) in the offering to which the
losses, claims, damages, liabilities or expenses of the indemnified parties
relate exceeds the amount of any losses, claims, damages, liabilities and
expenses that such indemnifying party has otherwise been required to pay as
indemnity or contribution hereunder by reason of such losses, claims, damages,
liabilities or expenses.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7(e) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
<PAGE>
<PAGE>
If indemnification is available under this Section 7, the indemnifying
partes shall indemnify each indemnified party to the full extent provided in
Sections 7(a) and (b) without regard to the relative fault of said indemnifying
party or indemnified party or any other equitable consideration provided for in
this Section 7(e). The provisions of this Section 7(e) shall be in addition to
any other rights to indemnification or contribution that any indemnified party
may have pursuant to law or contract and shall remain in full force and effect
regardless of any investigation made by or on behalf of any indemnified party
and shall survive the transfer of securities by any such party.
(f) Indemnification and Contribution of Underwriters. In connection with
any underwritten offering contemplated by this Agreement that includes
Registrable Securities, the Company and all sellers of Registrable Securities
included in any registration statement will agree to customary provisions for
indemnification and contribution (consistent with the other provisions of this
Section 7, except as may be otherwise agreed in writing by the Company and such
sellers) in respect of losses, claims, damages, liabilities and expenses of the
underwriters of such offering.
8. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. Holders may not
participate in any underwritten registration hereunder unless such Holder (a)
agrees to sell Holder's securities on the terms of and on the basis provided in
any underwriting arrangements approved by the Company and (b) completes and
executes all questionnaires, powers of attorney, custody agreements,
indemnities, underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangements.
9. RULE 144. The Company covenants that it will file the reports required
to be filed by it under the Securities Act and the Exchange Act and the rules
and regulations adopted by the Commission thereunder from time to time in order
to enable such Holder to sell Registrable Securities without registration under
the Securities Act within the limitation of the exemptions provided by (a) Rule
144 under the Securities Act, as such Rule may be amended from time to time, or
(b) any similar rule or regulation hereafter adopted by the Commission. Upon the
request of any Holder, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements.
<PAGE>
<PAGE>
11. MISCELLANEOUS.
(a) Recapitalizations, Exchanges, etc. The provisions of this Agreement
shall apply, to the full extent set forth herein with respect to the Registrable
Securities, to any and all shares of equity capital or other securities of the
Company or any successor or assign of the Company (whether by merger,
consolidation, sale of assets or otherwise) that may be issued in respect of, in
exchange for, or in substitution of the Registrable Securities, in each case as
the amounts of such securities outstanding are appropriately adjusted for any
equity dividends, splits, reverse splits, combinations, recapitalizations and
the like occurring after the date of this Agreement.
(b) Notices. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when personally delivered or when mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed (i) if to Company, to: Imperial Holly Corporation, One Imperial
Square, Suite 200, 8016 Highway 90-A, Sugar Land, TX 77478, Attention: President
(with a copy to Baker & Botts, L.L.P., 3000 One Shell Plaza, Houston, Texas
77002, Attention: J. David Kirkland), (ii) if to Holder at Holder's address as
shown on the stock transfer records of the Company (with a copy to Weil, Gotshal
& Manges LLP, 700 Louisiana, Suite 1600, Houston, Texas 77002, Attention: Steven
D. Rubin), or to such other address (as to a Holder) as such Holder may furnish
to the Company, or (as to the Company) as the Company may furnish to the Holder
except that notices of changes of address shall be effective only upon receipt.
(c) Applicable Law. This contract is entered into under, and shall be
construed in accordance with and governed for all purposes by, the laws of the
State of Texas without regard to any principles of conflict of laws that, if
applied, might permit or require the application of the laws of a different
jurisdiction. The Company and the Investor each hereby consents to personal
jurisdiction in any action brought with respect to this Agreement and the
transactions contemplated hereby in the United States District Court for the
Southern District of Texas ("Southern District"). The Company and the Investor
each also agrees that service of process may be accomplished pursuant to the
provisions of Section 11(b) hereof.
(d) Amendment and Waiver. This Agreement may be amended, and the
provisions hereof may be waived, only by a written instrument signed by the
Company and Holders of a majority of the Registrable Securities then
outstanding. No failure by either
<PAGE>
<PAGE>
party hereto at any time to give notice of any breach by the other party of, or
to require compliance with, any condition or provision of this Agreement shall
be deemed a waiver of similar or dissimilar provisions or conditions at the same
or at any prior or subsequent time.
(e) Remedy. The parties agree that in the event there is any breach or
asserted breach of the terms, covenants or conditions of this Agreement, the
remedy of the parties hereto shall be in law and in equity and injunctive relief
shall lie for the enforcement of or relief from any provisions of this
Agreement. If any remedy or relief is sought and obtained by any party against
one of the other parties pursuant to this Section 11(e), the other party shall,
in addition to the remedy of relief so obtained, be liable to the party seeking
such remedy or relief for the reasonable expenses incurred by such party in
successfully obtaining such remedy or relief, including the fees and expenses of
such party's counsel.
(f) Severability. It is a desire and intent of the parties that the terms,
provisions, covenants and remedies contained in this Agreement shall be
enforceable to the fullest extent permitted by law. If any such term, provision,
covenant or remedy of this Agreement or the application thereof to any Person or
circumstances shall, to any extent, be construed to be invalid or unenforceable
in whole or in part, then such term, provision, covenant or remedy shall be
construed in a manner so as to permit its enforceability under the applicable
law to the fullest extent permitted by law. In any case, the remaining
provisions of this Agreement or the application thereof to any Person or
circumstances other than those to which they have been held invalid or
unenforceable shall remain in full force and effect.
(g) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same agreement.
(h) Headings; Use of Certain Terms. The section and paragraph headings in
this Agreement have been inserted for purposes of convenience of reference only
and shall not be used for interpretive purposes. As used in this Agreement, the
words "herein", "hereof", and "hereunder" and other words of similar import
refer to this Agreement as a whole and not to any particular paragraph,
subparagraph, section, subsection, or other subdivision. Whenever the context
may require, any pronoun used in this Agreement shall include the corresponding
masculine,
<PAGE>
<PAGE>
feminine or neuter forms, and the singular form of nouns, pronouns and verbs
shall include the plural and vice versa.
(i) Binding Effect; Transfer of Rights Under this Agreement. Unless
otherwise provided herein, the provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
legal representatives, successors and permitted assigns, and is not intended to
confer upon any other Person any right or remedies hereunder; provided, however,
that the rights and obligations of Holder under this Agreement may be
transferred or assigned by a Holder only to one or more transferees to whom, in
the aggregate, all of such Holder's Registrable Securities are transferred and
only if such transferees shall, in connection with the transfer of such
Registrable Securities, provide the Company with a duly executed addendum to
this Agreement, in form and substance reasonably satisfactory to the Company,
pursuant to which such transferee expressly and without qualification (A)
assumes all of the obligations of its transferor hereunder and (B) agrees itself
to be bound by the terms hereof; provided, further, that any such transfer shall
not operate to release the transferring Holder from any of its obligations
hereunder existing on the date of such transfer. In the event any Registrable
Securities are transferred to a person who does not provide the addendum
referred to above in this Section 11(i), such Registrable Securities shall be
deemed to have ceased to be Registrable Securities effective upon such transfer.
(j) Effectiveness; Entire Agreement. This agreement shall become effective
immediately upon the closing of the Purchase Agreement. This Agreement together
with the Standstill Agreement is intended by the parties as a final expression
of their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
(k) Termination. The right of Holder to effect registration of its
Registrable Securities pursuant to Section 2 or 3 hereof shall terminate at such
time as all Registrable Securities held by such Holder can be sold pursuant to
Rule 144 of the Securities Act in a single three-month period.
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
IMPERIAL HOLLY CORPORATION
a Texas corporation
By:
Name:
Title:
GREENCORE GROUP PLC
By:
Name:
Title:
EARLSFORT HOLDINGS B.V.
By:
Name:
Title:
<PAGE>
<PAGE>
EXHIBIT B
IMPERIAL HOLLY CORPORATION
INVESTOR AGREEMENT
_______________, 1996
<PAGE>
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1 CERTAIN DEFINITIONS..............................................1
SECTION 2 STOCKHOLDER ACTIVITIES...........................................2
2.1 Certain Agreements...............................................2
2.2 Suspension.......................................................3
2.3 Obligation to Request Securities from the Company................3
SECTION 3 RESTRICTIONS ON TRANSFER.........................................4
3.1 Transfer Restrictions............................................4
3.2 Market Standoff..................................................5
3.3 Stop Transfer Order..............................................5
3.4 Legend...........................................................5
SECTION 4 RIGHT OF FIRST REFUSAL...........................................6
4.1 Right of First Refusal...........................................6
4.2 Assignment of Right of First Refusal. ..........................7
SECTION 5 RIGHT OF FIRST OFFER.............................................7
5.1 Investor Offers..................................................7
5.2 Acceptance of Offer..............................................8
5.3 Closing..........................................................8
5.4 Limitation of Rights.............................................8
5.5 Assignment of Right of First Offer...............................8
SECTION 6 VOTING PROVISIONS................................................8
6.1 Voting by Investor...............................................8
6.2 Presence for Quorum..............................................9
SECTION 7 BOARD REPRESENTATION.............................................9
SECTION 8 EQUITY ACCOUNTING................................................9
SECTION 9 MISCELLANEOUS....................................................9
9.1 Termination......................................................9
9.2 Specific Enforcement............................................10
9.3 Governing Law...................................................10
9.4 Successors and Assigns..........................................10
9.5 Entire Agreement; Amendment.....................................10
9.6 Publicity.......................................................10
9.7 Confidentiality.................................................11
9.8 Notices, etc....................................................11
9.9 Severability....................................................12
<PAGE>
<PAGE>
9.10 Titles and Subtitles............................................12
9.11 Facsimile Signatures............................................12
9.12 Counterparts....................................................12
<PAGE>
<PAGE>
INVESTOR AGREEMENT
This Investor Agreement (this "Agreement") is entered into effective as of
_______, 1996 by and among IMPERIAL HOLLY CORPORATION, a Texas corporation (the
"Company"), and GREENCORE GROUP PLC and EARLSFORT HOLDINGS B.V. (collectively,
the "Investor").
RECITALS
WHEREAS, the Company and Investor are parties to that certain Stock
Purchase Agreement dated as of July 25, 1996 (the "Purchase Agreement")
providing for the issuance and sale by the Company and the purchase
("Acquisition") by the Investor of 3,800,000 shares ("Shares") of the Company's
Common Stock, without par value ("Company Common Stock");
WHEREAS, the Shares will represent approximately 27% of the total
number of shares of Company Common Stock outstanding immediately after the
Acquisition;
WHEREAS, the Company and Investor wish to provide for and
acknowledge certain arrangements and understandings following the Acquisition;
WHEREAS, the Company's issuance and sale and the Investor's purchase
of the Shares is conditioned upon the execution of this Agreement;
NOW THEREFORE, in consideration of the foregoing, the parties agree
as follows:
SECTION IX.
CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall have the respective
meanings set forth in this Section 1:
"Affiliate" means, with respect to any entity, an affiliate of that entity
as defined in Rule 12b-2 under the Exchange Act.
"Beneficial owner" or "beneficially owned" or "beneficial ownership" shall
have the meaning assigned to such term in Rule 13d-3 under the Exchange Act.
<PAGE>
<PAGE>
"Independent Director" means a member of the Board of Directors of the
Company other than any director nominated by the Investor or any director having
an interest in the matter to be voted upon.
"Subsidiary" means, with respect to any entity, any other entity of which
securities or other ownership interest having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are owned directly or indirectly by such entity.
"Voting Power" means, with respect to Voting Securities, the maximum
number of votes that the holders of Voting Securities are entitled to vote in
the election of directors (except to the extent such voting rights are
contingent upon dividend arrearages or similar circumstances).
"Voting Securities" means all classes of the Company's capital stock that
are entitled by their terms (and determined without regard to the voting
provisions of this Agreement) to vote generally in the election of directors and
all options, rights, warrants and other securities convertible into, or
exercisable or exchangeable for, any shares of such capital stock (excluding
options granted pursuant to the Company's employee stock plans).
SECTION X.
STOCKHOLDER ACTIVITIES
A. CERTAIN AGREEMENTS. The Investor agrees that, except as specifically
permitted or contemplated by this Agreement or unless previously approved in
writing by the Company upon the approval of a majority of the Independent
Directors, the Investor and each of its Affiliates will not in any manner,
directly or indirectly acting alone or in concert with others:
(i) acquire, or offer or agree, attempt, seek or propose to acquire,
directly or indirectly, any securities or property of the Company or any
of its successors or subsidiaries (or any direct or indirect beneficial
ownership, rights, options or interests therein), provided, that the
Investor may acquire Voting Securities, subject to Section 2.3 hereof, if
after the acquisition thereof the Investor and its
<PAGE>
<PAGE>
Affiliates would not hold in the aggregate 30% or more of the Voting Power
of the Company (such percentage limitation being the "Percentage
Limitation");
(ii) solicit proxies or consents or become a "participant" in a
"solicitation" (as such terms are defined or used in Regulation 14A under
the Securities Exchange Act of 1934, as amended (the "Exchange Act")), of
proxies or consents with respect to securities of the Company or any of
its successors or subsidiaries or initiate any shareholder proposal or
"election contest" (as such term is defined or used in Rule 14a-11 of the
Exchange Act) with respect to the Company or any of its successors or
subsidiaries or, directly or indirectly, act to encourage, or induce
others to take any such action;
(iii) take any public action for the purpose of convening a
shareholders meeting of the Company or any of its successors or
subsidiaries or, directly or indirectly, act to encourage, or induce
others to take such action;
(iv) make any public announcement or disclosure relating to the
acquisition of Voting Securities that would result in the Investor
exceeding the Percentage Limitation or a merger, business combination,
sale of assets, liquidation, restructuring, recapitalization or other
extraordinary corporate transaction relating to the Company or any of its
successors or subsidiaries (other than the establishment of joint
ventures, licenses or other transactions in the ordinary course of
business);
(v) deposit Voting Securities into a voting trust or subject Voting
Securities to voting agreements, except as provided in Section 6.1 hereof,
or grant any proxy with respect to any Voting Securities to any person not
designated by the Company who is not an officer, director or employee of
Investor;
(vi) form, join or in any way participate in a "group" (within the
meaning of Section 13(d)(3) of the Exchange Act) for the purpose of
acquiring, holding, voting or disposing of securities of the Company or
any of its successors or subsidiaries or otherwise with respect to the
Company or taking any other actions
<PAGE>
<PAGE>
restricted or prohibited under any clause of this Section 2.1;
(vii) disclose publicly any intention, plan or arrangement
inconsistent with the foregoing or the other provisions of this Agreement
relating to any Voting Securities; or
(viii) enter into any discussions, negotiations, arrangements or
understandings with any third party with a view to, or advising, aiding,
abetting, soliciting, inducing or encouraging, any action prohibited by
any of the foregoing.
B. SUSPENSION. The agreements contained in Section 2.1 hereof shall not
apply during the pendency of (i) a sale of all or substantially all of the
Company's assets or (ii) a business combination or other transaction approved by
the Company's Board of Directors if upon consummation of any such transaction
the Company's shareholders immediately preceding consummation of the transaction
would beneficially own less than 50% of the surviving entity immediately
following consummation of the transaction. Notwithstanding the foregoing
provisions of this Section 2.2, if during such pendency period the Investor has
made a competing higher offer for the Company, the Investor shall be permitted
to consummate its then pending offer.
C. OBLIGATION TO REQUEST SECURITIES FROM THE COMPANY. If at any time
Investor beneficially owns less than the Percentage Limitation due in whole or
in part to a primary issuance of Voting Securities for cash or in connection
with an acquisition of assets or a business combination, or otherwise (other
than pursuant to an employee stock plan), and Investor wishes to increase its
beneficial ownership of Voting Securities up to the Percentage Limitation, then,
prior to Investor purchasing Voting Securities in the open market, Investor
agrees to request in writing (the "Investor Request") that the Company issue
primary Voting Securities to Investor. The Company will have 20 business days
after receipt of the Investor Request to determine whether it wishes to issue
primary Voting Securities (including treasury stock) to Investor. The purchase
price per share for such primary Voting Securities will be the average of the
closing price per share of the Voting Securities for the five trading days
immediately preceding the date of the Investor Request.
<PAGE>
<PAGE>
SECTION XI
RESTRICTIONS ON TRANSFER
A. TRANSFER RESTRICTIONS. The Investor will not, at any time, directly or
indirectly, sell, transfer any beneficial interest in, pledge, hypothecate or
otherwise dispose, or offer to sell, transfer any beneficial interest in,
pledge, hypothecate or otherwise dispose, any Voting Securities except:
(i) to any direct or indirect subsidiary of the Investor, provided
that (A) such subsidiary shall agree in writing to be bound by the terms
of this Agreement, (B) the Investor shall own, directly or indirectly, all
securities of such subsidiary (a "Wholly-Owned Subsidiary"), and (C)
should such subsidiary no longer be a Wholly-Owned Subsidiary, the Voting
Securities owned by such subsidiary shall be transferred back to the
Investor (and at the time of such transfer, such subsidiary shall so agree
in writing);
(ii) with the prior consent of the Independent Directors
specifically expressed in a resolution, provided, that the Company shall
have a right of first refusal as described in Section 4.1 hereof to
purchase such securities;
(iii) pursuant to a tender or exchange offer recommended to the
shareholders by the Independent Directors;
(iv) to a transferee where the amount of Voting Securities
transferred to such transferee and its Affiliate does not exceed 2% of the
Voting Power, provided that the Investor has not transferred any Voting
Securities to such transferee together with its Affiliates during the 12
months immediately preceding such transfer;
(v) in the event that (A) the Shares are sold in an underwritten
public offering pursuant to a registration statement permitted by the
Registration Rights Agreement between the Company and the Investor of even
date herewith and (B) the offering is a bona fide, widely distributed
public offering;
(vi) into a tender or exchange offer not approved by the Board of
Directors pursuant to which, if such offer were consummated, the offeror
would beneficially
<PAGE>
<PAGE>
own more than 50% of the Voting Power, provided, that the Company shall
have a right of first refusal as described in Section 4.1 hereof to
purchase such securities;
(vii) pursuant to a merger or consolidation in which the Company is
acquired, or sale of all or substantially all of the Company's assets to
another corporation or any other transaction approved by the Company's
Board of Directors; or
(viii) to other persons, provided, that the Company shall have a
right of first offer as described in Section 5.1 hereof to purchase such
securities.
B. MARKET STANDOFF. The Investor shall not, to the extent requested by the
Company and any underwriter of Common Stock or other securities of the Company,
directly or indirectly, sell, offer to sell, contract to sell, grant any option
to purchase or otherwise transfer or dispose of any securities of the Company
held by it for a period of up to 90 days following the commencement date of a
public offering of such Common Stock or other securities of the Company.
C. STOP TRANSFER ORDER. The Company shall not be required (i) to transfer
on its books any Voting Securities that shall have been sold or transferred in
violation of any of the provisions set forth in this Agreement or (ii) to treat
as owner of such Voting Securities or accord the right to vote as such owner or
pay dividends to any transferee to whom such Voting Securities shall have been
so transferred in violation of any the provisions set forth in this Agreement.
Any purported transfer of Voting Securities by any holder that is not in
compliance with the terms and conditions of this Agreement shall be void, and
the transferee under any such purported transfer shall acquire no title or
ownership thereby. The Investor hereby agrees to the entry of a stop transfer
order with the transfer agent or agents of the Company against the transfer of
Voting Securities except in compliance with the requirements of this Agreement.
D. LEGEND. To assist in effectuating the provisions of this Agreement,
Investor hereby consents to the placement of the following legend on all
certificates representing the Voting Securities beneficially owned by it until
termination of this Agreement:
<PAGE>
<PAGE>
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
PROVISIONS OF AN AGREEMENT BETWEEN INVESTOR AND THE COMPANY AND MAY NOT BE
SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT
IN ACCORDANCE THEREWITH. A COPY OF SUCH AGREEMENT IS ON FILE AT THE OFFICE
OF THE SECRETARY OF THE COMPANY.
SECTION XII.
RIGHT OF FIRST REFUSAL
A. RIGHT OF FIRST REFUSAL. Prior to making any sale, transfer or other
disposition of Voting Securities pursuant to Section 3.1(ii) or (vi), the
Investor shall give the Company the opportunity to purchase such securities in
the following manner:
(i) The Investor shall give notice (the "Transfer Notice") to the
Company in writing of such intention specifying the number of Voting
Securities proposed to be sold or transferred, the proposed price per
Voting Security (the "Transfer Consideration"), and the other material
terms upon which such disposition is proposed to be made.
(ii) In connection with proposed transfers of Voting Securities
pursuant to Section 3.1(ii) hereof, the Company shall have the right,
exercisable by written notice given by the Company to the Investor within
90 days after receipt of the Transfer Notice, to purchase (or to cause a
corporation, entity, person or group designated by the Company to
purchase) all of the Voting Securities specified in such Transfer Notice
for cash in an amount equivalent to the aggregate Transfer Consideration.
If the purchase price specified in the Transfer Notice includes any
property other than cash, such purchase price shall be deemed to be the
amount of any cash included in the purchase price plus the value (as
jointly determined by a nationally recognized investment banking firm
selected by each party or, in the event such firms are unable to agree, a
third nationally recognized investment banking firm to be selected by such
firms) of such other property included in such price. For this purpose:
(A) The parties shall use their best efforts to cause any
determination of the value of any securities included in the
purchase price to be made within five business days after the date
of
<PAGE>
<PAGE>
delivery of the Transfer Notice. If the investment banking firms
selected by the Company and the Investor are unable to agree upon
the value of any such securities within such five-day period, the
parties shall promptly select a third firm whose determination shall
be conclusive.
(B) The parties shall use their best efforts to cause any
determination of the value of property other than securities to be
made within 10 business days after the date of delivery of the
Transfer Notice. If the investment banking firms selected by the
Company and the Investor are unable to agree upon a value within
such 10-day period, the parties shall promptly select a third firm
whose determination shall be conclusive.
(C) The date on which the Company must exercise its right of
first refusal shall be extended until five business days after the
determination of the value of property included in the purchase
price if such property consists solely of securities or 10 business
days after the determination of such value if other property is
included.
(iii) In connection with proposed transfers of Voting Securities
pursuant to Section 3.1(vi) hereof, the Company shall have the right,
exercisable by written notice given by the Company to the Investor no
later than three business days prior to termination of the tender or
exchange offer, as extended, to purchase (or to cause a corporation,
entity, person or group designated by the Company to purchase) all of the
Voting Securities specified in such Transfer Notice for cash in an amount
equivalent to the aggregate Transfer Consideration. If the purchase price
specified in the Transfer Notice includes any property other than cash,
the relevant portions of clause (ii) of this Section 4.1 shall apply.
(iv) If the Company or its assigns exercises the right of first
refusal hereunder, the closing of the purchase of the Voting Securities
with respect to which such right has been exercised shall take place
within 20 business days after the Company or its assigns gives notice of
such exercise, which period of time shall be
<PAGE>
<PAGE>
extended, as necessary, in order to comply with applicable securities and
other applicable laws and regulations. Upon exercise of its right of first
refusal, the Company or its assigns and the Investor shall be legally
obligated to consummate the purchase contemplated thereby and shall use
their reasonable best efforts to secure any approvals required in
connection therewith.
(v) If neither the Company nor its assigns exercise the right of
first refusal with respect to proposed transfers of Voting Securities
under Section 3.1(ii) hereunder within the time specified for such
exercise, provided a binding agreement to sell such Voting Securities is
entered into within 30 days following the expiration of such time for
exercise, the Investor shall be free, during the period of 60 days
following the expiration of such time for exercise, to sell the Voting
Securities specified in the Transfer Notice at a price not less than the
Transfer Consideration.
B. ASSIGNMENT OF RIGHT OF FIRST REFUSAL. The Company may
assign its rights under Section 4.1 hereof to other persons who
shall then be entitled to purchase such securities.
SECTION XIII.
RIGHT OF FIRST OFFER
A. INVESTOR OFFERS. Prior to making any offer to sell, transfer or
otherwise dispose of any Voting Securities for cash to any third party pursuant
to Section 3.1(viii) hereof the Investor shall give the Company 90 days prior
written notice (the "Offer"), delivered or mailed as provided in Section 9.8
hereof, of Investor's desire to sell any Voting Securities (the"Offered
Securities"), stating the proposed price per Voting Security, the number of
Voting Securities offered and the other material terms of such proposed sale.
Such notice shall include a representation to the Company that the Investor has
a good faith intention to sell such Voting Securities on the terms specified
therein. The Offer shall constitute an offer by the Investor, irrevocable for 90
days, to the Company for all of the Offered Securities on the terms specified in
the Offer.
B. ACCEPTANCE OF OFFER. Within 90 days after receipt of
an Offer, the Company may elect to provide written notice to the
Investor (an "Acceptance Notice") that the Company has elected to
<PAGE>
<PAGE>
purchase all of the Offered Securities. If the Company fails to provide an
Acceptance Notice to the Investor by the end of such 90-day period, the Company
shall be deemed to have elected not to purchase the Offered Securities.
C. CLOSING. The closing of any sale of Offered Securities shall take place
on such date, within 20 business days of the date of the Acceptance Notice
(subject to extension to comply with applicable securities and other applicable
laws and regulations related to the transfer of the Offered Securities to the
Company), as shall be agreed by the Company and the Investor. At any such
closing, the Investor shall deliver to the Company certificate(s) representing
the Offered Securities being sold, duly assigned to the Company or its assigns,
against payment of the applicable purchase price by check or wire transfer of
same day funds.
D. LIMITATION OF RIGHTS. If the Company does not elect to purchase the
Offered Securities within the 90-day period in Section 5.2 hereof, then the
Investor must sell all, but not less than all, of the Offered Securities at not
less than the price stated in the Offer and otherwise on terms no less favorable
to the Investor than those presented to the Company in the Offer on or before
the 90th day following the expiration of the 90-day period in Section 5.2 hereof
(subject to extension to comply with applicable securities and other applicable
laws and regulations related to the transfer of the Offered Securities from the
Investor to the purchasers). If the Offered Securities have not been sold within
such 90-day period, then the Investor may not sell any Offered Securities unless
it provides the Company with a new Offer pursuant to Section 5.1 hereof.
E. ASSIGNMENT OF RIGHT OF FIRST OFFER. The Company may assign its rights
under this Section 5 to other persons who shall then be entitled to accept the
Offer and purchase such securities.
SECTION XIV.
VOTING PROVISIONS
A. VOTING BY INVESTOR. With respect to the election of directors of the
Company, the Investor shall vote all Voting Securities directly or indirectly
owned by the Investor in the manner recommended to shareholders by the Company's
Board of Directors.
<PAGE>
<PAGE>
B. PRESENCE FOR QUORUM. The Investor and its Affiliates, as holders of
Voting Securities, shall be present, in person or by proxy, at all meetings of
shareholders of the Company with respect to which Investor receives notice so
that all Voting Securities directly or indirectly owned by it and its Affiliates
may be counted for the purpose of determining the presence of a quorum at such
meetings.
SECTION XV.
BOARD REPRESENTATION
Until such time as Investor holds less than 15% of the Voting Power, the
Company will cause to be included in the Company's annual proxy materials
qualified natural persons designated by Investor ("Designees") as nominees for
election to the Company's Board of Directors such that two of the Company's
directors constitute Designees. The Company agrees to solicit proxies from its
shareholders for the Designees. If a Designee shall cease to be a director of
the Company for any reason, the Company shall promptly, upon the request of
Investor, use its reasonable best efforts to cause the election or appointment
of a qualified, acceptable person recommend by Investor to replace such
Designee. The right to designate directors of the Company pursuant to this
Section 7 is personal to Investor and may not be transferred in any manner
without the consent of the Independent Directors.
SECTION XVI.
EQUITY ACCOUNTING
If the Investor elects to account for its investment in the Company
pursuant to the equity method, if requested by the Investor, the Company will
furnish to the Investor information that is required by generally accepted
accounting principles to enable the Investor to account for its investment in
the Company pursuant to the equity method, to the extent reasonably available to
the Company.
SECTION XVII.
MISCELLANEOUS
A. TERMINATION. This Agreement shall terminate upon the earlier to occur
of the following: (i) the fifth anniversary of the date of this Agreement; (ii)
the date on which the Investor
<PAGE>
<PAGE>
beneficially owns less than 8% of the Voting Power; (iii) such time as the
aggregate number of shares of the Company's Common Stock beneficially owned by
I. H. Kempner, III, James C. Kempner and the H. Kempner Trust Association is
less than 300,000 shares (appropriately adjusted for stock splits, reverse stock
splits, stock dividends, recapitalizations and similar events); (iv) such time
as any other person or group beneficially owns more Voting Securities than the
aggregate Voting Securities then beneficially owned by the Investor and (A) the
descendants of H. Kempner or (B) trusts controlled by or for the benefit of the
descendants of H. Kempner; or (v) the date on which a person or group (not
including the Investor or the persons referred to in subclause (A)or (B) of
clause (iv) of this Section 9.1) beneficially owns more than 50% of the Voting
Power, whether by way of tender or exchange offer or otherwise. In the event
that a person or group beneficially owns a greater number of Voting Securities
than Investor, the Company agrees to provide the Investor with a certified copy
of the beneficial ownership of the persons referred to in subclause (A) or (B)
of clause (iv) of this Section 9.1.
B. SPECIFIC ENFORCEMENT. The Company and the Investor acknowledge and
agree that if any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached, irreparable
damage would occur and it would be extremely impracticable and difficult to
measure damages. Accordingly, in addition to any other rights and remedies to
which the parties may be entitled by law or equity, the parties shall be
entitled to an injunction or injunctions to prevent or cure breaches of the
provision of this agreement and to enforce specifically the term and provisions
hereof, and the parties expressly waive (a) the defense that a remedy in damages
will be adequate and (b) any requirement, in an action for specific performance,
for the posting of a bond.
C. GOVERNING LAW. This Agreement shall be governed and construed in all
respects in accordance with the laws of the State of Texas as applied to
agreements made and performed in Texas by residents of the State of Texas. The
Company and the Investor each hereby consents to personal jurisdiction in any
action brought with respect to this Agreement and the transactions contemplated
hereby in the United States District Court for the Southern District of Texas.
The Company and the Investor each also agrees that service of process may be
accomplished pursuant to the provisions of Section 9.8 hereof.
<PAGE>
<PAGE>
D. SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
E. ENTIRE AGREEMENT; AMENDMENT. This Agreement and the other documents
delivered pursuant hereto at the Closing constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof, and no party shall be liable or bound to any other party in
any manner by any warranties, representations or covenants except as
specifically set forth herein or therein. Except as expressly provided herein,
neither this Agreement nor any term hereof may be amended, waived, discharged or
terminated other than by a written instrument signed by the party against whom
enforcement of any such amendment, waiver, discharge or termination is sought.
F. PUBLICITY. Neither the Company nor Purchaser shall issue any press
release or otherwise make an public statement with respect to the transactions
contemplated by this Agreement without consulting the other party, except as may
be required by applicable law or regulation.
G. CONFIDENTIALITY. Purchaser acknowledges and agrees that any information
or data it has acquired from the Company, not otherwise properly in the public
domain, was received in confidence. Purchaser agrees not to divulge, communicate
or disclose, except as may be required by law or for the performance of this
Agreement, or use to the detriment of the Company or for the benefit of any
other person or persons, or misuse in any way, any confidential information of
the Company.
H. NOTICES, ETC. Unless otherwise provided, any notice, request, demand or
other communication required or permitted under this Agreement shall be given in
writing and shall be deemed effectively given upon personal delivery to the
party to be notified, or when sent by telex or telecopier (with receipt
confirmed), or one business day following deposit with overnight courier or
three business days following deposit with the United States Post Office, by
registered or certified mail, postage prepaid and addressed as follows (or at
such other address as a party may designate by notice to the other):
<PAGE>
<PAGE>
If to the Company:
Imperial Holly Corporation
One Imperial Square, Suite 200
8016 Highway 90-A
Sugar Land, TX 77478
Attention: President
Telephone: (713) 490-9780
Facsimile: (713) 490-9897
with a copy to:
Baker & Botts, L.L.P.
One Shell Plaza
910 Louisiana
Houston, TX 77002-4995
Attention: J. David Kirkland, Jr.
Telephone: (713) 229-1101
Facsimile: (713) 229-1522
If to the Investor:
Greencore Group plc
St. Stephen's Green House
Earlsfort Terrace
Dublin 2, Ireland
Attention: Chief Executive Officer
Telephone: 011-3531-605-1000
Facsimile: 011-3531-605-1101
with a copy to:
Weil, Gotshal & Manges LLP
700 Louisiana, Suite 1600
Houston, TX 77002
Attention: Steven D. Rubin
Telephone: (713) 546-5030
Facsimile: (713) 224-9511
I. SEVERABILITY. In the event that any provision of this Agreement becomes
or is declared by a court of competent jurisdiction to be illegal, invalid,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision. In such event, the parties shall negotiate, in good
faith, a legal, valid and enforceable substitute provision which most nearly
effects the intent of the parties in entering into this Agreement.
<PAGE>
<PAGE>
J. TITLES AND SUBTITLES. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
K. FACSIMILE SIGNATURES. Any signature page delivered by a fax machine or
telecopy machine shall be binding to the same extent as an original signature
page, with regard to any agreement subject to the terms hereof or any amendment
thereto. Any party who delivers such a signature page agrees to later deliver an
original counterpart to any party which requests it.
L. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
<PAGE>
<PAGE>
The foregoing agreement is hereby executed as of the date first above
written.
IMPERIAL HOLLY CORPORATION
a Texas corporation
By:
Title:
GREENCORE GROUP PLC
By:
Title:
EARLSFORT HOLDINGS B.V.
By:
Title:
Investor Agreement Signature Page
<PAGE>
Exhibit 2
JOINT FILING AGREEMENT
The undersigned, and each of them, do hereby agree and
consent to the filing of a single statement on behalf of all of them
on Schedule 13D and amendments thereto, in accordance with the
provisions of Rule 13d-1(f)(1) of the Securities Exchange Act of 1934.
Dated: August 2, 1996
GREENCORE GROUP PLC
By: /s/ Kevin O'Sullivan
-----------------------------------------
Name: Kevin O'Sullivan
Title: Chief Financial Officer and Director
EARLSFORT HOLDINGS B.V.
By: /s/ Kevin O'Sullivan
-----------------------------------------
Name: Kevin O'Sullivan
Title: Managing Director
