SEC Info℠

Home

Search

My Interests

Help

Sign In

Please Sign In

Umami Sustainable Seafood Inc. – ‘8-K’ for 11/14/14 – EX-2.1

On:  Monday, 11/24/14, at 1:06pm ET   ·   For:  11/14/14   ·   Accession #:  1144204-14-70610   ·   File #:  0-52401

Previous ‘8-K’:  ‘8-K’ on 6/13/14 for 6/6/14   ·   Latest ‘8-K’:  This Filing

in

this entire Filing. an “Entity” Search.

Show

Documents searched

and

each “hit”. the 1st “hit”.

↓↑Hints

 Text Wildcards:  ? (any letter/digit),  * (many).  Search Logic:  for Documents:  & (and),  | (or);  for Text:  | (anywhere),  "(&)" (near).  Details... 

  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

11/24/14  Umami Sustainable Seafood Inc.    8-K:1,9    11/14/14    2:327K                                   Vintage/FA

Document/Exhibit                   Description                      Pages   Size 

 1: 8-K         Current Report                                      HTML     13K 
 2: EX-2.1      Plan of Acquisition, Reorganization, Arrangement,   HTML    182K 
                          Liquidation or Succession                              

Exhibit 2.1

AGREEMENT ON PURCHASE OF SHARES OF

KALI TUNA d.o.o.

by and between

BAJA AQUA-FARMS S.A. DE C.V.

as seller

and

J-TRADING, INC.

as purchaser

dated 14 November 2014

1

TABLE OF CONTENTS

Schedule 1 – Accounts and Subsidiary Accounts

Schedule 2 – Agreement on Transfer of Shares Template

Schedule 3 – Resignation Letter Template

Schedule 4 – Litigation

Schedule 5 – Business Indicators

Schedule 6 – Management Plan

Schedule 7 – Pledge Release Statement

Schedule 8 – Seller's Claim Statement

Schedule 9 – Key Personnel Contracts

Schedule 10 – Intentionally Left Out

Schedule 11 – Sale Agreements

Schedule 12 – English version of the Share Purchase Agreement

THIS AGREEMENT ON PURCHASE OF SHARES OF KALI TUNA d.o.o. (hereinafter referred to as: the “Agreement”)

IS ENTERED BY AND BETWEEN:

BAJA AQUA-FARMS S.A. DE C.V., with the address at Seis 160 Parque Industrial Fondeport El Sauzal, Ensenada, Baja California 22760, Mexico, registered with the Registro Publico De la Propiedad Y De Comercio Del Estado Del Baja California under registry number 7599 3, represented by Mr Timothy Fitzpatrick, (hereinafter referred to as: the “Seller”)

and

J-TRADING, INC., with the address at 2-1-1, Marunouchi, Chiyoda-ku,, Tokyo, registered with the Commercial Office in Tokyo under the registry number 0100-01-163751, represented by Mr Jiro Kambe (hereinafter referred to as: the “Purchaser”)

with

INTEGRAL PARTNERS CORPORATION registered with the Commercial Office in Tokyo under the registry number 0100-01-144777, represented by Mr. Reijiro Yamamoto (hereinafter referred to as: the “Sponsor”)

(the Seller and the Purchaser hereinafter sometimes collectively referred to as the “Parties” or individually as the “Party”)

RECITALS:

Whereas:

(hereinafter collectively referred to as the “Shares” or individually as the “Share”)

(hereinafter collectively referred to as the “Subsidiary Shares” or individually as the “Subsidiary Share”).

NOW, THEREFORE, in consideration of the mutual promises herein contained, the Parties have agreed as follows:

In this Agreement, the Parties agree that, unless it is expressly provided otherwise or the context otherwise requires:

In this Agreement the following capitalized words shall have the following meanings:

“Accounts” means the audited consolidated annual accounts of the Company consisting of a balance sheet as of the Last Accounting Date and a profit and loss account for the period ending on the Last Accounting Date, together with the explanatory notes thereto, prepared in accordance with the applicable financial reporting standards, to which a qualified audit company acting as a Company's auditor issued an unqualified audit opinion, attached in the Schedule 1;

“Affiliate” means, in relation to any Party to this Agreement, any other person or legal entity that, directly or indirectly, controls, is controlled by or is under common control with, such person or legal entity, any subsidiary of the shareholders or company controlled or owned by the shareholders; for the purposes of this definition, the term “control” as applied to any person means the possession, directly or indirectly, of any of the following: (i) ownership of more than half of the capital or business assets, or (ii) the right to exercise more than half of the voting rights, or (iii) the right to appoint more than half of the members of the board of directors or other statutory bodies legally representing such person, or (iv) the right to materially influence the management of such person. Specifically, with respect to the Seller, the term Affiliate should in particular include the following entities: Umami and Bluefin Acquisition Group;

“Agreement” means this agreement, including its Preamble, Recitals and Schedules thereto;

“Agreement on Transfer of Shares” means a Croatian public notary agreement duly executed by the Seller and the Purchaser transferring the ownership of and title to the Shares from the Seller to the Purchaser, substantially in the form as attached hereto as Schedule 2;

“Auditor” means PricewaterhouseCoopers d.o.o. za reviziju i konzalting having its registered office at Zagreb, Croatia, registered with the Court Registry of the Commercial Court in Zagreb under the number MBS: 080238978, OIB: 81744835353;

“Business Day” means any day other than Saturday or Sunday or a public holiday in Croatia or Japan;

“Cash” means the aggregate amount of any liquid funds and equivalents of the Company with banks and financial institutions, indicated as of the date of Signing in Schedule 5 (Business Indicators);

“Closing” means the completion of the sale and purchase of the Shares in accordance with Section 6 hereto;

“Closing Date” means the date on which Closing occurs;

“Commercial Register” means the Court Register of the Commercial Court in Zadar keeping the corporate records for the Company;

“Company” means KALI TUNA d.o.o. is a limited liability company duly organized and existing under the laws of Croatia, having its registered office at Put Vele Luke 70, Kali, Croatia, registered with the Court Registry of the Commercial Court in Zadar under the number 060004899, OIB: 92418838517;

“Conditions Precedent” means all the conditions listed in Clause 5.1;

“Data Room” means the data room prepared and maintained by the Company in a physical form made available to the Purchaser, through which the Purchaser and its representatives and advisors had the right of access to documents and information in respect of the Company;

“Data Room Disclosures” means (i) Due Diligence Documents and (ii) all and any information made available to the Purchaser, in writing or by e-mail correspondence, during the sale process before signing of this Agreement, including, but not limited to, all documents made available in the Data Room;

"Dispute" means any dispute that the Company or its Subsidiaries are included in, as disclosed in Schedule 4;

“Due Diligence Documents” means the documentation made available and disclosed to the Purchaser and/or its representatives by the Company (and its representatives) either in writing or by e-mail correspondence, or in the Data Room as part of and during the Purchaser’s due diligence with respect to the Company;

“Encumbrances” means any and all actual or contingent encumbrances, mortgages, charges, liens, pledges, security interests, rights of first refusal or pre-emptive rights, usufructs, options and any other right of any legal entity or person, of whatsoever kind and howsoever arising, which is burdening any right, title or asset;

“EUR” means Euro, the single currency introduced in the member states of the European Communities that adopted such single currency at the start of the third stage of the European Economic and Monetary Union pursuant to the Treaty establishing the European Community, as amended;

“Force Majeure” means any external and extraordinary circumstances not existing at the time of execution of this Agreement, which could not have been foreseen and which occurred beyond the will and influence of either Party, and whose existence, course and consequences could not have been prevented by any measures, means, actions or omissions, which in the particular interaction of circumstances and the existing actual situation, could have reasonably been expected from the Party affected by force majeure, and which prevent the timely fulfilment of a part or all of the obligations of a Party hereunder. The term “Force Majeure” shall be deemed to include events such as natural catastrophes, including fires, earthquakes, volcano eruptions, storms or floods, acts of a government or similar authority, lockouts or trade union strikes not organized or initiated in consequence of actions or omissions of either Party, explosions, accidents, power failures, significant political or social disorders such as riots, as well as, terrorist acts or declared or undeclared war, provided such event is the cause for a Party’s non-performance of its obligations under this Agreement;

“HRK” means Croatian Kuna, the lawful currency of the Republic of Croatia;

“Intellectual Property Rights” means all (a) inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and all patents, patent applications and patent disclosures, revisions and extensions thereof, (b) trademarks, service marks, industrial designs, product names and designations, logos, trade names and corporate names, together with all translations, adaptations, derivations and combinations thereof and including all goodwill associated therewith, and all applications, registrations and renewals in connection therewith, (c) utility models, utility model applications and all registrations and renewals in connection therewith, (d) copyrightable works, all copyrights and all applications, registrations and renewals in connection therewith, (e) URLs, websites and domain names, and (f) trade secrets;

“Interest Bearing Debt” means all outstanding financial debt of the Company under loan or leasing agreements with banks or other creditors, including accrued and unpaid interest and penalties on the same, factoring, overdue payables, as well as liabilities that may arise for the Company acting as guarantor, co-debtor or security provider for debts of any other person, and reduced by overdue receivables;

"Interim Period" means the period between the signing and Closing of this Agreement;

“Key Personnel” means the personnel referred to in Schedule 9;

“Last Accounting Date” means 31 December 2013;

“Long Stop Date” means 31 March 2015 as the final deadline for the Closing to occur. The Parties may postpone the Long Stop Date by an agreement in writing at any time prior to the Long Stop Date;

“Management Plan” means the business plan prepared by the Company, indicating, inter alia, the business and revenue projections for the Company over the financial years 2014/2015, 2015/2016 and 2016/2017, enclosed hereto as Schedule 6;

“Material Adverse Effect” means the occurrence within the period from the date of signing of this Agreement up to the Closing Date of any of the following events or series of events, which has a material adverse effect on the financial condition, assets, business or operations of the Company, and in particular: (a) any administrative authority or court declaring or issuing a ruling to the effect that the Company is not authorized under Croatian laws to engage in a material portion of its core activities under the relevant applicable laws in force and effect; or (b) the issuance of a decision by any bankruptcy court having jurisdiction over the Company, for opening of insolvency proceedings for the Company or declaring that the Company is bankrupt or insolvent or appointing an insolvency administrator or similar official for the Company;

"Pledges" means (i) the pledge over the Shares in favour of Lisbeth Holdings under the Share Pledge Agreement dated 3 September 2013, as a collateral for Lisbeth Holdings' claim towards the Seller in the amount of USD 7,000,000 plus costs and expenses, as registered in the Share Register, and (ii) any pledge over the Shares in favour of Amerra Capital Ltd;

“Purchase Price” means JPY 1,200,000,000 (one billion and two hundred million Japanese Yen). Purchase Price is subject to the assumptions listed in Clause 3.2;

"Relevant Authority" means any international, national, federal, regional, state, local or other governmental body, agency, instrumentality, commission, department, court, judicial or quasi-judicial tribunal, ministry, regulatory, self-regulatory, or similar authority or organization, including institutions, directorates, agencies and other organizational units of the European Union and the United Nations;

“Representations and Warranties” means the statements of representations and warranties of the Sellers set forth in Section 9 hereto;

"Sale Agreements" means the agreements on sale of fish, concluded between the Company and its customers, as set out in Schedule 11;

“Signing Date” means 14 November 2014;

“Shares” means all shares in the Company, in the aggregate nominal amount of HRK 20,110,000 (twenty million one hundred ten thousand Croatian Kunas), representing 100% (one hundred percent) of the registered share capital of the Company, as described in Recital (C) hereof and as identified in the Share Register;

“Share Register” means the share register representing a record of the shareholders and the disposals with Shares kept by the Company;

“Schedules” means schedules to this Agreement;

“Standstill Period” means the period between 31 March 2014 and the Signing Date;

"Subsidiary" means MB Lubin d.o.o., a limited liability company duly organized and existing under the laws of Croatia, having its registered office at Put Vele Luke 70, Kali, Croatia, registered with the Court Registry of the Commercial Court in Zadar under the number 060074348, OIB: 72633995497;

“Subsidiary Accounts” means the consolidated annual accounts of the Subsidiary consisting of a balance sheet as of the Last Accounting Date and a profit and loss account for the period ending on the Last Accounting Date, together with the explanatory notes thereto, prepared in accordance with the applicable financial reporting standards;

“Subsidiary Shares” means all shares in the Subsidiary, in the aggregate nominal amount of HRK 20,000 (twenty thousand Croatian Kunas), representing 100% (one hundred percent) of the registered share capital of the Subsidiary, consisting of 4 (four) shares as described in Recital (D) hereof;

“Tax” includes all forms of taxation whether direct or indirect and whether levied by reference to income, profits, gains, net wealth, asset values, turnover, added value or other reference and whenever and wherever imposed (whether imposed by way of a withholding or deduction) and in respect of any person (without limitation) corporation tax, including instalment payments in respect of corporation tax, advance corporation tax, profit tax, income tax, capital gains tax, value added tax, excise duties, social and health contributions, city surtaxes, customs and other import duties, inheritance tax, national insurance contributions, local authority council taxes, property transfer tax, withholding tax, foreign taxation and duties, and any payment whatsoever which the Company may be or become bound to make as a result of the operation relating to any such taxes or duties and all penalties, charges and interest relating to any of the foregoing or resulting from a failure to comply with the provisions of any enactment relating to taxation;

"Umami" means Umami Sustainable Food Inc., a company duly organized and existing under the laws of the State of Nevada, U.S.A , having its registered office at 1230 Columbia Street Suite 440, San Diego, CA 92101, USA;

"Intercompany Debt" means any debt owed by the Company to any Umami group company;

"Umami Shares" means the 7,980,000 (seven million nine hundred eighty thousand) shares of Umami Sustainable Food Inc., currently owned by the Company;

“USD” means the U.S. dollar, the lawful currency of the United States of America;

“Working Capital” is defined as follows: the monetary value of the Company’s Receivables + Inventories + Short-Term Liabilities (excluding Liabilities to banks and other financial institutions), indicated as of the date of Signing in Schedule 5 (Business Indicators).

During the Standstill Period:

During the Standstill Period:

BAJA AQUA-FARMS S.A. DE C.V.

J-TRADING, INC.

INTEGRAL PARTNERS CORPORATION

In witness whereof this Agreement has been duly executed as of the date first above written:

List of Omitted Schedules

Pursuant to Item 601(b)(2) of Regulation S-K, the following schedules to the Purchase Agreement have been omitted from this Exhibit 2.1:

Schedule 1 – Accounts and Subsidiary Accounts

Schedule 2 – Agreement on Transfer of Shares Template

Schedule 3 – Resignation Letter Template

Schedule 4 – Litigation

Schedule 5 – Business Indicators

Schedule 6 – Management Plan

Schedule 7 – Pledge Release Statement

Schedule 8 – Seller's Claim Statement

Schedule 9 – Key Personnel Contracts

Schedule 11 – Sale Agreements

Schedule 12 – English version of the Share Purchase Agreement

Any omitted schedule will be furnished supplementally to the SEC upon request.