UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Opta Food Ingredients, Inc.
(Name of Issuer)
Common Stock, $.01 par value per share
(Title of Class of Securities)
68381N 10 5
(CUSIP Number)
Mr. Henry Lagarde with copies to:
Nouvelle Holding John M. Reiss, Esq.
Guyomarc'h S.A. White & Case
14 rue Lafayette 75009 1155 Avenue of the
Paris, France Americas
(33) 1 48 01 98 50 New York, NY 10036
212-819-8200
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
December 30, 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 ( ).
____________
<PAGE>
SCHEDULE 13D
CUSIP 68381N 10 5
<TABLE>
<S> <C>
1 NAME OF REPORTING PERSON
Nouvelle Holding Guyomarc'h S.A.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ( )
(b) (X)
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED ( )
PURSUANT TO ITEMS 2(d) or 2(E)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Republic of France
NUMBER OF SHARES 7 SOLE VOTING POWER
BENEFICIALLY OWNED BY EACH 1,386,674 (see discussion in Items 4 & 5)
REPORTING PERSON WITH
8 SHARED VOTING POWER
0 (see discussion in Items 4 & 5)
9 SOLE DISPOSITIVE POWER
1,386,674 (see discussion in Items 4 & 5)
10 SHARED DISPOSITIVE POWER
0 (see discussion in Items 4 & 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,386,674 (see discussion in Items 4 & 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES ( )
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.7%(see discussion in Items 4 & 5)
14 TYPE OF REPORTING PERSON
HC
</TABLE>
<PAGE>
SCHEDULE 13D
CUSIP 68381N 10 5
<TABLE>
<S> <C>
1 NAME OF REPORTING PERSON
Compagnie Financiere de Paribas
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ( )
(b) (X)
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED ( )
PURSUANT TO ITEMS 2(d) or 2(E)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Republic of France
NUMBER OF SHARES 7 SOLE VOTING POWER
BENEFICIALLY OWNED BY EACH 1,386,674 (see discussion in Items 4&5)
REPORTING PERSON WITH
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
1,386,674 (see discussion in Items 4&5)
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,386,674 (see discussion in Items 4&5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES ( )
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.7% (see discussion in Items 4&5)
14 TYPE OF REPORTING PERSON
HC
<FN>
<F1> Compagnie Financiere de Paribas expressly disclaims any beneficial ownership of shares of Opta Food Ingredients, Inc.
</TABLE>
<PAGE>
SCHEDULE 13D
OPTA FOOD INGREDIENTS, INC.
ITEM 1. SECURITY AND ISSUER
This statement on Schedule 13D relates to the common stock, $.01 par
value per share (the "Common Stock") of Opta Food Ingredients, Inc., a
Delaware corporation (the "Company"), the principal executive offices of which
are located at 25 Wiggins Avenue, Bedford, Massachusetts 01730.
ITEM 2. IDENTITY AND BACKGROUND
This statement on Schedule 13D is being filed by (i) Nouvelle
Holding Guyomarc'h S.A. ("Nouvelle"), a societe anonyme incorporated in Paris,
under the laws of the Republic of France and (ii) Compagnie Financiere de
Paribas ("Paribas"), a diversified holding company organized under the laws of
the Republic of France which maintains holdings in a number of jurisdictions.
Nouvelle and Paribas are hereinafter sometimes collectively referred to as the
"Reporting Persons."
Nouvelle, approximately 95% of the capital stock of which is held by
Paribas, is a holding company used by Paribas to hold investments in the food
sector. The address of Nouvelle's principal business and of its principal
office is 14 rue Lafayette 75009, Paris, France.
Paribas holds operating subsidiaries that engage in a wide variety
of banking, financial services, manufacturing, trading, development and
related activities. The principal office address of Paribas is 3, rue
d'Antin, Paris, France.
The attached Schedule I is a list of the executive officers and
directors of Nouvelle and Paribas, which contains the following information
with respect to each such person: (i) name; (ii) business address; (iii)
present principal occupation or employment and the name, principal business
and address of any corporation or other organization in which such employment
is conducted; and (iv) place of citizenship.
During the last five years, neither Nouvelle, Paribas nor, to the
best of Nouvelle's or Paribas' knowledge, any person named on Schedule I
hereto has been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or has been a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction as a result of
which such person 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
Between October 7, 1996 and December 23, 1996, Nouvelle used working
capital to purchase 531,900 shares of common stock of the Company in a series
of open market purchases for an aggregate purchase price of $3,826,608.57
(including brokerage commissions).
Nouvelle entered into a Securities Purchase Agreement, dated as of
December 30, 1996 with Pfizer, Inc. ("Pfizer"), (the "Securities Purchase
Agreement") pursuant to which Nouvelle purchased 854,774 shares of common
stock of the Company from its working capital for $8.50 per share.
ITEM 4. PURPOSE OF THE TRANSACTION
<PAGE>
The shares, the ownership of which is reported hereby, were acquired
for investment purposes. The Reporting Persons reserve the right from time to
time to acquire additional shares, or to dispose of some or all of their
shares. The Reporting Persons may from time to time discuss with management
of the Company various ideas with a view to enhancing the value of the shares.
Furthermore, Nouvelle has entered into an agreement dated as of December 30,
1996 with the Company (the "Opta Agreement"), pursuant to which (i) Nouvelle
has the right to have a designee (the "Designee") appointed to the Board of
Directors of the Company until the next annual meeting of shareholders (by
means which may include, among other things, expansion of the Board of
Directors) and (ii) the Board of Directors of the Company will nominate the
Designee for election in connection with the next election of Directors.
Pursuant to the Opta Agreement, the Company's obligation to maintain the
Designee as Director of the Company is limited to one year. However, Nouvelle
would expect the Designee to continue as a member of the Board of Directors of
the Company so long as Nouvelle continues to own a material amount of Shares.
Except as set forth above, neither of the Reporting Persons nor any
of the persons set forth in Schedule I has any plan or proposal which relate
to, or would result in, any of the matters referred to in paragraphs (a)
through (j) of Item 4 of the General Instructions for Schedule 13D.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) Based upon the outstanding number of shares set forth in the
Company's Form 10-Q for the fiscal quarter ended September 30, 1996 (filed by
the Company with the Securities and Exchange Commission on November 8, 1996)
Paribas' beneficial ownership of 1,386,674 shares of Common Stock constitutes
beneficial ownership of 12.7% of the total number of shares of outstanding
Common Stock.
(b) Paribas, acting through its subsidiary Nouvelle, has the sole
power to vote or to direct the vote of, and sole power to dispose or direct
the disposition of, 1,386,674 shares of Common Stock of the Company purchased
in the open market and pursuant to the Securities Purchase Agreement.
(c) During the past sixty days, neither Nouvelle, Paribas nor, to
the best knowledge of Nouvelle or Paribas, any of the persons set forth on
Schedule I, has effected any transactions in shares of Common Stock except
pursuant to the Securities Purchase Agreement and the purchases listed in Item
3 hereof.
<PAGE>
<TABLE>
<CAPTION>
Purchaser Date Number of Share Price Where How
Shares
<S> <C> <C> <C> <C> <C>
Nouvelle 12/19/96 59,000 5.654 NASDAQ Open Market
Nouvelle 12/20/96 75,500 5.380 NASDAQ Open Market
Nouvelle 12/23/96 65,500 5.5243 NASDAQ Open Market
</TABLE>
(d) Not applicable.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER
Securities Purchase Agreement. Pfizer and Nouvelle entered into a
Securities Purchase Agreement, dated as of December 30, 1996.
Subject to the terms and conditions set forth therein, Pfizer sold
to Nouvelle and Nouvelle purchased from Pfizer, 854,774 shares of Common Stock
of the Company, $.01 par value at a purchase price of $8.50 per share.
Opta Agreement. The Company and Nouvelle entered into the Opta
Agreement dated as of December 30, 1996.
Subject to the terms and conditions set forth therein, the Company
agreed in the Opta Agreement to appoint the Designee selected by Nouvelle to
the Board of Directors of the Company until the next annual meeting of
shareholders. The Company further agreed to nominate and solicit proxies for
the Designee as a director in connection with the next election of directors.
Pursuant to the Opta Agreement, the Company's obligation to maintain the
Designee as Director of the Company is limited to one year. However, Nouvelle
would expect the Designee to continue as a member of the Board of Directors of
the Company so long as Nouvelle continues to own a material amount of Shares.
Nouvelle agreed that for a period of one year after the date of the
Opta Agreement it would not and it would cause its subsidiaries to not (i)
acquire securities which would result in Nouvelle beneficially owning more
than 15% of the Company's outstanding common stock in the aggregate and (ii)
solicit proxies from shareholders of the Company.
Except as described in Items 3 and 4 above and in this Item 6,
neither Nouvelle, Paribas nor, to the best knowledge of Nouvelle or Paribas,
any of the individuals identified in Schedule I has any contract, arrangement,
understanding or relationship with any person with respect to any security of
the Company.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit No. Description
1 Securities Purchase Agreement, dated as of December 30,
1996, by and between Pfizer and Nouvelle.
2 Opta Agreement, dated December 30, 1996, by and between
the Company and Nouvelle.
3 Agreement, dated January 8, 1997, by and between Nouvelle
and Compagnie Financiere de Paribas regarding the filing
<PAGE>
of a single Schedule 13D on behalf of both parties
pursuant to Rule 13d-1(f)(1)(iii).
<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.
Dated: January 9, 1996
NOUVELLE HOLDING GUYOMARC'H S.A.
By: /s/ H. Lagarde
Name: H. Lagarde
Title: Chairman
<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.
Dated: January 9, 1996
COMPAGNIE FINANCIERE DE PARIBAS
By: /s/ A. D. de Seze
Name: A. D. de Seze
Title: Member of the Board of Management
<PAGE>
SCHEDULE I
The following tables set forth for the directors and executive officers
of Nouvelle Holding Guyomarc'h S.A. and Compagnie Financiere de Paribas (i)
the name and citizenship of each such person; (ii) the present principal
occupation or employment of each such person; and (iii) the name, principal
business and address of any business corporation or other organization in
which such occupation or employment is conducted.
<TABLE>
A.
EXECUTIVE OFFICERS AND DIRECTORS OF NOUVELLE HOLDING GUYOMARC'H S.A.
<CAPTION>
Present principal occupation or employment
Name/Position Citizenship and name and business address of employer
<S> <C> <C>
Henri Lagarde French Chairman and C.E.O. NH Guyomarch,
14 rue Lafayette - 75009 Paris
Giles Cosson French Chairman Coparex
Thierry Dormeuil French Executive Vice President Banque
Paribas, 3 rue d'Antin - 75002
Paris
Charles Doux French Chairman and CEO Doux S.A.,
29150 Chateulin
Jean-Marie Fabre French Executive Vice President
Banque Paribas
3, rue d'Antin
75002 Paris, France
Rene Gillain French Chairman Zoomarket SA
Retired C.E.O. Royal Canin,
34400 Lunel
Dominique Megret French Executive Vice President
Banque Paribas
3, rue d'Antin
75002 Paris, France
Jacques Paquin French Retired C.E.O of S.A.G.AL,
56400 Plumeret
Jean-Paul Sabet French Executive Vice President
Banque Paribas
3, rue d'Antin
75002 Paris, France
Paribas Participation French 41 avenue de l'Opera
company 75002 Paris
Michel Vermersch French Chairman M.V. Conseil,
56000 Vannes
</TABLE>
<PAGE>
<TABLE>
B.
EXECUTIVE OFFICERS AND DIRECTORS OF
COMPAGNIE FINANCIERE DE PARIBAS
Except as otherwise noted, the address of each such person in this Part C is 5, rue d'Antin, 75002 Paris, France.
<CAPTION>
Present Principal occupation or
employment and name and business
Name/Position Citizenship address of employer
<S> <C> <C>
Michel Francois-Poncet/ French President of Supervisory Board
President of Supervisory BANQUE PARIBAS
Board 3, rue d'Antin
75002 Paris, France
President of Supervisory Board
COMPAGNIE FINANCIERE
DE PARIBAS
Francois Morin/ French Vice President of Supervisory
Vice President of Supervisory Board
Board COMPAGNIE FINANCIERE
DE PARIBAS
Evan Baird/Member of United Kingdom President
Supervisory Board SCHLUMBERGER
42, rue Saint Dominique,
75007 Paris, France
Claude Bebear/Member of French President
Supervisory Board AXA
21/23, avenue de Matignon
75008 Paris
Enrico Braggiotti/Member of Italian President
Supervisory Board COMPAGNIE MONEGASQUE
DE BANQUE
23, avenue de la Costa
MC 98000 Monaco
Paul Desmarais/Member of Canadian Power Corporation of Canada
Supervisory Board 751 Victoria Square
Montreal, Quebec Canada
Jean Gandois/Member of French President, Conseil National de
Supervisory Board Patronat Francais
31, avenue Piere 1er de Serbie
75784 Paris
Antoine Jeancourt-Galignani/ French President
Member of Supervisory Board ASSURANCES GENERALE
DE FRANCE
87, rue de Richelieu
75002 Paris
Ambroise Roux/Member of French 8, bis rue Marguerite
Supervisory Board 75017 Paris
Thierry Desmarest/Member of French President
Supervisory Board COMPAGNIE FRANCAISE
DES PETROLES TOTAL
Tour Total
24, Cours Michelet
92080 Puteaux
<PAGE>
Andre Levy-Lang/ French President of Board of
President of Board of Management
Management COMPAGNIE FINANCIERE
DE PARIBAS
President of Board of
Management
BANQUE PARIBAS
3, rue d'Antin
Paris, France
Philippe Dulac/ French Member of Board of
Member of Board of Management Management
COMPAGNIE FINANCIERE
DE PARIBAS
Member of Board of
Management
BANQUE PARIBAS
3, rue d'Antin
Paris, France
Christian Manset/ French Member of Board of
Member of Board of Management Management
COMPAGNIE FINANCIERE
DE PARIBAS
Colette Neuville/Member of French Representative of the Minority
Supervisory Board Shareholders Association
5, rue Au Lin
98000 Chartres
Dennis Kessler/Member of French Societe Francais des Societes
Supervisory Board de'Assurances
26, Blvd Haussman
75009 Paris
Serge Tchuruk/Member of French Alcatel Alsthom
Supervisory Board 54, rue de la Boetie
75381 Paris
Francois Henrot/Member of French Chairman of the Board of
Board of Management Directors
Compagnie Bancaire
5, avenue Kleber
75016 Paris
Amaury-Daniel de Seze/ French Member of Board of
Member of Board of Management Management
COMPAGNIE FINANCIERE
DE PARIBAS
Member of Board of
Management
BANQUE PARIBAS
3, rue d'Antin
Paris, France
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
1 Securities Purchase Agreement, dated as of December 30, 1996,
by and between Pfizer and Nouvelle.
2 Opta Agreement, dated December 30, 1996, by and between
Nouvelle and the Company.
3 Agreement, dated January 8, 1997, by and between Nouvelle and
Compagnie Financiere de Paribas regarding the filing of a
single Schedule 13D on behalf of both parties pursuant to Rule
13d-1(f)(1)(iii).
<PAGE>
SECURITIES PURCHASE AGREEMENT dated as of December 30, 1996 (this
"Agreement"), by and between PFIZER, INC., a Delaware corporation (the
"Seller") and NOUVELLE HOLDING GUYOMARC'H S.A. (the "Purchaser").
WHEREAS, the Seller desires to sell to the Purchaser, and the Purchaser
desires to purchase from the Seller, the securities described on Schedule I
hereto of Opta Food Ingredients, Inc., a Delaware corporation (the "Company")
(collectively, and as such numbers of securities may be adjusted pursuant to
any stock splits, stock dividends or other similar events prior to the Closing
Date as contemplated by Section 9.14, the "Securities"), upon the terms and
subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the respective
agreements hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
Definitions
"Agreed Interest Rate" means 5.8125%.
"Closing" shall have the meaning given to such term in Article IV.
"Closing Date" shall have the meaning given to such term in Article IV.
"Encumbrances" means liens, security interests, claims, pledges, options,
rights of first refusal, charges, security agreements, mortgages or any other
encumbrances, restrictions or limitations on use or irregularities in title
thereto.
"Purchase Price Per Share" means $8.50.
"Securities Act" means the Securities Act of 1933, as amended.
ARTICLE II
Purchase and Sale
On the Closing Date, and upon the terms and subject to the conditions
herein set forth, the Seller agrees to sell, assign and transfer to the
Purchaser, free and clear of all Encumbrances, and the Purchaser hereby agrees
to purchase and accept from the Seller, the Securities. On the Closing Date
the Seller shall deliver to the Purchaser (against payment of the Purchase
Price provided for in Article III) certificates representing the Securities,
duly endorsed in blank, or accompanied by stock powers duly executed in blank,
in each case with signatures guaranteed.
ARTICLE III
Purchase Price
SECTION 3.01. Purchase Price. On the Closing Date, the Purchaser shall
pay to the Seller $7,265,579 ($8.50 x 854,774 shares) (the "Purchase Price").
The Purchase Price shall be paid in immediately available funds by wire
<PAGE>
transfer.
SECTION 3.02. Adjustment to Purchase Price. If within one (1) year of
the date hereof, the Purchaser sells any of the Securities for cash at any
time during the period beginning after the formal commencement of a tender
offer for all of the outstanding shares of the Company or a self tender offer
for more than 50% of the outstanding shares of the Company (each, a "Tender
Offer") and ending prior to the termination, withdrawal or expiration of such
Tender Offer (the "Tender Offer Period"), then the Purchaser shall pay the
Seller, out of payments received in respect of such Securities, an amount
equal to fifty percent (50%) of the excess of (I) the dollar amount received
for all of the Securities sold during the Tender Offer Period, over (II) (a)
the Purchase Price Per Share multiplied by the total number of Securities sold
during the Tender Offer Period multiplied by the sum of (i) one plus (ii) the
quotient obtained by dividing (A) the product of (x) the sum of Agreed
Interest Rate plus two percent (2%), multiplied by (y) the number of days the
Securities have been held, by (B) 360.
ARTICLE IV
The Closing
SECTION 4.01. Closing Date. Upon the terms and subject to the conditions
herein set forth, the purchase and sale provided for herein (the "Closing")
shall take place on January 7, 1997, or on such other time and date as shall
be fixed by agreement among the parties hereto. The date and time of Closing
are herein referred to as the "Closing Date".
ARTICLE V
Representations and Warranties of the Seller
Seller represents and warrants to the Purchaser as follows:
SECTION 5.01. Title to Securities. The Seller is the beneficial and
record owner of all of the Securities, free and clear of all Encumbrances.
The delivery of the Securities to the Purchaser pursuant to the provisions of
this Agreement will transfer to the Purchaser valid title thereto, free and
clear of all liens and Encumbrances.
SECTION 5.02. Authority of the Seller. The Seller has full right, power
and authority to sell, transfer and deliver to the Purchaser all of the
Seller's right, title and interest in the Securities and to consummate the
transactions contemplated herein. This Agreement has been duly and validly
executed and delivered by the Seller and is the legal, valid and binding
obligation of the Seller enforceable against the Seller in accordance with its
terms. No action, consent or approval by, or filing (except for a Form 144
with respect to certain of the Securities) with, any Federal, state,
municipal, foreign or other court or governmental or administrative body or
agency, or any other regulatory or self-regulatory body, by reason of
authority over the affairs of the Seller, is required to be made by the Seller
in connection with the execution and delivery by the Seller of this Agreement
or the consummation by the Seller of the transactions contemplated hereby.
SECTION 5.03. No Conflicts; No Violations. None of the execution,
delivery or performance of this Agreement by the Seller will (i) conflict with
the Seller's organizational documents or result in any breach of any terms or
provisions of, or constitute a default under, any contract, agreement or
instrument to which the Seller is a party or by which the Seller or its
property is bound or (ii) violate any judgment, order, decree, statute, law,
rule or regulation applicable to the Seller.
SECTION 5.04. Holdings by the Seller. The number of shares of capital
stock of the Company held by the Seller, including those not being sold
<PAGE>
pursuant to this Agreement, the dates of the Seller's purchase of such shares
of capital stock of the Company and the corresponding certificate numbers of
any shares of capital stock of the Company, as of the date of this Agreement,
are set forth in Schedule II hereto.
SECTION 5.05. Transferability. Seller acquired certificate no. OF-0066
for 604,774 shares of the Company's common stock on March 11, 1992 and
certificate no. OF-0611 for 250,000 shares of such stock on August 11, 1994.
The Seller has not been an affiliate (as defined in Rule 144(a)(1) under the
Securities Act) of the Company at any time in the last three months. Provided
the Purchaser is not a "dealer" as used in Section 4(1) of the Securities Act
and is not an affiliate of the Company at the time of the Purchaser's resale
of Securities (and for the three month period immediately preceding such
resale), then pursuant to Securities Act Rule 144, the Purchaser will not be
deemed an "underwriter" of the Securities and therefore, (i) pursuant to
subsection (k) of Securities Act Rule 144, the Securities represented by
certificate number OF-0066 shall not require registration under the Securities
Act in order to be resold in a public offering, (ii) pursuant to subsection
(k) of Securities Act Rule 144, the Securities represented by certificate
number OF-0611 shall not require registration under the Securities Act in
order to be resold in a public offering as of August 11, 1997 and (iii)
pursuant to subsection (b) of Securities Act Rule 144, the Securities
represented by certificate number OF-0611 shall not require registration under
the Securities Act in order to be resold prior to August 11, 1997 if sold in
compliance with all of the conditions of Rule 144. In the event that the
Purchaser is an affiliate of the Company (or has been an affiliate of the
Company at any time during the three month period preceding such sale), the
Securities represented by the certificates numbered OF-0066 and OF-0611 shall
not require registration under the Securities Act if resold in accordance with
the volume limitations and other requirements of Rule 144.
ARTICLE VI
Representations and Warranties of the Purchaser
The Purchaser represents and warrants to the Seller as follows:
SECTION 6.01. Authority of the Purchaser. The Purchaser has full right,
power and authority to consummate the transactions contemplated herein. This
Agreement has been duly and validly executed and delivered by the Purchaser
and is the legal, valid and binding obligation of the Purchaser enforceable
against the Purchaser in accordance with its terms. No action, consent or
approval by, or filing (other than those required under Section 13 of the
Securities Exchange Act of 1934) with, any Federal, state, municipal, foreign
or other court or governmental or administrative body or agency, or any other
regulatory or self-regulatory body, by reason of authority over the affairs of
the Purchaser, is required to be made or obtained by the Purchaser in
connection with the execution and delivery by the Purchaser of this Agreement
or the consummation by the Purchaser of the transactions contemplated hereby.
SECTION 6.02. No Conflicts; No Violations. None of the execution,
delivery or performance of this Agreement by the Purchaser will (i) conflict
with the Purchaser's organizational documents or result in any breach of any
terms or provisions of, or constitute a default under, any contract, agreement
or instrument to which the Purchaser is a party or by which the Purchaser or
its property is bound or (ii) violate any judgment, order, decree, statute,
law, rule or regulation applicable to the Purchaser.
ARTICLE VII
Conditions Precedent to Obligations of Purchaser
Notwithstanding any other provisions of this Agreement, the obligation of
the Purchaser to consummate the transactions contemplated hereby shall be
subject to the fulfillment, prior to or at the date hereof, of each of the
<PAGE>
following conditions precedent, any of which may be waived by the Purchaser:
SECTION 7.01. Accuracy of Representations and Warranties. The
representations and warranties of the Seller contained in this Agreement
shall, when made and at and as of the date hereof, be true and correct.
SECTION 7.02. Performance by the Seller. The Seller shall have duly
performed and complied in all material respects with all terms, agreements and
conditions required by this Agreement to be performed or complied with by it
prior to or at the Closing Date.
SECTION 7.03. Legal Proceedings. There shall not be any injunction or
temporary restraining order granted by any court of competent jurisdiction in
effect which restrains, prohibits or invalidates the Purchaser's or the
Seller's entry into, or the performance by the Purchaser or the Seller of the
transactions contemplated by, this Agreement.
SECTION 7.04. Opinion. The Purchaser shall receive from Walter Gangl,
counsel to the Seller, an opinion addressed to the Purchaser, dated as of the
date hereof, satisfactory in form and substance to the Purchaser.
ARTICLE VIII
Conditions Precedent to Obligations of the Seller
Notwithstanding any other provision of this Agreement, the obligation of
the Seller to consummate the transactions contemplated hereby shall be subject
to the fulfillment, prior to or at the date hereof, of each of the following
conditions precedent, any of which may be waived by the Seller.
SECTION 8.01. Accuracy of Representations and Warranties. The
representations and warranties of the Purchaser contained in this Agreement
shall, when made and as of the Closing Date, shall be true and correct.
SECTION 8.02. Performance by the Purchaser. The Purchaser shall have
duly performed and complied in all material respects with all terms,
agreements and conditions required by this Agreement to be performed or
complied with by the Purchaser prior to or at the date hereof.
SECTION 8.03. Legal Proceedings. There shall not be any injunction or
temporary restraining order granted by any court of competent jurisdiction in
effect which restrains, prohibits or invalidates the Purchaser's or the
Sellers' entry into, or the performance by the Purchaser or the Seller of the
transactions contemplated by, this Agreement.
ARTICLE IX
Miscellaneous
SECTION 9.01. Reasonable Efforts; Further Actions. The parties hereto
each will use all reasonable efforts to take or cause to be taken all action
and to do or cause to be done all things necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement. If, at any time after the date
hereof, any further action is necessary or desirable to carry out the purposes
of this Agreement or to vest the Purchaser with good and marketable title to
the Securities free and clear of all Encumbrances, the proper officers,
directors, partners or duly authorized representatives of each party to this
Agreement shall take all such necessary action.
SECTION 9.02. Consents. The Purchaser and the Seller will cooperate with
each other in filing any necessary applications, reports or other documents
with, giving any notices to, and seeking any consents from, all regulatory
bodies and all governmental agencies and authorities and all third parties
<PAGE>
(including, without limitation, any other stockholders) as may be necessary or
desirable in connection with the consummation of the transactions contemplated
by this Agreement.
SECTION 9.03. Amendment and Waiver; Remedies Cumulative. (a) This
Agreement may not be amended or supplemented except by an instrument in
writing signed by the Purchaser and the Seller. Any term or provision of this
Agreement may be waived, but only in writing by the party which is entitled to
the benefit thereof.
(b) The rights and remedies of a party under this Agreement shall be
cumulative and not exclusive of any rights or remedies which such party would
otherwise have hereunder or at law or in equity or by statute, and no failure
or delay by such party in exercising any right or remedy shall impair any such
right or remedy or operate as a waiver of such right or remedy, nor shall any
single or partial exercise of any power or right preclude its other or further
exercise or the exercise of any other power or right. The waiver by any party
hereto of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any preceding or succeeding breach and no failure by
either party to exercise any right or privilege hereunder shall be deemed a
waiver of such party's rights or privileges hereunder or shall be deemed a
waiver of such party's rights to exercise the same at any subsequent time or
times hereunder.
SECTION 9.04. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one instrument. It shall not be necessary for each
party to sign each counterpart so long as every party has signed at least one
counterpart.
SECTION 9.05. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been given if delivered
personally or sent by registered or certified mail (return receipt requested),
postage prepaid, or by telecopy to the parties to this Agreement at the
following addresses or at such other address for a party as shall be specified
by like notice:
If to the Seller, at:
Pfizer, Inc.
235 East 42nd Street
New York, New York 10017
Attention: Mr. Walter Gangl
Telecopy: (212) 573-1853
If to the Purchaser, at:
Nouvelle Holding Guyomarc'h S.A.
14 rue Lafayette 75009
Paris, France
Attention: Henry Lagarde
Telecopy:
and to:
White & Case
1155 Avenue of the Americas
New York, NY 10036
Attention: John Reiss, Esq.
Telecopy: (212) 354-8113
All such notices and communications shall be deemed to have been received
on the date of delivery, on the date that the telecopy is confirmed as having
been received or on the third business day after the mailing thereof, as the
case may be.
<PAGE>
SECTION 9.06. Assignment. Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable by any party to this Agreement without the prior written consent of
the other party, and any attempt to assign any right, remedy, obligation or
liability arising hereunder without such consent shall be void.
SECTION 9.07. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, written and oral.
SECTION 9.08. Binding Effect; Parties in Interest. This Agreement shall
be binding upon and incurred to the benefit of the parties to this Agreement
and their respective successors and permitted assigns, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any rights, benefits or remedies of any nature whatsoever under or by
reason of this Agreement.
SECTION 9.09. Expenses; Attorney Fees. Each of the parties hereto shall
pay its own costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby, including, without limitation, the fees
and expenses of counsel, irrespective of when incurred. Any stamp duty,
transfer tax or other similar cost connected with the transfer of the
Securities to the Purchaser shall be paid by the Seller.
SECTION 9.10. Applicable Law; Waiver of Jury Trial. (a) This Agreement
shall be governed by and construed in accordance with the laws of the State of
New York without reference to any applicable principles of conflict of laws to
the extent that the application of the laws of another jurisdiction would be
required thereby.
(b) Each party waives, to the fullest extent permitted by applicable
law, any right it may have to a trial by jury in respect of any litigation
arising out of or relating to this Agreement. Each party (i) certifies that
no representative, agent or attorney of another party has represented,
expressly or otherwise, that such other party would not, in the event of
litigation, seek to enforce the foregoing waiver and (ii) acknowledges that it
has been induced to enter into this Agreement by, among other things, the
mutual waivers and certifications set forth in this Section 9.10.
SECTION 9.11. Article and Section Headings. The article, section and
other headings contained in this Agreement are for reference purposes only and
shall not affect the meaning or interpretation of this Agreement.
SECTION 9.12. Termination. This Agreement may be terminated at any time
prior to the Closing (i) by the mutual consent of the Purchaser and the Seller
and (ii) by any party hereto if all of the conditions to the Closing shall not
have been fulfilled or waived (other than as a result of a breach of this
Agreement by the terminating party) and as a result the Closing Date shall not
have occurred on or before January 15, 1997.
SECTION 9.13. Specific Enforcement. Each of the parties hereto
acknowledges and agrees that in the event of any breach of this Agreement, the
non-breaching party would be irreparably harmed and could not be made whole by
monetary damages. It is accordingly agreed that the parties hereto will waive
the defense in any action for specific performance that a remedy at law would
be adequate and that the parties hereto, in addition to any other remedy to
which they may be entitled at law or in equity, shall be entitled to an
injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically the terms and provisions hereof without
the necessity of proving actual damage or securing or posting any bond or
providing prior notice.
SECTION 9.14. Recapitalization, Exchanges, etc., Affecting Securities.
The provisions to this Agreement shall apply, to the full extent set forth
herein with respect to the Securities, to any and all shares of capital stock
of Company or any successor or assign of Company (whether by merger,
<PAGE>
consolidation, sale of assets or otherwise) which may be issued in respect of,
in exchange for, or in substitution of the Securities, by reason of any stock
dividend, stock split, stock issuance, reverse stock split, combination,
recapitalization, reclassification, merger, consolidation or otherwise. Upon
the occurrence of any such events, amounts hereunder shall be appropriately
adjusted if necessary.
IN WITNESS WHEREOF, each party hereto has executed this Agreement as of
the day and year first above written.
PFIZER, INC.
By /s/ Frederick W. Telling
Name: Frederick W. Telling
Title: Vice President
NOUVELLE HOLDING GUYOMARC'H S.A.
By /s/ H. Lagarde
Name: H. Lagarde
Title: Chairman
<PAGE>
Schedule I
<TABLE>
<CAPTION>
Number of Shares Certificate Number Class of Capital Stock Par Value Date
<S> <C> <C> <C> <C>
1. 604,774 OF-0066 Common $.01 3-11-92
2. 250,000 OF-0611 Common $.01 8-11-94
</TABLE>
<PAGE>
Schedule II
<TABLE>
<CAPTION>
Number of Shares Certificate Number Original Purchase
Date
<S> <C> <C>
604,774 OF-0066 3-11-92
250,000 OF-0611 8-11-94
99,271 OF-1273 8-8-95
</TABLE>
<PAGE>
AGREEMENT, dated as of December 30, 1996 by and between Opta Food
Ingredients, Inc. (the "Company") and Nouvelle Holding Guyomarc'h S.A. (the
"Purchaser").
WHEREAS, simultaneously with the execution of this Agreement, the
Purchaser has entered into a Securities Purchase Agreement, dated as of the
date hereof, by and between the Purchaser and Pfizer, Inc. ("Pfizer"),
pursuant to which, the Purchaser will purchase 854,774 shares of common stock
of the Company (the "Shares") from Pfizer (the "Securities Purchase
Agreement");
WHEREAS, in connection with the Securities Purchase Agreement, the
Purchaser seeks certain representation on the Board of Directors of the
Company (the "Board") and the Company seeks to subject the Purchaser to
restrictions with respect to its ownership of common stock of the Company,
both as hereinafter provided;
NOW, THEREFORE, in consideration of the premises and the respective
agreements hereinafter set forth, the parties hereto agree as follows:
1. Board Representation. (a) As soon as practicable after January 7, 1997
but in any event no later than January 31, 1997 (the "Appointment Date"), the
Company hereby agrees that it will take all necessary action (including
without limitation, increasing the number of directors of the Company) to
ensure that a person designated by the Purchaser (the "Designee") is appointed
to serve on the Board until the next annual meeting of stockholders of the
Company. In addition, the Board shall nominate the Designee for election as a
director at the next annual meeting of stockholders of the Company to serve
until at least one year after the Appointment Date (the "Appointment Term").
The Company agrees to solicit proxies from its stockholders for the Designee
and to vote all management proxies in favor of the Designee except for such
proxies that specifically indicate to the contrary.
(B) If any director of the Company recommended by the Purchaser shall
cease to be a director of the Company for any reason whatsoever (except
because of the request of Purchaser), the Board shall promptly elect another
person recommended by the Purchaser to replace such director for the remaining
portion of the Appointment Term.
2. Standstill Provisions (a) For a period of one year after the date
hereof, without the prior written consent of the Company, neither the
Purchaser nor any of its subsidiaries will:
(i) acquire shares of common stock of the Company to the extent
that after giving effect to such acquisition, the Purchaser
would beneficially own more than 15% of the Company's
outstanding shares of common stock; or
(ii) solicit proxies from shareholders of the Company.
3. Legends. At the Purchaser's request, the Company shall deliver in
substitution for the certificates representing the Shares new certificates
free of restrictive Securities Act legends representing the Shares, to the
<PAGE>
extent the Purchaser has sold the Shares in compliance with Rule 144 or
satisfies the conditions of Rule 144(k) and the Purchaser provides to the
Company such evidence as the Company may reasonably request as to such facts.
Furthermore, the Company hereby agrees that three months after the later of
the resignation of the Designee from the Board or the expiration of the
Appointment Term and so long as the Purchaser is not otherwise then an
affiliate (within the meaning of Rule 144), the Shares represented by
certificate number OF-0066 shall be freely transferable without registration
under the securities laws, and the Shares represented by certificate number
OF-0611 shall, subject to the same condition and assumption, be freely
transferable without registration under the securities laws, on August 11,
1997.
4. Specific Enforcement. Each of the parties hereto acknowledges and agrees
that in the event of any breach of this Agreement, the non-breaching party
would be irreparably harmed and could not be made whole by monetary damages.
It is accordingly agreed that the parties hereto will waive the defense in any
action for specific performance that a remedy at law would be adequate and
that the parties hereto, in addition to any other remedy to which they may be
entitled at law or in equity, shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically the terms and provisions hereof without the necessity of
proving actual damage or securing or posting any bond or providing prior
notice.
* * * * *
<PAGE>
IN WITNESS WHEREOF, each party hereto has executed this Agreement as of
the day and year first above written.
OPTA FOOD INGREDIENTS, INC.
By /s/ Lew Paine
Name: Lew Paine
Title: CEO
NOUVELLE HOLDING GUYOMARC'H S.A.
By /s/ H. Lagarde
Name: H. Lagarde
Title: Chairman
<PAGE>
EXHIBIT 3
JOINT FILING AGREEMENT
Pursuant to paragraph (iii) of Rule 13d-1(f) (1) promulgated by the
Securities and Exchange Commission (the "Commission") under the Securities
Exchange Act of 1934, as amended, each of the undersigned hereby agrees that
the statement on Schedule 13D to which this Agreement shall be attached as an
exhibit, including all amendments thereto, shall be filed with the Commission
on behalf of each of the undersigned.
Dated: January 8, 1997
COMPAGNIE FINANCIERE
DE PARIBAS
By: /s/ A. D. de Seze
Name: A. D. de Seze
Title: Member of the Board of Management
NOUVELLE HOLDING GUYOMARC'H S.A.
By: /s/ H. Lagarde
Name: H. Lagarde
Title: Chairman
