Execution Copy
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT ("Agreement") is made and entered into as
of the 11th day of February, 1998, by and between BUNGE FOODS CORPORATION, a
Delaware corporation with its executive offices at 3701 Algonquin Road, Suite
360, Rolling Meadows, Illinois 60008 ("Buyer"), AU BON PAIN CO., INC., a
Delaware Corporation with its executive offices at 19 Fid Kennedy Avenue,
Boston, Massachusetts 02210 ("Au Bon Pain"); and ABP MIDWEST MANUFACTURING CO.,
INC., a Delaware corporation with its executive offices at 19 Fid Kennedy
Avenue, Boston, Massachusetts 02210 ("Seller").
W I T N E S S E T H:
WHEREAS, Seller and its affiliate, Saint Louis Bread Company, Inc., a
Delaware corporation ("Saint Louis Bread"), are wholly-owned subsidiaries of Au
Bon Pain; and
WHEREAS, Seller is the owner and operator of a bakery products
manufacturing facility (as more specifically defined herein, the "Plant")
located in Mexico, Missouri, where it manufactures bakery products for
distribution to the bakery/cafe retail outlets owned and franchised by Au Bon
Pain and Saint Louis Bread, and for wholesale distribution into certain markets;
and
WHEREAS, Seller desires to sell, transfer, assign and convey to Buyer,
and Buyer desires to purchase from Seller, the Plant and certain of Seller's
assets associated with the Plant and the operation of Seller's wholesale
business at the Plant, for a cash payment, all upon and subject to the terms,
conditions, and covenants herein set forth; and
WHEREAS, as a material inducement to Seller and Au Bon Pain, and as a
condition (among others) for Seller's and Au Bon Pain's agreement to enter into
this Agreement and to sell the Plant and other assets related to the Plant and
the operation of Seller's wholesale business at the Plant upon such terms,
conditions and covenants, Buyer has agreed to enter into separate supply
agreements with each of Au Bon Pain and Saint Louis Bread providing for the
manufacture and sale of bakery products to Au Bon Pain, Saint Louis Bread, and
their respective franchise systems through their distributors (each a "Supply
Agreement"); and
WHEREAS, as a material inducement to Buyer, and as a condition (among
others) for Buyer's agreement to enter into this Agreement and to purchase the
Plant and other assets related to the Plant and the operation of Seller's
wholesale business at the Plant upon such terms, conditions and covenants, Au
Bon Pain and Saint Louis Bread have each agreed to enter into their respective
Supply Agreements.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
legal sufficiency of which are hereby acknowledged, the parties hereto, each of
them intending to be legally bound, hereby agree as follows:
ARTICLE 1
TERMS OF SALE
1.1 Purchase and Sale of Assets. Subject to the terms and conditions
hereof, at the Closing (as defined in Section 8.1), Seller or Au Bon Pain, as
applicable, shall sell to Buyer, and Buyer shall purchase and accept delivery
and conveyance from Seller or Au Bon Pain, as applicable of, all of the
following assets of Seller or Au Bon Pain, as applicable (collectively, the
"Assets"):
(a) The real property and improvements located in the City of Mexico,
County of Audrain, Missouri, as more particularly described in Schedule 1.1(a),
together with all rights, privileges, rights of way and easements appurtenant to
such premises, whether recorded or unrecorded, whether currently open or used,
including, without limitation, rights to all minerals, oil or gas on or under
such premises, development rights, air rights, water rights and any easements,
rights of way or other interests in, on, or under any land, highway, alley,
street, passage or right of way abutting or adjoining such premises and all
fixtures, machinery, equipment and conduits providing fire protection, security,
heat, exhaust, ventilation, air conditioning, electricity, lighting, plumbing,
gas, sewer and water at the location of such premises and all use permits and
zoning variances (collectively, the "Real Property");
(b) All items of tangible personal property owned by Seller and located
at the Plant and used or usable in connection with the ownership or operation of
the Plant and the operation of Seller's wholesale business at the Plant,
including, without limitation, all improvements, furniture, furnishings,
fixtures, computer hardware and software, equipment, machinery, apparatus,
appliances, storage containers, tools, dies, jigs and related spare parts and
all supplies, together with all manuals, written warranties, licenses and other
similar documents relating thereto (collectively, the "Personal Property") (the
Personal Property and the Real Property are referred to herein collectively as
the "Plant");
(c) All inventory of raw materials, work-in-process, packaging,
shipping materials, finished goods and supplies related to the operation of the
Plant and the operation of Seller's business at the Plant (collectively,
"Inventories");
(d) All notes receivable and trade accounts receivable arising out of
the operation of Seller's wholesale business at the Plant, except as provided in
Section 1.2(a) (collectively, the "Receivables");
(e) The prepaid expenses, deposits and rights to credits or refunds
described on Schedule 1.1(e) (collectively, the "Prepaid Expenses");
(f) All right, title and interest in and to the leases related to the
operation of the Plant and the operation of Seller's wholesale business at the
Plant which are described on Schedule 1.1(f) (collectively, the "Leases");
(g) All right, title and interest in and to the contracts related to
the operation of the Plant and the operation of Seller's wholesale business at
the Plant which are described on Schedule 1.1(g) (collectively, the "Contracts",
together with the Leases, the "Assumed Contracts");
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(h) The recipes, formulas, product specifications, operating standards,
and preparation procedures for those products marketed and sold by Seller in
connection with its wholesale business which are described on Schedule 1.1(h)
(collectively, the "Wholesale Products");
(i) All designs, models, prototypes, plans, specifications, engineering
and other drawings and everything related thereto; all sales materials,
catalogs, advertising, marketing and promotional materials; all customer and
supplier lists, mailing lists; and copies of sales records, account histories,
correspondence with customers, and records of purchases from correspondence with
suppliers (collectively, the "Intangibles");
(j) The Missouri Enterprise Zone Tax Incentives listed on Schedule
1.1(j) attached hereto, to the extent transferable by Buyer; and
(k) The wholesale business as a going concern, including all
transferable government permits, including the goodwill thereof.
1.2 Excluded Assets. Any provision of this Agreement to the contrary
notwithstanding, Buyer shall not purchase, and Seller shall not sell, any right,
title or interest of Seller in and to the following (collectively, the "Excluded
Assets"):
(a) Any accounts receivable due from any affiliate of Seller or from
any Distributor (as such term is defined in the Supply Agreement), or any
receivable that is in dispute or is more than 90 days past its due date at the
time of the closing;
(b) Any item of tangible personal property which consists of
copyrighted material, or bears any trademark or service mark, of Au Bon Pain or
Saint Louis Bread, including without limitation, any sales and marketing
material or packaging, unless such material is used as permitted in the Supply
Agreements or the Manufacturing Licenses entered into pursuant to (and as
defined in) Section 7.1;
(c) The assets which are specifically identified on Schedule 1.2(c);
and
(d) Any prepaid expense associated with any Assumed Contract which
Assumed Contract is not assigned to Buyer.
1.3 Purchase Price; Payment.
(a) The aggregate consideration for the sale of the Assets, and the
performance and fulfillment of the other terms, conditions and covenants of this
Agreement shall be the sum of the net book value of the Assets as reflected on
Seller's books and records on the Closing Date (as defined in Section 8.1) plus
One Million Dollars ($1,000,000) (the "Purchase Price"), and the assumption by
Buyer of the Assumed Liabilities (as defined in Section 1.5). The net book value
of the Assets shall be determined in accordance with generally accepted
accounting principles consistently applied ("GAAP"); provided, however, that (1)
notwithstanding Seller's practice of recording Inventories on its books, the net
book value of the Inventories shall be determined in
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accordance with GAAP with all costs fully absorbed; and (2) no reserve for
doubtful accounts shall be included in determining the net book value of the
Assets.
(b) Three (3) business days prior to the Closing Date, Seller shall
deliver to Buyer a statement of the estimated net book value of the Assets as of
the Closing Date (the "Estimated Net Book Value"). The Purchase Price shall be
paid in full by Buyer at the Closing based on the Estimated Net Book Value in
lawful currency of the United States of America by wire transfer of immediately
available funds to an account designated by a written notice from Seller to
Buyer which notice shall be delivered to Buyer not less than three (3) days
prior to the Closing.
(c) Within thirty (30) days after the Closing Date, Seller shall
prepare and deliver to Buyer a proposed final statement of the net book value of
the Assets as of the Closing Date (the "Final Net Book Value"). Buyer shall have
thirty (30) calendar days to review Seller's proposed statement of the Final Net
Book Value. If Buyer disputes any item included in such statement, it shall,
within such thirty (30) day period, provide Seller with a written notice
specifying in reasonable detail such item(s) of dispute. Buyer and Seller shall
attempt in good faith to resolve by mutual agreement the item(s) in dispute
within thirty (30) calendar days (the "Resolution Period") immediately following
the delivery of such written notice. If any of the item(s) in dispute are not
resolved within the Resolution Period, the parties shall submit the dispute(s)
for resolution to Arthur Andersen, LLP, or such other so-called "Big Six"
accounting firm mutually agreed upon by Buyer and Seller (the "Arbitrator"),
whose decision shall be final and binding on the parties, and when made, shall
be deemed to be an agreement between the parties on the issues so determined.
The expense of the Arbitrator shall be borne equally by the parties.
(d) If the Final Net Book Value, as finally determined pursuant to
Section 1.3(c), exceeds the Estimated Net Book Value, then Buyer shall pay
Seller the amount of such excess within five (5) business days after the date of
final determination. If the Final Net Book Value, as finally determined pursuant
to Section 1.3(c), is less than the Estimated Net Book Value, then Seller shall
pay, and Au Bon Pain shall cause Seller to pay, Buyer the amount of such
difference within five (5) business days after the date of final determination.
1.4 Apportionment of Taxes and Other Charges.
All normal and customarily apportioned items including without
limitation, real estate and personal property taxes and assessments, and utility
bills, shall be prorated between the parties as of the Closing Date.
1.5 Assumption of Certain Liabilities.
At the Closing and subject to the terms and conditions of this
Agreement, Buyer shall assume, pay or discharge the liabilities and obligations
of Seller under the Assumed Contracts and those specified on Schedule 1.5 (such
liabilities and obligations are referred to herein, collectively, as the
"Assumed Liabilities"). Except for the Assumed Liabilities, Buyer shall not
assume or be deemed to assume or become liable for, and Seller shall remain
liable for and hold Buyer harmless against, any other liabilities, debts,
contracts, commitments or obligations of Seller, whether the same are known or
unknown, liquidated or unliquidated, insured or uninsured, existing, contingent
upon future events or circumstances, accrued, funded, unfunded or otherwise.
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1.6 Form of Conveyance.
(a) The Real Property shall be conveyed at the Closing in fee simple
absolute, by a good and sufficient general warranty deed (the "Deed"), to Buyer
and shall convey a good and clear record and marketable title to the Real
Property, free from all Liens, tenants and occupants from or on the Real
Property except for those matters listed on Schedule 1.6(a). The Deed shall be
in proper form for recording and shall be duly executed, acknowledged and
delivered by Seller, together with all necessary or applicable conveyance and
transfer tax forms and checks in payment of all conveyance and transfer taxes.
Acceptance and recording of the Deed at the Closing by Buyer shall constitute
satisfaction of the terms and conditions of this Section 1.6(a).
(b) All Assets not described in Section 1.6(a) shall be conveyed at the
Closing free of all Liens by a bill of sale and assignment (the "Bill of Sale")
in substantially the form attached hereto as Exhibit 1.6(b) to be delivered by
Seller to Buyer at Closing.
1.7 Tax Allocation.
For all federal, state and local tax purposes, the Purchase
Price shall be allocated among the various items in the manner indicated in
Schedule 1.7. Neither Seller nor Buyer shall file any Return (as defined in
Section 2.11) or report or take any position with any taxing agency or authority
that is inconsistent with the such allocation, except to the extent required by
a court of law or an appropriate taxing agency or authority in a determination
binding upon either such party; provided, however, that such party provides
reasonable written notice and opportunity to the other party, at such other
party's sole cost and expense, to contest and appeal such determination on
behalf of both parties, and such determination nevertheless becomes final.
1.8 Collection of Receivables.
(a) At the Closing, Seller shall deliver to Buyer a listing of all
Receivables (including debtor and aging information) reflected on the books and
records of Seller as of the Closing Date certified as true and accurate by an
authorized officer of Seller. From and after the Closing, Buyer shall have the
right and authority to collect for its own account all Receivables and to
endorse, until such Receivables may be reassigned to Seller pursuant to Section
1.8(b), the name of Seller on any checks or drafts received with respect to any
such Receivables, and Seller and Au Bon Pain each agrees to deliver promptly to
Buyer any payments received by Seller and Au Bon Pain, as the case may be, with
respect to the Receivables, and to instruct account debtors to forward payments
to Buyer. Buyer shall deliver promptly to Seller any payments received by Buyer
with respect to the receivables not purchased by Buyer. If any Receivable is to
be collected through a draw on a letter of credit or similar instrument issued
for the account of any customer, Seller shall cooperate with Buyer to assign all
of Seller's rights under such letter of credit or other instrument, where
permitted, or otherwise to ensure that Buyer obtains the benefit of the proceeds
of such letter of credit or other instrument.
(b) If Buyer has not received payment of any such Receivable within
ninety (90) calendar days of its due date, Seller will pay, and Au Bon Pain will
cause Seller to pay, to Buyer such uncollected amount on demand, but in no case
shall such demand be made later than one hundred ten (110) business days after
the Closing Date. Upon receipt of payment of any such Receivable from Seller,
Buyer shall assign to Seller any such Receivable for collection without
recourse.
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Payments received by Buyer which are not designated as applicable to a
specific invoice shall be applied to unpaid invoices chronologically beginning
with payment of the oldest invoice first. Buyer shall use reasonable collection
efforts with respect to the Receivables after the Closing Date, consistent with
its collection practice for its accounts receivable generally, until the
uncollected Receivables are reassigned to Seller. Buyer shall deliver promptly
to Seller any payments received by Buyer with respect to any reassigned
Receivables.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller and Au Bon Pain represent and warrant jointly and severally to
Buyer that:
2.1 Organization and Good Standing.
(a) Seller is duly organized and is validly existing as a corporation
in good standing under the laws of the State of Delaware with full corporate
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. Seller is duly qualified to do business as a
foreign corporation and is in good standing under the laws of each state or
jurisdiction in which either the ownership or use of the properties owned or
used by it, or the nature of the activities conducted by it, require such
qualification. Seller has all requisite power and authority to own, lease and
operate the Assets and to carry on the business at the Plant as currently
conducted.
(b) Au Bon Pain is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware with full
corporate power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. ABP Midwest is a wholly-owned subsidiary of Au
Bon Pain. Au Bon Pain is duly qualified to do business as a foreign corporation
and is in good standing under the laws of each state or jurisdiction in which
either the ownership or use of the properties owned or used by it, or the nature
of the activities conducted by it, require such qualification.
2.2 Execution and Delivery; No Conflicts.
(a) All consents, approvals, authorizations and orders necessary for
the execution, delivery and performance by Seller and Au Bon Pain of their
respective obligations hereunder, other than as described in Schedule 2.2(a),
have been obtained. This Agreement and each other agreement, instrument or other
document to which either or both of them are a party and which is required to be
executed by either or both of them hereunder (collectively, the "Other
Agreements") has been duly authorized by all necessary corporate action on the
part of Seller and Au Bon Pain and has been duly executed and delivered by
Seller and Au Bon Pain and constitutes the legal, valid and binding obligation
of Seller and Au Bon Pain enforceable against each of them in accordance with
its terms, except to the extent that (i) such enforcement is subject to or
limited by bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally; and (ii) the remedy of specific performance and
injunctive and other forms of equitable remedies is subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
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(b) Upon receipt of the consents, approvals, authorizations and orders
referred to in Schedule 2.2(a), the execution, delivery and performance of this
Agreement and the Other Agreements by Seller and Au Bon Pain and the
consummation of the transactions contemplated hereby by Seller and Au Bon Pain
will not: (i) conflict with or result in a breach or violation of any term or
provision of, or (with or without notice or passage of time, or both) constitute
a default under, or otherwise give any person a basis for nonperformance under,
any indenture, mortgage, deed of trust, loan or credit agreement, lease, license
or other agreement or instrument to which Seller or Au Bon Pain is a party or by
which Seller or Au Bon Pain is bound or to which any of the Assets or Assumed
Contracts is subject; (ii) result in the violation of the provisions of the
Certificate of Incorporation or Bylaws of Seller or Au Bon Pain, in each case as
amended, or any judgment, order, writ, injunction or decree of any court or any
arbitrator having jurisdiction over Seller or Au Bon Pain or any of the Assets
or any applicable law or regulation; or (iii) result in the creation or
imposition of any Lien upon any of the Assets.
2.3 Title to Assets; Encumbrances.
(a) Seller or Au Bon Pain, as applicable, has good title to the
Personal Property, Inventories, Receivables, Prepaid Expenses, Wholesale
Products and Intangibles, and has valid leasehold interests and contract rights
as to any leased personal property covered by the Assumed Contracts, in each
case free and clear of all Liens (as hereinafter defined) except (i) as set
forth on Schedule 2.3(a); and (ii) for Permitted Liens (as hereinafter defined).
None of the Assets, whether owned or leased, is subject to any pending, or to
the knowledge of Seller or Au Bon Pain, threatened condemnation proceedings,
special assessments, charges, developer rights or tax deferred financing
districts. The term "Liens," as used in this Agreement, shall mean any and all
liens, mortgages, claims, options, conditional sales agreements, rights of first
refusal, security interests, pledges, deeds of trust, or other charges and
encumbrances. The term "Permitted Liens" as used in this Agreement, shall mean:
(i) liens for ad valorem real or personal property taxes, or assessments, the
payment for which are not yet due or are being contested in good faith by
appropriate proceedings which are disclosed on Schedule 2.3(a); (ii) liens in
respect of pledges or deposits under workers' compensation laws or similar
legislation, carriers', laborers' and materialmen's and similar liens if the
obligations secured by such liens are not then delinquent or are being contested
in good faith by appropriate proceedings which are disclosed on Schedule 2.3(a).
(b) Schedule 2.3(b) sets forth a Property and Equipment Report of
Seller dated as of December 27, 1997. Except as disclosed on Schedule 2.3(b),
the items of Personal Property listed on Schedule 2.3(b) and the equipment
covered by the Leases are in normal operating condition, subject only to
reasonable wear and tear, and, to the best of Seller's and Au Bon Pain's
knowledge, are not in need of maintenance and repairs, except for ordinary and
routine maintenance and repairs.
(c) With respect to each of the Assumed Contracts: (i) each such
Assumed Contract is valid, existing and effective in accordance with its terms;
(ii) no act or event has occurred which, with notice or lapse of time, or both,
would constitute a default under such Assumed Contract by Seller or Au Bon Pain,
or, to the knowledge of Seller or Au Bon Pain, any other party; (iii) neither
Seller nor Au Bon Pain has given or received any notice of cancellation or
termination in connection with such Assumed Contract; (iv) except as set forth
on Schedule 2.3(c), each such Assumed Contract will not require consents of the
other parties thereto in order to be assigned to
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Buyer hereunder. True and complete copies of all Assumed Contracts shall be
provided to Buyer prior to the closing.
(d) Neither Seller nor Au Bon Pain has received notice of violation of,
and to the knowledge of Seller and Au Bon Pain, Seller or Au Bon Pain, as
applicable, is in compliance with all applicable material building, zoning, land
use or other similar statutes, laws, ordinances, regulations, permits, health
and safety codes or other requirements in respect of the Plant. There are no
outstanding requirements or recommendations by fire underwriters or rating
boards, any insurance companies or holders of mortgages or other security
interests that have been communicated to Seller or Au Bon Pain within the
current year or the last three (3) full calendar years requiring or recommending
any repairs or work to be performed with reference to the Plant.
(e) The Receivables are valid, existing and represent monies due Seller
as a result of transactions in the ordinary course of business and are for goods
sold or services rendered by Seller.
(f) The Inventories were acquired or produced and have been maintained
in the ordinary course of the business.
(g) Except as disclosed in Schedule 2.3(g): (i) Seller owns, or has the
sole and exclusive right to manufacture and sell, the Wholesale Products; (ii)
the consummation of the sale of the Assets and the other transactions
contemplated by this Agreement will not alter or impair any such rights; and
(iii) none of the Wholesale Products is the subject of a lawsuit or any other
proceeding, nor, within the current year or last three (3) full calendar years
of Seller, has any party challenged or, to the knowledge of Seller and Au Bon
Pain, threatened to challenge Seller's right to manufacture and sell the
Wholesale Products; and, to the knowledge of Seller and Au Bon Pain, there is no
basis for any such challenge.
(h) The Assets constitute all of the assets which Seller requires to
conduct the operation of the business at the Plant as currently conducted.
2.4 Litigation.
Except as set forth on Schedule 2.4: (i) there is no legal
action, suit, arbitration, claim, proceeding or governmental investigation
(whether federal, state, local or foreign) pending for which Seller has received
service of process or, to the best knowledge of Seller and Au Bon Pain,
threatened against Seller relating to the Assets, the operation of the wholesale
business or the products manufactured and sold by Seller; and (ii) there are no
decrees, injunctions or orders of any court, administrative or regulatory body,
arbitration panel or governmental agency outstanding or, to best of Seller's and
Au Bon Pain's knowledge threatened, against Seller relating to any aspect of its
business or any part of the Assets. With respect to any matter required to be
disclosed pursuant to this Section 2.4, there has been no reservation of rights
by any insurance carrier, and no such reservation is, to the knowledge of Seller
or Au Bon Pain, threatened, concerning the coverage of Seller.
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2.5 Permits, Licenses and Certificates.
Seller possesses, and is operating in material compliance
with, the licenses, permits and certificates described on Schedule 2.5 which are
necessary to conduct its business as currently conducted at the Plant (the
"Permits"). Each Permit has been lawfully and validly issued, and no proceeding
is pending or threatened, nor, to the best of Seller's and Au Bon Pain's
knowledge, does any basis therefor exist, looking toward the revocation,
suspension or limitation of any Permit. Neither Seller nor Au Bon Pain has
knowledge of any other material licenses, permits and certificates that are
necessary to conduct its business at the Plant and which Seller does not possess
and with which Seller is not operating in compliance. Except as set forth in
Schedule 2.5, the consummation of the transactions contemplated by this
Agreement will not result in the revocation, suspension or limitation of any
Permit and no Permit will require the consent of its issuing authority to or as
a result of the consummation of the transactions contemplated hereby.
2.6 Employees and Labor Matters.
Except as described in Schedule 2.6: (a) Seller is in
compliance with all federal, state, local and other applicable law respecting
employment and employment practices, terms and conditions of employment and
wages and hours; (b) there is no unfair labor practice, complaint, charge or
other matter against or involving Seller pending or, to the knowledge of Seller
and Au Bon Pain, threatened before any governmental authority; (c) there is no
labor strike, dispute, organizing effort, slow down, stoppage or other labor
difficulty pending, or, to the knowledge of Seller and Au Bon Pain, threatened,
against or affecting Seller; (d) no representation question exists respecting
employees at the Plant; (e) no grievance nor any arbitration proceeding arising
out of or under any collective bargaining agreement is pending, and no claim
therefor exists; and (f) there is no collective bargaining agreement with
respect to any employee at the Plant which is binding on Seller.
2.7 Environmental Matters.
Except as disclosed in Schedule 2.7:
(a) No Hazardous Materials (as defined below) are present on,
in or under any of the Assets other than in compliance with Environmental and
Safety Requirements (as defined below), and no threatened or actual release,
spill or discharge of any Hazardous Materials has occurred on, in or under any
of the Assets which would require reporting or remediation under any
Environmental and Safety Requirements;
(b) To Seller's and Au Bon Pain's knowledge, Seller is in
compliance with all applicable Environmental and Safety Requirements, and Seller
possesses all required permits, licenses, certifications and approvals relating
to the Assets under Environmental and Safety Requirements;
(c) Seller has not received notice of, any private,
administrative or judicial action, proceeding or inquiry, investigation or order
relating to compliance with, or obligations under, Environmental and Safety
Requirements;
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(d) To Seller's and Au Bon Pain's knowledge, there are no conditions
that would preclude the transfer from Seller to Buyer, or reissuance to Buyer,
of each permit required by Environmental and Safety Requirements to own and
operate the Assets or conduct business at the Plant after the Closing Date;
(e) To Seller's and Au Bon Pain's knowledge, there are no underground
or aboveground storage tanks which contain Hazardous Materials located on or at
any of the Assets. All tanks, storage vessels, storm systems or pipes which are
included in the Assets are in compliance with all applicable Environmental and
Safety Requirements;
(f) None of the Assets are listed in the National Priorities List of
the Comprehensive Environmental Response Compensation and Liability Information
System promulgated pursuant to CERCLA (as defined below), or similar state lists
and laws;
(g) To Seller's and Au Bon Pain's knowledge, none of the Assets have
been used to treat, store for more than ninety (90) days, or dispose of
materials which are or were regulated under RCRA (as defined below), nor been
subject to RCRA interim status, a RCRA permit, or a RCRA Part A or Part B permit
application, whether or not such application was subsequently withdrawn;
(h) To Seller's and Au Bon Pain's knowledge, there is no friable
asbestos or friable asbestos containing material at, on, in or under any of the
Assets;
(i) To Seller's and Au Bon Pain's knowledge, there are no
polychlorinated biphenyls ("PCBs") at, on, in, used, stored or disposed of on,
at, in or under any of the Assets;
(j) To Seller's and Au Bon Pain's knowledge, there are no nuclear
radiation devices at, used, stored or disposed of, at, on, in or under any of
the Assets; and
(k) Seller has notified Buyer of the location of, and has made
available to Buyer, all known material documents, records and information
relating to the environmental representations and warranties contained herein,
Environmental and Safety Requirements affecting any of the Assets and permits
required for any of the Assets by Environmental and Safety Requirements.
The term "Hazardous Materials" shall include: (A) hazardous
substances or hazardous wastes, as defined by the Environmental and Safety
Requirements; (B) petroleum, including without limitation, crude oil, or any
fraction thereof, which is liquid at standard conditions of temperature and
pressure; (C) any radioactive material, including, without limitation, any
source, special nuclear, or by-product material as defined in the Atomic Energy
Act; (D) asbestos in any form or condition; (E) PCBs; and (F) any other
material, substance or waste to which liability or standards of conduct may be
imposed under any Environmental and Safety Requirements.
The term "Environmental and Safety Requirements" shall mean,
individually and collectively, the requirements imposed by the Resource
Conservation and Recovery Act, as amended by the Hazardous and Solid Waste
Amendments of 1984 ("RCRA"), the Comprehensive Environmental Response
Compensation and Liability Act, as amended by the Superfund Amendments and
Reauthorization Act ("CERCLA"), the Toxic Substances Control Act, the Safe
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Drinking Water Act, the Federal Water Pollution Control Act (the "Clean Water
Act"), the Clean Air Act, the Emergency Planning and Community Right-to-Know
Act, the Federal Insecticide, Fungicide and Rodenticide Act, the Noise Control
Act, the Radon Indoor Air Quality Research Act, and the National Environmental
Policy Act (Environmental Impact Statement), and any similar comparable Missouri
statutes and regulations, in each case, as amended; any state lien and superlien
and environmental clean-up statutes, with implementing rules and regulations,
and the Occupational Safety and Health Act of 1970, as amended.
2.8 Intentionally Omitted.
2.9 Fees, Expenses and Commissions.
Neither Seller nor Au Bon Pain has taken any action or has
entered into any agreement, understanding or other arrangement that would
obligate Seller or Buyer to pay any broker's or finder's fee or any other
similar fee or commission to any agent, broker, investment banker or other firm
or person in connection with any of the transactions contemplated by this
Agreement, except for Brent Baxter Enterprises, LLC and Peter J. Solomon Company
Limited, whose fees shall be the exclusive responsibility of Seller. Seller and
Au Bon Pain shall, jointly and severally, indemnify and hold Buyer harmless with
respect to any claim of any third party for such fee or commission claiming by,
through or under Seller.
2.10 Absence of Certain Changes or Events.
Since December 1, 1997 and except as disclosed on Schedule 2.10, there
has not been:
(a) Any material adverse change in or damage or loss to the Assets, or
the operations of Seller's wholesale business;
(b) Any increase in the compensation payable by Seller to any employee
of Seller other than routine increases made in the ordinary course of business
consistent with past practice, or any bonus, incentive compensation, or service
award, or other like benefit, granted, made or accrued, contingently or
otherwise, to or to the credit of any of such employee, or any adoption or
modification by Seller of any employee welfare, pension, retirement or similar
payment or arrangement;
(c) Any sale, assignment or transfer (including, without limitation,
the granting or permitting of any Lien) of any of the Assets other than in the
ordinary course of business or consistent with past practices;
(d) Any capital expenditure or commitment to make a capital
expenditure, in either case, in excess of Ten Thousand Dollars ($10,000)
(exclusive of expenditures for repair or maintenance of equipment in the
ordinary course of the business);
(e) Any cancellation, termination or amendment by Seller of any right
under the Assumed Contracts except for terminations in the ordinary course of
business;
(f) Any merger or consolidation of Seller into or with any corporation
or enterprise, or any action by Seller toward or effecting such a merger or
consolidation or a complete or partial
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liquidation or dissolution of Seller or any material portion of the Assets
(other than as contemplated by this Agreement);
(g) Any failure on the part of Seller to operate its wholesale business
in the ordinary course so as to preserve such business in all material respects,
including the services of its key employees and the goodwill of its suppliers,
customers and others having business relations with Seller; or
(h) Any agreement by or commitment of Seller to do or permit any of the
foregoing.
2.11 Taxes.
Notwithstanding anything in this Agreement to the contrary,
this Section 2.11 shall not apply with regard to any Tax or Taxes (as such terms
are defined below) to the extent that from and after the Closing, the Assets are
not subject to a lien for such Tax or Taxes, and Buyer or its affiliates are not
liable for such Tax or Taxes.
(a) Definitions. For purposes of this Agreement:
(i) The term "Code" shall mean the Internal Revenue Code
of 1986, as amended. All citations to the Code or to the regulations promulgated
thereunder shall include any amendments or any substitute or successor
provisions thereto.
(ii) The term "Returns" shall mean, collectively, all
reports, declarations, estimates, returns, information statements and similar
documents relating to, or required to be filed in respect of, any Taxes; and any
statements, returns, reports or similar documents required to be filed pursuant
to any similar income, excise or other tax provision of federal, state, local or
foreign law; and the term "Return" means any one of the foregoing Returns.
(iii) The term "Taxes" shall mean: (A) all net income,
gross income, gross receipts, sales, use, ad valorem, franchise, profits,
license, lease, service, service use, withholding, employment, payroll, excise,
severance, transfer, documentary, mortgage, registration, stamp, occupation,
environmental, premium, property, windfall, profits, customs, duties and other
taxes, fees, assessments or charges of any kind whatever, together with any
interest, penalties and other additions with respect thereto, imposed by any
federal, state, local or foreign government; and (B) any penalties, interest or
other additions to a Tax for the failure to collect, withhold or pay over any of
the foregoing, or to accurately file any Return; and the term "Tax" shall mean
any one of the foregoing Taxes. Notwithstanding the foregoing, however, when
used with reference to a specified person (for example and without limitation,
"Taxes of Seller"), the terms "Taxes" and "Tax" shall include only those amounts
for which such person is, or could become, liable in whole or part (including,
without limitation, any obligation in connection with a duty to collect,
withhold or pay over any Tax, any obligation to contribute to the payment of any
Taxes determined on a consolidated, combined or unitary basis, any liability as
a transferee, or any liability as a result of any express or implied obligation
to indemnify or pay the Tax obligations of another person).
(b) Returns Filed and Taxes Paid. (i) Seller has duly filed or
caused to be filed, on or before the due date thereof (including any valid
extensions), with the appropriate
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taxing authorities, all Returns that it is required to file; (ii) each such
Return (including any amendment thereto) is true, correct, and complete in all
material respects; (iii) all Taxes of Seller due with respect to, or shown to be
due on, each such Return (or amendment thereto) or subsequent assessment with
regard thereto, have been timely paid; (iv) there is no valid basis for the
assessment of any deficiency with regard to any such Return; and (v) there are
no extensions of time to file which are pending. No other Taxes of Seller are
due with respect to any taxable periods or portions of periods ending on or
before the Closing Date. There are no liens, attachments, or similar
encumbrances on any of the Assets with respect to any Taxes, other than liens
for Taxes of Seller that are not yet due and payable.
(c) Miscellaneous. Seller has collected or withheld all Taxes
that it is required to collect or withhold. None of the Assets (i) is property
which is required to be treated as being owned by any other person pursuant to
the so-called "safe harbor lease" provisions of former Section 168(f)(8) of the
Code; or (ii) directly or indirectly secures any debt, the interest on which is
tax exempt under Section 103(a) of the Code. The transactions contemplated by
this Agreement are not subject to the tax withholding provisions of Section 3406
of the Code, or of subchapter A of Chapter 3 of the Code, or of any other
comparable provision of law.
2.12. Insurance.
Seller's business and the Assets are insured under various
policies of general liability and other forms of insurance which, to the best of
Seller's and Au Bon Pain's knowledge, are in adequate amounts in relation to
Seller's business and the Assets. Each of such insurance policies is current and
in full force and effect and Seller has not received notice of default under or
intended cancellation or nonrenewal of any such policies. Seller and Au Bon Pain
will keep all such insurance policies in effect through the Possession Time.
Seller has not been refused any insurance by an insurance carrier to which it
has applied for insurance.
2.13 Employment Relationships.
At any time after the date of this Agreement, Seller will make
available to Buyer upon demand a true and correct roster of Seller's employees
at the Plant as of the date of this Agreement, setting forth each such
employee's compensation, date of hire and whether or not contributions are made
for such employee and/or whether such employee is otherwise entitled to benefits
under health or medical benefit, welfare or other employee benefit or fringe
benefit plans.
2.14 Status of Assets; Assumed Contracts.
Except as disclosed on Schedule 2.14, with respect to any of
the following constituting an Asset or an Assumed Liability, within the current
year or the last full calendar year: (i) Seller or Au Bon Pain, as the case may
be, has not assigned any material rights or obligations under (and is not
otherwise restricted for any reason from enjoying the full benefits under) any
Assumed Contract; (ii) neither Seller nor Au Bon Pain, as the case may be, nor,
to the knowledge of Seller or Au Bon Pain, any other party is in material
default in connection with any Assumed Contract; (iii) no act or event has
occurred which, with notice or lapse of time or both, would constitute a
material default by Seller or Au Bon Pain, as the case may be, or, to the
knowledge of Seller or Au Bon Pain, by another party under any Assumed Contract;
(iv) there is no basis for any claim of material default by Seller or by Au Bon
Pain (as the case may be), or, to
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the knowledge of Seller or Au Bon Pain, by another party under any Assumed
Contract; (v) neither Seller nor Au Bon Pain has received or given any notice of
cancellation or termination in connection with any Assumed Contract; (vi) each
Assumed Contract is the valid and binding agreement of Seller or Au Bon Pain, as
the case may be, which is in full force and effect and is enforceable in
accordance with its terms except, with regard to the other party or parties to
such instrument, as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws and general principles of
equity; (vii) no Assumed Contract will be affected by, or require the consent of
or payment to any other party to avoid an event of default, an event of
termination or other adverse effect with respect to such Assumed Contract
(assuming that any required notice of default or termination has been given and
any periods for cure have expired) by reason of the transactions contemplated by
this Agreement, except that the consent of the other parties thereto to the
assignment to Buyer will be required for Assumed Contracts identified in
Schedule 2.14; and (viii) there is no existing, pending, or, to the knowledge of
Seller or Au Bon Pain, threatened termination, cancellation, limitation,
amendment or change to any Assumed Contract or in the business relations
underlying the same.
2.15 Transactions with Affiliates.
Except as disclosed in Schedule 2.15, no officer or director
of Seller, or, to the knowledge of Seller or Au Bon Pain, any "affiliate" or
"associate" (as such terms are defined in the rules and regulations of the
Securities and Exchange Commission under the Securities Act of 1933, as amended)
of any of the foregoing is a party to any of the Assumed Contracts.
2.16 Accuracy of Statements.
No representation or warranty by Seller or Au Bon Pain in this
Agreement or in any Exhibit or Schedule to this Agreement or the Other
Agreements contains or will contain any untrue statement of a material fact, or
omits or will omit to state a material fact, necessary to make the statements
herein or therein not misleading.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller that:
3.1 Organization and Good Standing.
Buyer is duly organized and is existing as a corporation in
good standing under the laws of the State of Delaware with full corporate power
and authority to enter into this Agreement and to consummate the transactions
contemplated hereby. Buyer is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each state or jurisdiction
in which either the ownership or use of the properties owned or used by it, or
the nature of the activities conducted by it, require such qualification.
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3.2 Execution and Delivery.
This Agreement, and each other agreement, instrument or other
document required to be executed by Buyer hereunder, has been duly authorized by
all necessary corporate action on the part of Buyer, has been duly executed and
delivered by Buyer and constitutes the legal, valid and binding obligation of
Buyer enforceable against Buyer in accordance with its terms, except to the
extent that: (i) such enforcement is subject to or limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally; and
(ii) the remedy of specific performance and injunctive and other forms of
equitable remedies is subject to equitable defenses and to the discretion of the
court before which any proceeding therefor may be brought.
3.3 Consents, Violations and Authorizations.
(a) Buyer is not a party to or bound by any mortgage, indenture, lien,
deed of trust, lease, agreement, permit, concession, franchise, license,
instrument, order, judgment or decree which would require the consent of another
to the execution of this Agreement or the transactions contemplated hereby.
(b) The execution, delivery and performance of this Agreement, and the
consummation of the transactions contemplated hereby, by Buyer will not: (i)
conflict with or result in a breach or violation of any term or provision of, or
(with or without notice or passage of time, or both) constitute a default under,
or otherwise give any person a basis for nonperformance under, any material
indenture, mortgage, deed of trust, loan or credit agreement, lease, license or
other agreement or instrument to which Buyer is a party or by which Buyer is
bound or to which any of its properties or assets is subject; or (ii) result in
the violation of the provisions of the Certificate of Incorporation or Bylaws of
Buyer, or any order, writ, injunction or decree of any court or any arbitrator
having jurisdiction over the Buyer, or any applicable law or regulation.
3.4 Fees and Commissions.
Buyer has taken no action and has entered into no agreement,
understanding or other arrangement that would obligate Buyer or Seller to pay
any broker or finder's fee or other similar fee or commission to any agent,
broker, investment banker or other firm or person in connection with any of the
transactions contemplated by this Agreement, except for Chapman Partners, whose
fees shall be the exclusive responsibility of Buyer. Buyer shall indemnify and
hold Seller harmless with respect to any claim of any third party for such fee
or commission claiming by, through or under Buyer.
3.5 Sufficient Funds.
On the Closing Date, Buyer will have sufficient funds to
consummate the transactions contemplated hereby.
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3.6 Accuracy of Statements.
No representation or warranty by Buyer in this Agreement or in
any Exhibit or Schedule to this Agreement, or in each other agreement,
instrument or other document required to be executed by it hereunder, contains
or will contain any untrue statement of a material fact, or omits or will omit
to state a material fact, necessary to make the statements herein or therein not
misleading.
ARTICLE 4
CONDUCT OF THE BUSINESS AND
OTHER MATTERS PENDING CLOSING
4.1 Conduct of Business. During the period commencing on the date
hereof and continuing through the Closing Date, Seller shall (except as
expressly contemplated by this Agreement or to the extent that Buyer shall
otherwise consent in writing):
(a) Use all reasonable efforts to keep available the services of the
Plant Employees (as defined in Section 7.2);
(b) Not sell, lease or otherwise dispose of any of the Assets, except
in the ordinary course of business or sell, sublease, assign, surrender its
interests in or otherwise dispose of any of the Assumed Contracts;
(c) Not create, assume or incur the creation of any Lien which cannot
be discharged at or prior to Closing, other than Permitted Liens, in respect of
any of the Assets or the wholesale business;
(d) Not modify, amend, alter or terminate (whether by written or oral
agreement) any right of Seller which would have a material adverse effect on the
Assets or the Assumed Contracts;
(e) Maintain property and liability insurance covering the Assets and
its wholesale business in the amounts and with coverage at least as great as the
amounts and coverage in effect as of December 1, 1997;
(f) Maintain the Assets in the same condition as the condition that
they existed as of December 1, 1997, ordinary wear and tear excepted, and use
reasonable efforts to preserve Seller's possession and control of all of the
Assets;
(g) Maintain the books, accounts and records related to its wholesale
business in a manner consistent with past practice and sound business practices;
(h) Comply with all applicable law relating to Seller or to the conduct
of its business, and conduct its business so that on the Closing Date the
representations and warranties contained in this Agreement shall be true as
though such representations and warranties were made on and as of such date,
except for changes permitted or contemplated by the terms of this Agreement and
except for any representations or warranties that by their terms are limited to
a specific date;
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(i) Provide Buyer with prompt written notice of any material adverse
change in the Assets or Seller's wholesale business operations;
(j) Consistent with its prior practices, (Seller shall) maintain in
inventory at the plant quantities of goods, supplies and materials that are
sufficient to allow Buyer to continue to operate the Plant immediately after the
Closing Date free of any unusual shortage of such items, and (Seller shall)
maintain in inventory at The SYGMA Network, Inc. ("SYGMA") quantities of Product
(as such term is defined in the Supply Agreements) in compliance with the
relevant agreements between Seller and SYGMA and in compliance with Sygma
inventory levels required under the Supply Agreements;
(k) Operate its wholesale business only in the ordinary course so as to
preserve the goodwill of its suppliers, customers and others having business
relations with Seller;
(l) Not enter into any transaction which is outside the ordinary course
of business or enter into any supply contract either as a buyer or seller which
contracts individually or in the aggregate require payments in excess of Fifty
Thousand Dollars ($50,000) and which are for a term in excess of six (6) months
or which cannot be terminated by Seller or its successors or assigns upon thirty
(30) days prior written notice; and
(m) Not take or permit any action that, if taken or permitted
immediately prior to the execution of this Agreement would constitute a breach
of the representations and warranties in this Article 4.
4.2 Access.
(a) Seller shall provide Buyer and its accountants, counsel and other
representatives reasonable access during operating hours during the period prior
to and on the Closing Date to the Plant, Plant Employees and, during such
period, and to the extent material, shall furnish promptly to Buyer, without
request, a copy of each report, notice and other document (other than tax
returns) filed or received by, or on behalf of, Seller to the extent that it
relates to the Assets during such period pursuant to the requirements of
applicable regulatory law and, upon reasonable request, all other material
information (other than financial data or information), pertaining to the Assets
or the Plant Employees.
(b) Except as may be required by law, Buyer will hold any information
acquired pursuant to this Section 4.2 in strict confidence until after the
Closing or until such time as such information otherwise becomes publicly
available through no action of Buyer, and shall not disclose any of it except to
Buyer's directors, officers, employees, agents, accountants, counsel and other
representatives in connection with the negotiation and consummation of the
transactions contemplated by this Agreement. If this Agreement is terminated in
accordance with Article 9 hereof, Buyer will return to Seller all documents,
work papers and other materials obtained from Seller and all copies thereof,
whether so obtained before or after the execution hereof, and will otherwise
keep confidential such information.
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4.3 Obtaining Approvals.
Seller and Buyer shall use their respective best efforts (but
without being obligated to pay any financial or other consideration) to obtain
prior to the Closing Date, any necessary consent, authorization, amendment or
approval of, or exemption by: (a) any governmental body or agency or
instrumentality thereof; and (b) any other person whose consent or approval is
required as a condition precedent to the consummation of the transactions
contemplated by this Agreement.
4.4 Obligations Concerning Employees.
From the date of this Agreement through the Closing Date,
Buyer shall have the right upon reasonable notice to Seller during normal
business hours and without unreasonable disruption of the operation of the
Business, to interview the Plant Employees and otherwise conduct hiring
procedures with regard to its possible hiring of Plant Employees, but, except as
contemplated in Section 7.2, shall have no obligation to offer employment to any
Plant Employee.
4.5 Payment of Certain Transactional Costs and Taxes.
(a) Seller shall pay, and Au Bon Pain shall cause Seller to pay, all
sales taxes, other property transfer taxes, all documentary or other stamp taxes
and all similar taxes, including without limitation income taxes, if any,
arising out of or related to the transactions contemplated by this Agreement.
Buyer shall pay all filing, recording, notarial and similar fees with respect to
the transfer of any of the Assets.
(b) If Seller or Buyer intends to treat the transfer of any Asset to
Buyer as exempt from any Tax imposed on transfers of similar property, such
party shall furnish the other with a certificate or other evidence reasonably
satisfactory to the other party that such exemption is applicable.
(c) Any periodic real or personal property tax imposed by any state or
local governmental unit on a Asset with respect to a taxable period that
includes the Closing Date shall be apportioned on a per diem basis with Seller
being responsible for payment of such Tax apportioned to the part of such
taxable period that occurs prior to the Closing Date.
4.6 The Real Property.
(a) Condition of the Real Property. Subject to Article 10, Seller shall
use reasonable efforts to maintain the Real Property in the same condition in
which it existed as of December 1, 1997, ordinary wear and tear excepted, to the
Closing Date and, on such date, Seller shall tender possession of the Real
Property to Buyer. Immediately prior to Closing, Buyer shall conduct a
"walk-through" inspection of the Real Property to verify that it is in the
condition required herein.
(b) Seller's Deliveries. As soon as practicable, but no later than the
Closing Date, Seller shall make available to Buyer correct and complete copies
of the following (to the extent in Seller's or Au Bon Pain's possession or
otherwise available to Seller or Au Bon Pain without undue
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effort or expense): (i) all documentation relative to the zoning classification,
special use permits and zoning or other land use restrictions imposed upon or in
respect to the Real Property; (ii) certificates of occupancy and other
governmental licenses and permits issued in respect to or required for the
present use and occupancy of the Real Property; (iii) all as-built plans and
specifications for the improvements to the Real Property, soil tests,
engineering studies, environmental audits or reports, reports of insurance
carriers, agreements, plats, plans, drawings, surveys, specifications, title
insurance policies, and other like documents, instruments and items relating to
the Real Property; (iv) all notifications received by Seller or Au Bon Pain
asserting that the Real Property, or any portion thereof, do not comply with any
law, rule, regulation, order, code, permit or other legal requirement; and (v)
all real estate tax bills and all utility and, to the extent available, other
operating expense bills relating to the operation of the Real Property for the
current year or the last two (2) calendar years immediately preceding the date
hereof.
4.7 Bulk Transfer Compliance.
Buyer and Seller hereby waive compliance by Buyer and Seller
with the bulk sales law and any other similar laws in any applicable
jurisdiction with respect to the transactions contemplated by this Agreement.
Seller and Au Bon Pain shall, jointly and severally, indemnify Buyer from, and
hold it harmless against, any liabilities, damages, costs and expenses directly
resulting from or arising out of the parties' decision to waive compliance with
any of such laws with respect to the transactions contemplated by this
Agreement.
4.8 Release of Affiliate Encumbrances.
All encumbrances of any kind or nature whatsoever in favor of
any affiliate of Seller on the Assets will be removed by Seller on or prior to
the Closing Date.
4.9 Supplements to Schedules and Exhibits.
Seller and Au Bon Pain shall deliver to Buyer prior to the
Closing a written statement disclosing any untrue statement of a material fact
in this Agreement or any Exhibit or Schedule hereto (or supplement thereto) or
document furnished pursuant hereto promptly upon the discovery of such untrue
statement, accompanied by a written supplement to any Exhibit or Schedule to
this Agreement that may be affected thereby. No such disclosure by Seller or Au
Bon Pain shall be deemed to modify, amend or supplement the representations or
warranties of Seller or Au Bon Pain, as the case may be, or the Schedules and
Exhibits hereto for the purposes of Article 5, unless Buyer shall have consented
thereto in writing.
4.10 Non-Competition.
(a) For and in consideration of Buyer's payment of the Purchase Price,
Seller covenants and agrees that it will not for a period of five (5) calendar
years from the Closing Date for itself, or as an agent of or on behalf of, or in
conjunction with, any person, firm, corporation, partnership or other entity or
otherwise in any manner or capacity, engage in or have any interest in, or in
any way assist in the manufacture and sale of bakery goods in the United States,
Mexico or Canada (the "Territory").
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(b) Although the parties consider the restrictions contained in Section
4.10(a) to be reasonable, if a final nonappealable determination is made by a
court of competent jurisdiction that the time or Territory or any other
restriction contained in Section 4.10(a) is an unreasonable or otherwise
unenforceable restriction against Seller, neither this Agreement nor the
provisions of Section 4.10(a) shall be rendered void, but shall be deemed
amended to apply as to such maximum time, territory and scope and to such other
extent as permitted by law and as determined by such court under the
circumstances involved.
4.11 Non-Solicitation.
Seller shall not, directly or indirectly, for five (5) years
after the Closing Date, solicit or hire any employee of Buyer, unless the
employment of such employee has been terminated by Buyer, or Buyer consents
thereto.
ARTICLE 5
CONDITIONS TO CLOSING
5.1 Conditions of Buyer.
The obligation of Buyer to purchase the Assets, to assume the
Assumed Liabilities, and to consummate the transactions contemplated by this
Agreement shall be subject to the satisfaction, at or prior to the Closing Date,
of each of the following conditions:
(a) No preliminary or permanent injunction or other order by any United
States or state court or by any governmental body or agency or instrumentality
thereof that prevents the consummation of the transactions contemplated by this
Agreement shall have been issued and remain in effect;
(b) There shall not be pending or threatened any action or proceeding
before or by any governmental body or agency or instrumentality thereof or
court, domestic or foreign: (i) challenging the acquisition by Buyer of the
Assets or otherwise seeking to restrain or prohibit the consummation of the
transactions contemplated by this Agreement or seeking material damages in
connection therewith; or (ii) seeking to restrain or prohibit Buyer's direct or
indirect ownership of the Assets or rights under the Assumed Contracts or
operation of the Plant as contemplated by this Agreement and the Supply
Agreements;
(c) There shall not be any action taken, or any statute, rule,
regulation or order enacted, promulgated or issued or deemed applicable by Buyer
to the consummation of the transactions contemplated by this Agreement by any
United States or state governmental body or agency or instrumentality thereof or
court that (i) would prohibit Buyer's direct or indirect ownership of any
material portion of the Assets, (ii) would render Buyer or Seller unable to
consummate the transactions contemplated by this Agreement or (iii) would make
such consummation illegal;
(d) The parties hereto shall have secured all appropriate orders,
consents, approvals and clearances, in form and substance reasonably
satisfactory to Buyer, by and from all third parties, including but not limited
to governmental or regulatory authorities, whose order,
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consent, approval or clearance is required by contract or applicable law for the
consummation of the sale of the Assets and the other transactions herein
contemplated;
(e) All waiting periods, if any, under the HSR Act (as defined in
Section 7.3) shall have expired or been terminated;
(f) The representations and warranties of Seller and Au Bon Pain in
this Agreement shall be true and correct on and as of the Closing Date with the
same effect as if made on the Closing Date and Seller and Au Bon Pain shall have
complied with all covenants and agreements and satisfied all conditions on its
part to be performed or satisfied on or prior to the Closing Date;
(g) Seller shall have delivered to Buyer the Deed, Bill of Sale and
such other documentation as contemplated by this Agreement in each case in form
and substance reasonably satisfactory to Buyer;
(h) Buyer and Seller shall each have executed and delivered to the
other a closing statement setting forth the Purchase Price, the closing
adjustments and apportionments and the application thereof at the Closing as
contemplated by Section 1.3 (the "Closing Statement");
(i) Each of Au Bon Pain and Saint Louis Bread shall have entered into a
Supply Agreement for the purchase of bakery products from Buyer's operation of
the Plant pursuant to Section 7.1;
(j) Each of Au Bon Pain and Saint Louis Bread shall have executed and
delivered to Buyer a non-exclusive Manufacturing License to manufacture the
Wholesale Products pursuant to Section 7.1;
(k) Seller shall have executed and delivered a certification of
non-foreign status in the form attached as Exhibit 5.1(k);
(l) [Intentionally omitted];
(m) Buyer shall have received all appropriate assurances regarding the
delivery by holders of Liens of all termination statements and instruments of
release, which are sufficient in form and substance satisfactory to Buyer and
its counsel, to release and discharge all Liens on the Assets, except for
Permitted Liens, and all necessary consents to assignment of the Assumed
Contracts to Buyer shall have been received by Buyer;
(n) Buyer shall have received a certificate of the Secretary or
Assistant Secretary of Seller to the effect set forth on Exhibit 5.1(n);
(o) Buyer shall have received a certificate of the Seller signed by a
Vice President or more senior officer of the Seller to the effect set forth on
Exhibit 5.1(o);
(p) Seller shall have delivered to Buyer one or more certificates as to
the legal existence and corporate good standing of Seller, dated not more than
ten (10) days prior to the Closing Date, from the Secretary of State of Delaware
and the Secretary of State of Missouri;
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(q) Buyer shall have received the legal opinion of Gadsby & Hannah LLP
substantially in the form attached as Exhibit 5.1(q);
(r) There shall have been no material adverse change to the Assets or
wholesale business of Seller, since December 1, 1997;
(s) Buyer shall have received a title insurance policy from Chicago
Title Insurance Company consistent with the commitment for title insurance
attached hereto as Exhibit 5.1(s)(1) (except that Items No. 10, 11 and 12 shall
be discharged at the Closing and deleted from such title policy and such policy
may take exception for Item No. 8 on Schedule 1.6(a)), which policy shall also
confirm by an updated survey of the Real Property that: (i) the location of the
easements shown on the survey prepared by Engineering Survey & Services dated
July 13 and 19, 1995, a copy of which is attached hereto as Exhibit 5.1(s)(2);
(ii) the location of a certain easement to Missouri-American Water Company as
shown on the plan recorded with said easement at Book 285, Page 803, and (iii)
the lagoons owned and/or operated by the City of Mexico, Missouri located to the
south of the Real Property do not encroach onto the Real Property, or if an
encroachment does exist, that affirmative coverage can be secured that the
location of the lagoons do not prohibit the use of the improvements on the Real
Property as currently constructed;
(t) Seller shall have taken, or caused to be taken, such further
actions, and executed and delivered such other agreements, instruments and
documents as are provided for in this Agreement or as may reasonably be
requested by Buyer consistent with the terms of this Agreement or as may be
necessary or convenient to consummate the transactions contemplated hereby or in
connection herewith;
(u) Buyer shall have received assignment and assumption agreements with
respect to the Assumed Contracts, in a form reasonably satisfactory to Buyer,
Seller and any third party whose consent is required to effectively assign the
Assumed Contracts to Buyer;
(v) Buyer shall have received assignment and assumption agreements with
respect to the Assumed Liabilities;
(w) Buyer shall have received all keys to the Assets; and
(x) Buyer shall have received a clearance certificate or other similar
document(s) which may be required by any state or foreign taxing authority in
order to relieve Buyer of any obligations with respect to Seller's Taxes.
5.2 Conditions of Seller.
The obligation of Seller to sell, assign and transfer the
Assets, transfer the Assumed Liabilities to Buyer, and to consummate the
transactions contemplated by this Agreement shall be subject to the
satisfaction, at or prior to the Closing Date, of each of the following
conditions:
(a) no preliminary or permanent injunction or other order by any United
States or state court or by any governmental body or agency or instrumentality
thereof that prevents the
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consummation of the transactions contemplated by this Agreement shall have been
issued and remain in effect;
(b) there shall not be pending or threatened any action or proceeding
before or by any governmental body or agency or instrumentality thereof or
court, domestic or foreign (i) challenging the sale by Seller of the Assets or
otherwise seeking to restrain or prohibit the consummation of the transactions
contemplated by this Agreement or seeking material damages in connection
therewith; or (ii) seeking to restrain or prohibit Buyer's direct or indirect
ownership of the Assets or operation of the Plant as contemplated by this
Agreement and the Supply Agreement;
(c) there shall not be any action taken, or any statute, rule,
regulation or order enacted, promulgated or issued or deemed applicable by
Seller to the consummation of the transactions contemplated by this Agreement by
any United States or state governmental body or agency or instrumentality
thereof or court that (i) would prohibit Buyer's direct or indirect ownership of
the Assets, (ii) would render Buyer or Seller unable to consummate the
transactions contemplated by this Agreement, or (iii) would make such
consummation illegal;
(d) the parties hereto shall have secured all appropriate orders,
consents, approvals and clearances, in form and substance reasonably
satisfactory to Seller, by and from all third parties, including but not limited
to governmental or regulatory authorities, whose order, consent, approval or
clearance is required by contract or applicable law for the consummation of the
sale of the Assets and the other transactions herein contemplated;
(e) all applicable waiting periods, if any, under the HSR Act shall
have expired or been terminated;
(f) the representations and warranties of Buyer in this Agreement shall
be true and correct in all respects on and as of the Closing Date with the same
effect as if made on the Closing Date and Buyer shall have complied in all
material respects with all covenants and agreements and satisfied all conditions
on its part to be performed or satisfied on or prior to the Closing Date;
(g) Buyer and Seller shall each have executed and delivered the Closing
Statement contemplated by Section 1.3;
(h) Buyer shall have entered into with each of Au Bon Pain and Saint
Louis Bread a Supply Agreement for the purchase of bakery products from Buyer's
operation of the Plant pursuant to Section 7.1;
(i) Buyer shall have executed and delivered to each of Au Bon Pain and
Saint Louis Bread a counterpart copy of the non-exclusive Manufacturing License
for the manufacture of the Wholesale Products pursuant to Section 7.1;
(j) Seller shall have been paid the Purchase Price in lawful currency
of the United States of America by wire transfer of immediately available funds
pursuant to Section 1.2;
(k) All necessary consents to assignment of the Assumed Contracts to
Buyer shall have been received by Seller;
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(l) Seller shall have received a certificate of the Secretary or an
Assistant Secretary of the Buyer to the effect set forth in Exhibit 5.2(l);
(m) Seller shall have received a certificate of the Buyer signed by a
Vice President or more senior officer of the Buyer to the effect set forth in
Exhibit 5.2(m);
(n) Buyer shall have delivered to Seller one or more certificates as to
the legal existence and corporate good standing of Buyer from the Secretary of
State of Delaware and the Secretary of State of Missouri;
(o) Seller shall have received the legal opinion of Murray H.
Warschauer substantially in the form attached as Exhibit 5.2(o); and
(p) Buyer shall have taken, or caused to be taken, such further
actions, and executed and delivered such other agreements, instruments and
documents as are provided for in this Agreement or as may reasonably be
requested by Seller consistent with the terms of this Agreement or as may be
necessary or convenient to consummate the transactions contemplated hereby or in
connection herewith.
ARTICLE 6
SURVIVAL; INDEMNIFICATION
6.1 Survival of Representations, Warranties and Covenants.
Except as may expressly be provided in this Agreement, the
covenants contained in this Agreement shall survive the Closing Date
indefinitely. The representations and warranties shall survive for a period of
twenty-four (24) months following the Closing Date, except that any
representation and warranty contained in Sections 2.1, 2.2 and 2.3 shall survive
indefinitely, and except that any representation or warranty contained in
Section 2.7 shall survive until the expiration of the applicable statute of
limitations and any representation or warranty contained in Section 2.11 shall
survive for six (6) months after the expiration of the applicable statute of
limitations. Any claim for indemnification hereunder for a breach of any
representation or warranty shall be made on or prior to the date, if any, on
which the survival period for such representation or warranty expires, it being
understood that claims made on or prior to such expiration date shall survive
such expiration date.
6.2 Indemnification.
(a) Seller shall indemnify, defend and hold Buyer, and each of its
officers, directors, employees, and agents, harmless from and against any and
all loss, cost, damage, expense, or liability (including, without limitation,
judgments, settlements and reasonable attorneys' fees) (collectively, "Damages")
arising out of or resulting from (i) any inaccuracy in or breach of any
representation, warranty, covenant or agreement made by Seller in this Agreement
or in any writing delivered pursuant to this Agreement or at the Closing; and
(ii) any failure of Seller to perform or fully observe any covenant, agreement,
condition or provision to be performed or observed by it pursuant to this
Agreement.
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(b) Buyer shall indemnify, defend and hold Seller, and each of its
officers, directors, employees, and agents, harmless from and against any and
all Damages arising out of or resulting from: (i) any inaccuracy in or breach of
any representation, warranty, covenant or agreement made by Buyer in this
Agreement or in any writing delivered pursuant to this Agreement or at the
Closing; and (ii) any failure by Buyer to perform or fully observe any covenant,
agreement, condition or provision to be performed or observed by it pursuant to
this Agreement.
(c) Any provision hereof to the contrary notwithstanding (except with
respect to the Supply Agreements): (i) the indemnification provided for
hereunder shall constitute the exclusive remedy for any Damages arising out of,
resulting from, or related to this Agreement, regardless of whether the legal
theory for such claim for Damages is based in tort, contract or otherwise; and
(ii) such Damages shall in no event exceed the Purchase Price plus the aggregate
amount due under the Assumed Liabilities, including without limitation, the
Assumed Contracts. No party shall be entitled to seek indemnification pursuant
to Sections 6.2(a) or 6.2(b) until the aggregate amount of the Damages actually
incurred exceeds Two Hundred Fifty Thousand Dollars ($250,000) (the "Deductible
Amount"). In the event that the Deductible Amount is exceeded, the indemnified
parties shall be entitled to seek indemnification only to the extent of Damages
incurred in excess of the Deductible Amount.
(d) Any claim for indemnity under this Section 6.2 shall be delivered
in writing in accordance with Section 11.2 hereof within thirty (30) days of a
discovery by the indemnified party of such claim to the indemnifying party and
such claim shall set forth with reasonable specificity the amount claimed and
the underlying facts supporting such claim; provided, however, that the failure
of an indemnified party to so notify an indemnifying party within such thirty
(30) day period shall not relieve the indemnifying party of its obligation to
indemnify under this Agreement unless the rights of the indemnifying party are
thereby materially prejudiced. The indemnifying party shall have thirty (30)
days to accept or dispute such claim. Any undisputed claims shall be satisfied
as set forth above. With respect to any disputes that the parties are not
mutually able to resolve, each of the parties hereby consents to the
nonexclusive jurisdiction of the courts of the State of Missouri, and of the
United States District Courts located in the State of Missouri, and to any court
to which an appeal from any of the foregoing courts may be taken.
(e) If a third party asserts a claim against any indemnified party for
which indemnification would be available under this Section 6.2 (a "Third Party
Claim"), the indemnified party shall promptly give notice of the Third Party
Claim, describing the Third Party Claim with reasonable specificity, to the
indemnifying party; provided, however, that the failure to give such notice
shall not affect the right of the indemnified party to indemnification hereunder
unless such failure materially prejudices the ability of the indemnifying party
to defend any Third Party Claim or take any other remedial action. The
indemnifying party shall be entitled to assume the defense of the Third Party
Claim, including the employment of counsel reasonably satisfactory to the
indemnified party. The indemnified party may participate in any such proceeding
at its own expense. In addition, in the event that such indemnifying party,
within a reasonable time after notice of any Third Party Claim, fails to defend
any indemnified party, such indemnified party shall (upon further notice to such
indemnifying party) have the right to undertake its defense of the Third Party
Claim for the account of such indemnifying party and to have its expenses
reimbursed promptly by the indemnifying party with respect to the Third Party
Claim. Regardless of which party is controlling the defense of any Third Party
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Claim, (i) both the indemnifying party and the indemnified party shall act in
good faith and (ii) no settlement of such Third Party Claim may be agreed to
without the written consent of the indemnifying party. The controlling party
shall promptly deliver, or cause to be delivered, to the other party copies of
all correspondence, pleadings, motions, briefs, appeals, orders or other written
statements relating to the matter, whether received or submitted in connection
with the defense of the Third Party Claim, and timely notices of any hearing or
other court proceeding relating to the Third Party Claim.
ARTICLE 7
ADDITIONAL COVENANTS OF THE PARTIES
7.1 Manufacturing.
(a) At the Closing, Buyer shall enter into Supply Agreements with each
of Au Bon Pain and Saint Louis Bread in the forms attached as Exhibit
7.1(a)(1)-(2).
(b) At the Closing, each of Au Bon Pain and Saint Louis Bread Seller
shall grant to Buyer a license to manufacture certain wholesale products
pursuant to Manufacturing Licenses in the forms attached as Exhibit
7.1(b)(1)-(2) (the "Manufacturing Licenses"). Except to the extent expressly
provided for in each Manufacturing License, Buyer shall not use in any manner
any of the trade names, brands, trademarks or trade dress of Seller, Au Bon Pain
or Saint Louis Bread except in the manufacture and sale of products to Au Bon
Pain, Saint Louis Bread and their respective franchise systems pursuant to the
Supply Agreements. Subject to the rights granted in the Manufacturing Licenses,
all product recipes, formulas, specifications, manufacturing processes or
preparation procedures and any other trade secrets and information used to
manufacture product for Au Bon Pain or Saint Louis Bread (including, without
limitation, information related to the cost of products) shall remain solely the
property of Seller, regardless of whether developed or modified by Buyer or
Seller. All such information shall be kept strictly confidential by Buyer.
(c) As used in this Agreement, the term "Proprietary Information" shall
mean any knowledge or information, written or oral, which relates in any manner
to the respective businesses of Buyer and Seller which is confidential and
proprietary information of the Disclosing Party (as defined below), including,
without limitation, with respect to the Wholesale Products, whether disclosed
prior to, on or after the date of this Agreement, including, without limitation,
the recipes, formulas, specifications, manufacturing processes, preparation
procedures, financial information, equipment, marketing methods, demographic and
trade information, customer profiles and preferences, costs, development plans,
products and production techniques and all related trade secrets and proprietary
information treated as such by the Disclosing Party, whether by course of
conduct, by letter or report, or by the use of an appropriate stamp or legend
designating such information to be confidential or proprietary. As used herein,
the term "Disclosing Party" shall mean the party to this Agreement which
discloses or makes available Proprietary Information to the Receiving Party, and
the term "Receiving Party" shall mean the party to this Agreement to whom
Proprietary Information is disclosed or made available by the Disclosing Party,
provided however that with respect to the Wholesale Products, Buyer shall be
deemed the Disclosing Party and Seller shall be deemed the Receiving Party.
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(d) The Receiving Party shall hold all Proprietary Information in
confidence, shall use such Proprietary Information only for the benefit of the
Disclosing Party and disclose such Proprietary Information only to the Receiving
Party's officers, directors, employees and agents in order to assist the
Receiving Party in performing its obligations under this Agreement. The
Receiving Party shall not disclose Proprietary Information to any other Person,
provided, however, the Receiving Party may disclose Proprietary Information to a
corporate Affiliate of the Receiving Party if such Affiliate first agrees in
writing to be bound by the covenants contained in this Agreement with respect to
the use and nondisclosure of Proprietary Information.
(e) The obligations and prohibitions set forth in this Section 7.1
shall not apply to any Proprietary Information that is required to be disclosed
by applicable law or that is shown, by preexisting documentary evidence or other
reliable evidence, to be information: (i) that was known by the Receiving Party
prior to the exchange of information in contemplation of this Agreement; (ii)
entered into the public domain other than through the act of the Receiving
Party; (iii) is independently developed by the Receiving Party; or (iv) is
rightfully received by the Receiving Party from a third party who is not
obligated to the Disclosing Party to keep such information confidential.
7.2 Employment of Seller's Employees.
Effective as of the Closing Date, Seller shall terminate the
employment of all employees, supervisors, agents and other persons hired or
retained by Seller in connection with its ownership and operation of the Plant
("Plant Employees"). Buyer shall have no obligation to hire any Plant Employees,
although Buyer may interview and make offers to hire any such Plant Employees if
Buyer so elects in its sole and absolute discretion. Buyer shall disclose to
Seller the identity of any Plant Employees it chooses not to hire not less than
two (2) weeks prior to the Closing Date. Regardless of whether Buyer offers to
employ any Plant Employees, with respect solely to events occurring prior to (or
on) the Closing Date, Seller shall be liable for all termination and severance
costs, if any, to which any Plant Employees are entitled; provided, however,
that Buyer shall offer employment to a sufficient number of Plant Employees so
that Seller shall have no duties or obligations under the federal WARN Act.
7.3 Hart-Scott-Rodino.
Buyer and Seller shall each use their best efforts to prepare
and submit within ten (10) business days after the date of this Agreement to the
U.S. Department of Justice and the Federal Trade Commission such pre-merger
notifications, if any, as are required by the Hart-Scott-Rodino Act (the "HSR
Act") and, in connection with such notifications, to request early termination
of all applicable waiting periods.
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7.4 Payment of Taxes.
Seller shall timely pay, and Au Bon Pain shall cause Seller to
pay, before the same shall become delinquent and before penalties accrue
thereon, all Taxes (including any Taxes incurred in connection with the
transactions contemplated by this Agreement), (a) shown (or required to be
shown) on any Return (or amendment thereto) filed (or required to be filed) by
Seller before, on or after the Closing Date, or (b) that become due from or
payable by Seller before, on or after the Closing Date. This Section 7.4 shall
not apply with regard to any Tax to the extent that the Assets cannot be made
subject to a lien for such Tax and Buyer cannot be made liable for such Tax.
Each party shall be responsible for filing Forms W-2 with respect to the 1998
taxable year in accordance with the "Standard Procedure" described in Rev. Proc.
84-77, 1984-2 C.B. 753. The responsibility for all other information returns
shall be allocated similarly.
7.5 Cooperation and Records Retention.
From time to time, Seller and Buyer shall provide, and shall
cause their respective accountants and other representatives to provide, to each
other on a timely basis, the information (including but not limited to work
papers) that they or their accountants or other representatives have within
their control and that may be reasonably necessary in connection with the
preparation of any Return or the examination by any taxing authority or other
administrative or judicial proceeding relating to any Return. Seller and Buyer
shall retain or cause to be retained, until the applicable statutes of
limitations (including any extensions and carryovers) have expired, copies of
all Returns for all tax periods beginning before the Closing Date, together with
supporting work schedules and other records or information that may be relevant
to such Returns.
7.6 Tax Elections.
No new elections with respect to Taxes, or any changes in
current elections with respect to Taxes, affecting the Assets shall be made by
Seller after the date of this Agreement without the prior written consent of
Buyer.
ARTICLE 8
CLOSING
8.1 Closing Date.
Unless this Agreement shall have been terminated and the
transactions contemplated hereby shall have been abandoned pursuant to Article
9, the sale of the Assets to Buyer by Seller and the consummation of the other
transactions contemplated by this Agreement (the "Closing") shall occur at 11:00
a.m. onMarch 20, 1998, at the offices of Gadsby & Hannah LLP, 225 Franklin
Street, Boston, Massachusetts 02110, or at such other hour or place or on such
other date as may be agreed upon by Seller and Buyer upon the fulfillment of all
conditions precedent to the Closing (such date being referred to herein as the
"Closing Date"). Actual possession of the Assets shall be delivered to Buyer at
12:01 a.m. on the day following the Closing Date (the "Possession Time").
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8.2 Deliveries at Closing by Seller.
At Closing, Seller shall:
(a) execute and deliver to Buyer any and all instruments of
sale, assignment and other documents reasonably requested by Buyer to effect the
transfer of the Assets to Buyer, to effect the assumption of the Assumed
Liabilities by Buyer, or otherwise to consummate the transactions contemplated
hereby, including without limitation:
(i) the Deed;
(ii) other documents and certificates relating to the
transfer of Plant which are customary in transactions similar to the
transactions contemplated by this Agreement, such as certificates of
value, affidavits of non-foreign status, affidavits as to mechanics
liens, and the like, including items reasonably requested by Buyer's
title insurer;
(iii) one or more assignment and assumption
agreements with respect to the Assumed Contracts to be acquired by
Buyer hereunder, in a form reasonably satisfactory to Buyer, Seller and
any third party whose consent is required to effectively assign the
Assumed Contracts to Buyer;
(iv) an assignment and assumption agreement with
respect to the Assumed Liabilities in the form attached as Exhibit
8.2(a)(iv);
(v) a blanket bill of sale and assignment covering
all Assets in the form attached as Exhibit 1.6(b);
(vi) such other documents, including instruments of
sale, transfer and assignment, transferring, assigning and conveying
the Assets as shall be reasonably requested by Buyer to evidence the
transfer of any of the Assets in accordance with this Agreement; and
(vii) possession of the Assets and all keys thereto.
(b) Execute and deliver the closing certificates in the forms
attached hereto as Exhibit 5.1(n) and Exhibit 5.1(o), each duly executed as
provided herein;
(c) Deliver certificates of good standing or the equivalent,
dated not more than ten (10) calendar days prior to the Closing Date, attesting
to the good standing of Seller and Au Bon Pain as corporations under the laws of
the State of Delaware;
(d) Deliver all consents, amendments, assignments, estoppel
letters, authorizations and approvals required pursuant to Article 5 as a
condition to Closing;
(e) Deliver all clearance certificates or other similar
documents that may be required by any state or foreign taxing authority in order
to relieve Buyer of any obligation to withhold any portion of the Purchase
Price;
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(f) Deliver to Buyer an opinion of Gadsby & Hannah LLP,
counsel for Seller, in the form attached as Exhibit 5.1(q);
(g) Execute and deliver a receipt for the Purchase Price and
all other consideration to be paid pursuant to Section 1.2;
(h) Deliver to Buyer duly executed Supply Agreements; and
(i) Deliver all other previously undelivered documents and
material required to be delivered by Seller to Buyer at or prior to the Closing.
8.3 Deliveries at Closing by Buyer.
At Closing, Buyer shall deliver to Seller:
(a) The Purchase Price and other consideration as provided in
Section 1.2 hereof;
(b) An assumption and assignment agreement with respect to the
Assumed Liabilities in the form attached as Exhibit 8.2(a)(iv);
(c) The closing certificates in the form attached as Exhibit
5.2(l) and Exhibit 5.2(m), each duly executed as provided herein;
(d) A resale tax exemption certificate, if applicable;
(e) An executed opinion of Murray H. Warschauer, counsel for
Buyer, in the form attached as Exhibit 5.2(o); and
(f) Execute and deliver to Seller the Supply Agreements.
(g) All other previously undelivered documents and material
required to be delivered by Buyer to Seller at or prior to the Closing.
8.4 Simultaneous Closing.
All actions taken at the Closing shall be deemed to be
performed simultaneously and the Closing shall not be deemed to have occurred
until all required actions of the parties pursuant to this Agreement have been
performed or waived. The parties shall deliver such additional documents and
take such additional actions as may reasonably be deemed necessary to complete
the transactions contemplated by this Agreement.
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ARTICLE 9
TERMINATION
9.1 Termination.
This Agreement may be terminated and the transactions
contemplated herein may be abandoned prior to the Closing Date:
(a) by the mutual consent of Seller and Buyer;
(b) by Seller or Buyer, if the Closing has not occurred on or
before June 30, 1998;
(c) by Buyer if there has been a misrepresentation, breach of
warranty or breach of covenant by Seller hereunder, provided Buyer is not then
in material default of its obligations hereunder;
(d) by Seller if there has been a misrepresentation, breach of
warranty or breach of covenant by Buyer hereunder, provided Seller is not then
in material default of its obligations hereunder;
(e) by Seller if any of the conditions precedent to Seller's
obligations hereunder shall have become incapable of fulfillment through no
fault of Seller; and
(f) by Buyer if any of the conditions precedent to Buyer's
obligations hereunder shall have become incapable of fulfillment through no
fault of Buyer.
9.2 Procedure Upon Termination.
In the event of the termination of this Agreement by either
party pursuant to Section 9.1(b)-(f), written notice thereof shall be given
forthwith to the other party to this Agreement, and this Agreement shall
terminate and be abandoned without further action by Seller or Buyer. Upon
termination of this Agreement pursuant to Section 9.1(a),(b), (e) or (f), there
shall be no liability or obligation on the part of either Seller or Buyer to the
other under this Agreement or in connection with the transactions contemplated
hereby; provided that, no such termination of this Agreement will relieve any
party of liability for any breach of this Agreement prior to such termination;
provided, further that the obligations of Buyer set forth in Section 7.1(d)
shall survive the termination of this Agreement. In the event of a termination
pursuant to Section 9.1(c)-(d) hereof, such termination shall be without
prejudice to any rights that the terminating party may have against the other
party or any other party under the terms of this Agreement or otherwise.
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ARTICLE 10
CASUALTY AND CONDEMNATION
10.1 Casualty.
(a) Until the Possession Time, the risk of loss of or damage
to the Assets shall be and remain with Seller. If prior to the Possession Time,
there shall occur destruction, loss or damage to any of the Assets due to fire,
flood, accident, explosion, seismic vibration, riot, mud slide, act of God,
public enemy or other casualty (an "Event of Casualty"), Seller shall give Buyer
prompt written notice of such destruction, loss or damage and shall apply all
insurance proceeds to restore the Assets to substantially the same condition as
they were in prior to the destruction, loss or damage.
(b) If the insurance proceeds payable by reason of an Event of
Casualty (plus the amount of any deductible) are not sufficient to pay all costs
of repair of such destruction, loss or damage, and if Seller does not undertake
to repair such destruction, loss or damage to substantially the same condition
as they were in prior to the destruction, loss or damage, Buyer may, at Buyer's
option, terminate this Agreement and the transactions contemplated thereby.
10.2 Condemnation
If prior to the Possession Time, all or any part of the Assets
shall be taken, or threatened to be taken in the exercise of the power of
eminent domain by any sovereign, municipality or other public or private
authority or otherwise impaired by any governmental agency or authority, Seller
shall give Buyer prompt written notice of such taking or threatened taking or
impairment within five (5) business days after it becomes aware thereof. In the
event such taking or impairment would materially interfere with the use and
operation of the Business as conducted prior to the Closing Date, Buyer may, at
its option, terminate this Agreement and the transactions contemplated thereby.
ARTICLE 11
GENERAL PROVISIONS
11.1 Complete Agreement; No Third Party Rights; Choice of Law;
Counterparts.
This Agreement: (a) constitutes the entire agreement and
supersedes all other prior agreements and undertakings (both written and oral),
among the parties hereto with respect to the subject matter hereof; (b) is not
intended to confer upon any person any rights or remedies hereunder or with
respect to the subject matter hereof except as specifically provided in this
Agreement; (c) shall be governed by, and construed in accordance with, the
internal laws (and not the law of conflicts) of the State of Missouri; and (d)
may be executed in two or more counterparts, each of which shall be deemed to be
an original, but all such counterparts together shall constitute a single
agreement.
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11.2 Notices.
Except as may otherwise expressly be provided herein, any notice
required or desired to be served, given or delivered hereunder shall be in
writing, and shall be deemed to have been validly served, given or delivered
upon the earlier of (a) personal delivery to the addresses set forth below, (b)
in the case of facsimile transmission, immediately upon confirmation of
completion of transmission, (c); in the case of mailed notice, five (5) business
days after deposit in the mail, with proper postage for registered or certified
mail, return receipt requested, prepaid, or (d) in the case of notice by Federal
Express or other reputable overnight courier service, two (2) business days
after delivery to such courier service, addressed to the party to be notified as
follows:
If to Seller: c/o Au Bon Pain Co., Inc.
19 Fid Kennedy Avenue
Boston, Massachusetts 02210-2497
Attention: Mr. Ronald M. Shaich
Co-Chairman and
Chief Executive Officer
and
Mr. Louis I. Kane
Co-Chairman
telecopier (617) 423-7879
with a copy to: Gadsby & Hannah LLP
225 Franklin Street
Boston, Massachusetts 02110
Attention: Walter D. Wekstein, Esq.
Lawrence R. Katz, Esq.
telecopier (617) 345-7050
If to Seller: Bunge Foods Corporation
3701 Algonquin Road, Suite 360
Rolling Meadows, Illinois 60008
Attention: General Manager
telecopier (847) 342-0029
with a copy to: Bunge Corporation
11720 Borman Drive
St. Louis, Missouri 63146
Attention: Legal Department
telecopier (314) 994-6521
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11.3 Further Assurances.
Subject to the terms and conditions provided in this
Agreement, each of the parties hereto agrees to use all reasonable efforts to
take, or cause to be taken, all actions, 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 Closing Date any further action is necessary to carry
out the purposes of this Agreement, Seller or Buyer, as the case may be, shall
take, or cause to be taken all such necessary actions.
11.4 Expenses.
All costs and expenses incurred in connection with
consummation of the transactions provided for in this Agreement shall be paid by
the party or parties incurring the same.
11.5 Amendment/Waiver.
This Agreement may be amended or modified only by a written
instrument executed by both Buyer and Seller. Compliance with or performance
under any term or provision of this Agreement may be waived only in writing
signed by the party to be charged with such waiver.
11.6 Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns. This
Agreement may not be assigned by either party without the prior written consent
of the other party.
11.7 Captions.
Captions and headings to Articles and Sections herein are
inserted for convenience of reference only and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement.
11.8 Sales Taxes.
Buyer shall solely be responsible for(a) any sales, transfer
and similar taxes and all recording and similar fees applicable to the
transactions contemplated by this Agreement; and (b) the costs and expenses
incurred in connection with obtaining all permits and licenses required by Buyer
to operate the Plant after the Closing.
11.9 Public Announcements.
Neither Buyer nor Seller, without the prior consent of the
other shall, disclose to any person or entity prior to the Closing the existence
of this Agreement or the transactions contemplated hereby, except to the extent
required by applicable law (including without
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limitation any securities law or regulation of the Securities and Exchange
Commission or the National Association of Securities Dealers).
11.10 Severability.
If any term or provision of this Agreement is determined by a
court of competent jurisdiction to be invalid, illegal or incapable of being
enforced by any law or public policy, all other terms or provisions of this
Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party.
11.11 Exhibits and Schedules.
Each of the Exhibits and Schedules to this Agreement is hereby
incorporated herein by this reference and expressly made a part hereof.
11.12 Equitable Remedies.
Since damages, in the event of breach of any term or condition
of this Agreement, would be difficult, if not impossible, to ascertain, the
parties hereto may obtain in addition to any other remedy available to it, an
injunction restraining such breach and specific performance of any such breached
term or condition. No bonds or other securities shall be required in connection
therewith.
11.13 Joint Preparation.
This Agreement has been prepared jointly by the parties with
assistance from their respective legal counsel.
11.14 Investigations.
Buyer may rely upon the representations and warranties made by
Seller and Au Bon Pain in this Agreement regardless of any investigation made,
or which may be made, by or on behalf of Buyer except and to the extent of
Buyer's actual knowledge at or prior to the Closing of the inaccuracy of any
such representations and warranties.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
entered into as an instrument under seal as of the day and year first above
written.
BUNGE FOODS CORPORATION
By: /s/ Dexter M. Frye
---------------------
Dexter M. Frye
Senior Vice President
ABP MIDWEST MANUFACTURING CO., INC.
By: /s/ Ronald M. Shaich
-----------------------
Ronald M. Shaich,
Executive Vice President
AU BON PAIN CO., INC.
By: /s/ Ronald M. Shaich
------------------------
Ronald M. Shaich
Co-Chairman and Chief Executive Officer
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AMENDMENT TO ASSET PURCHASE AGREEMENT
This amendment ("Amendment"), dated as of March 23, 1998, is to that
certain Asset Purchase Agreement dated February 11, 1998 (the "Agreement") by
and among ABP Midwest Manufacturing Co., Inc., a Delaware corporation
("Seller"), Au Bon Pain Co., Inc., a Delaware corporation ("Au Bon Pain"), and
Bunge Foods Corporation, a Delaware corporation ("Buyer"), for, among other
things, the sale of Seller's manufacturing plant in Mexico, Missouri (the
"Plant") to Buyer. Capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to them in the Agreement.
WHEREAS, the parties desire that the Agreement be amended to reflect
changes that have occurred, and to correct inaccuracies discovered, since the
parties entered into the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree that,
anything to the contrary in the Agreement notwithstanding:
1. Schedule 1.1(f) to the Agreement, item 1, Delivery Order Number 6,
incorrectly indicates that the following piece of equipment leased from
Mercantile Leasing Corporation will be transferred to Buyer: Adamatic
Double Bank Knife Divider/Former Model RK4200. This piece of equipment is
not located at the Plant, is not used in the operation of the Assets being
sold to Buyer, and, therefore, the lease obligations for this piece of
equipment, as well as this piece of equipment, is to remain with Seller.
2. Section 1.1(i) to the Agreement is hereby deleted and restated in its
entirety as follows:
(i) All Seller's designs, models, prototypes, plans, specifications,
engineering and other drawings and everything related thereto; all Seller's
sales materials, catalogs, advertising, marketing and promotional
materials; all Seller's customer and supplier lists, mailing lists; and
copies of Seller's sales records, account histories, correspondence with
customers, and records of purchases from correspondence with suppliers
(collectively, the "Intangibles");
3. Schedule 1.7 to Exhibit 7.1(a)1 to the Agreement (which is Schedule 1.7 to
the Au Bon Pain Supply Agreement) shall be deleted and replaced with the
attached revised Schedule 1.7.
4. Schedule 1.7 to Exhibit 7.1(a)2 to the Agreement (which is Schedule 1.7 to
the Saint Louis Bread Supply Agreement) shall be deleted and replaced with
the attached revised Schedule 1.7.
5. Due to a change in product codes, Exhibit A to Exhibit 7.1(b)1 to the
Agreement (which is Exhibit A to the Au Bon Pain Wholesale Manufacturing
License) shall be deleted and replaced with the attached revised Exhibit A.
6. Due to a change in product codes, Exhibit A to Exhibit 7.1(b)2 to the
Agreement (which is Exhibit A to the Saint Louis Bread Wholesale
Manufacturing License) shall be deleted and replaced with the attached
revised Exhibit A.
7. The following additional lease, which was inadvertently omitted from the
Agreement at the time of its execution, is hereby included with the Leases
listed on Schedule 1.1(f) to the Agreement and is to be assumed by Buyer:
First United Leasing lease for Skyjack Scissorlift
8. The following additional contracts, which were inadvertently omitted from
the Agreement at the time of its execution, are hereby included with the
Contracts listed on Schedule 1.1(g) to the Agreement and are to be assumed
by Buyer:
Rabbinical Counsel of New England Agreement
Mitel Financial Services Agreement
Diamond Walnut Growers, Inc. Agreement
9. The following additional contracts, which have been entered into since the
execution of the Agreement, are hereby included with the Contracts listed
on Schedule 1.1(g) to the Agreement and are to be assumed by Buyer:
South Georgia Pecan Co. Agreement
Con Agra Flour Milling Company Agreement
Slane International, Inc. Agreement (the "Slane Agreement")
Container Systems Agreement (the "Container Systems Agreement")
In addition, Seller has paid a deposit of $6,975 to Container Systems in
connection with the Container Systems Agreement and a deposit of $10,000 to
Slane International, Inc. in connection with the Slane Agreement. The Final
Net Book Value and Purchase Price shall reflect that these payments are to
be refunded to Seller.
10. Pursuant to Section 1.1(g) of the Agreement, Buyer agreed to assume the
obligation to pay the balance due to Trademark Equipment, Inc. for two
ovens shipped to the Plant in January 1998. Seller has since paid for said
ovens. The Final Net Book Value and Purchase Price shall reflect that this
payment is to be refunded to Seller.
11. Seller shall pay to Buyer the amounts due from Seller to Seller's employees
for vacation pay (the "Vacation Pay"). Upon receipt, Buyer shall be
responsible for and assume liability to such employees for the vacation pay
in the amounts paid and for the account of the employees designated by
Seller. The Vacation Pay shall be paid by Seller to Buyer at the time that
the Final Net Book Value is determined.
12. The insurance coverage required to be obtained and maintained by Au Bon
Pain pursuant to the Au Bon Pain Supply Agreement and by Saint Louis Bread
pursuant to the Saint Louis Bread Supply Agreement shall be satisfied if,
in the aggregate, such policy or policies equal the required amounts set
forth on Schedule 12 to either Supply
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Agreement, so long as Au Bon Pain and Saint Louis Bread are under common
ownership. In the event that Au Bon Pain and Saint Louis Bread cease to be
under common ownership, each shall obtain and maintain its own policy with
the minimum coverage required pursuant to each Supply Agreement.
13. Any provision contained in the Agreement to the contrary notwithstanding,
the Closing shall occur on Monday, March 23, 1998; provided, however, that
all items of expense and income associated with operating the Plant from
and after 12:01 a.m. on Sunday, March 22, 1998 shall be for the account and
benefit of Buyer. The foregoing shall not be deemed to modify the
Possession Time.
14. Section 1.7 of the Agreement to the contrary notwithstanding, Seller and
Buyer shall mutually determine the allocation of the Purchase Price for tax
purposes within sixty (60) days after the Closing Date.
15. This Amendment may be executed in two or more counterparts. Each
counterpart, including a signature page executed by each of the parties
hereto shall be an original counterpart of this Amendment, but all of such
counterparts together shall constitute one instrument.
16. With the exception of the Amendment hereby incorporated into the Agreement,
unless specifically modified by the foregoing, the remaining terms and
conditions of the Agreement are hereby ratified and confirmed.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
entered into as an instrument under seal as of the day and year first above
written.
BUNGE FOODS CORPORATION
By /s/ Michael M. Scharf
--------------------------------
Michael M. Scharf
Senior Vice President
ABP MIDWEST MANUFACTURING CO., INC.
By /s/ Anthony J. Carroll
--------------------------------
Anthony J. Carroll
Vice President and Treasurer
AU BON PAIN CO., INC.
By /s/ Anthony J. Carroll
--------------------------------
Anthony J. Carroll
Vice President and Treasurer
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INDEX OF EXHIBITS
TO ASSET PURCHASE AGREEMENT
Exhibit No.* Item
- ----------- ----
Exhibit 1.6(b) Bill of Sale
Exhibit 5.1(k) Non-foreign Status Certification to Seller
Exhibit 5.1(n) (Assistant) Secretary Certificate to Seller
Exhibit 5.1(o) Vice President (or Senior Officer) Certificate
of Seller and Au Bon Pain
Exhibit 5.1(q) Gadsby & Hannah LLP Opinion to Buyer
Exhibit 5.1(s) Title Insurance
Exhibit 5.1(s)(2) Survey
Exhibit 5.2(m) Vice President (or Senior Officer) Certificate
of Buyer
Exhibit 5.2(o) Murray H. Warschauer Opinion to Seller
Exhibit 7.1(a)(1) Au Bon Pain Supply Agreement
Exhibit 7.1(a)(2) Saint Louis Bread Supply Agreement
Exhibit 7.1(b)(1) Au Bon Pain Manufacturing License
Exhibit 7.1(b)(2) Saint Louis Bread Manufacturing License
Exhibit 8.2(a)(iv) Assumed Liabilities Assignment and Assumption
Agreement
* All Exhibits have been omitted. Copies will be provided supplementally to
the Commission upon request, provided that the Company reserves the right
to request confidential treatment for same.