SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) February 5, 1999
B&G Foods, Inc.
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(Exact Name of Registrant as Specified in Charter)
Delaware 333-39813 13-3916496
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(State or Other (Commission File (IRS Employer
Jurisdiction of Number) Identification
Incorporation) No.)
426 Eagle Rock Avenue, Roseland, New Jersey 07068
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (973) 228-2500
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Not Applicable
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(Former Name or Former Address, if Changed Since Last Report)
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Item 2 Acquisition or Disposition of Assets
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B&G Foods, Inc. (the "Company") is filing this Form 8-K to report the
acquisition by its wholly-owned subsidiary of the business, assets and
operations of International Home Foods, Inc. relating to the Polaner brand, the
Maxams brand, the Eagle Rock Farms brand and assorted products, including
associated private label products (collectively, the "Acquired Business").
On February 5, 1999, Roseland Distribution Company ("RDC"), an
indirect, wholly-owned subsidiary of the Company, acquired the Acquired Business
pursuant to an Asset Purchase Agreement (the "Asset Purchase Agreement") dated
as of January 12, 1999 among RDC, International Home Foods, Inc. ("IHFI") and M.
Polaner, Inc., a wholly-owned subsidiary of IHFI (collectively, the "Sellers").
Pursuant to the Asset Purchase Agreement, RDC purchased the Acquired Business
for $30,000,000 in cash. RDC has post-closing obligations under the Asset
Purchase Agreement, which has been filed as Exhibit 1 to this report. Sellers
agreed to provide certain transition services to RDC for a limited period of
time pursuant to a transition services agreement, which has been filed as
Exhibit 2 to this report.
The Company is not a party to the Asset Purchase Agreement but has
guaranteed RDC's obligations thereunder pursuant to a Guaranty dated as of
January 12, 1999, which has been filed as Exhibit 3 to this report.
In connection with the Asset Purchase Agreement, the Company and its
lenders under its senior credit facility entered into an amendment of the
Company's credit agreement. The Consent, Waiver and Second Amendment, dated as
of January 12, 1999, to the Second Amended and Restated Credit Agreement, dated
as of August 11, 1997, among the Company, the subsidiaries of the Company, and
Heller Financial, Inc., as agent and lender, and the other lenders party
thereto, has been filed as Exhibit 4 to this report.
The Company announced the Asset Purchase Agreement pursuant to a press
release dated January 13, 1999, which has been filed as Exhibit 5 to this
report.
Item 7 Financial Statements, Pro Forma Financial Statements and Exhibits
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* (a) Financial Statements of Acquired Business
* (b) Pro Forma Financial Information
(c) Exhibits
(1) Asset Purchase Agreement, dated as of January 12, 1999, by and among
Roseland Distribution Company, International Home Foods, Inc. and M.
Polaner, Inc.
(2) Transition Services Agreement, dated as of February 5, 1999, among
International Home Foods, Inc., M. Polaner Inc. and Roseland
Distribution Company.
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* These items will be filed by a supplementary filing within the time period
specified by the rules promulgated under the Securities Exchange Act of 1934,
as amended.
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(3) Consent, Waiver and Second Amendment, dated as of January 12, 1999, to
the Second Amended and Restated Credit Agreement, dated as of August
11, 1997, among B&G Foods, Inc., the subsidiaries party thereto, Heller
Financial, Inc., as agent and lender, and the other lenders party
thereto.
(4) Guaranty, dated January 12, 1999, of B&G Foods, Inc. in favor of
International Home Foods, Inc. and M. Polaner, Inc.
(5) Press release dated January 13, 1999.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
B&G FOODS, INC.
Date: February 19, 1999 By: /s/ David Wenner
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President
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EXHIBITS INDEX
Exhibit
Number Description
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*(a) Financial Statements of Acquired Business
*(b) Pro Forma Financial Information
(c) Exhibits
(1) Asset Purchase Agreement, dated as of January 12, 1999, by and
among Roseland Distribution Company, International Home Foods,
Inc. and M. Polaner, Inc.
(2) Transition Services Agreement, dated as of February 5, 1999, among
International Home Foods, Inc., M. Polaner, Inc. and Roseland
Distribution Company.
(3) Guaranty, dated as of January 12, 1999, of B&G Foods, Inc. in
favor of International Home Foods, Inc. and M. Polaner, Inc.
(4) Consent, Waiver and Second Amendment, dated as of January 12,
1999, to the Second Amended and Restated Credit Agreement, dated
as of August 11, 1997, among B&G Foods, Inc., the subsidiaries
party thereto, Heller Financial, Inc., as agent and lender, and
the other lenders party thereto.
(5) Press release dated January 13, 1999.
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* These items will be filed by a supplementary filing within the time period
specified by the rules promulgated under the Securities Exchange Act of 1934,
as amended.
EXHIBIT 1
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ASSET PURCHASE AGREEMENT
DATED AS OF JANUARY 12, 1999
BETWEEN
ROSELAND DISTRIBUTION COMPANY
AND
INTERNATIONAL HOME FOODS, INC.
AND
M. POLANER, INC.
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TABLE OF CONTENTS
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Page
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1.Sale and Purchase of Assets.................................................1
1.1. Sale and Purchase of Assets......................................1
1.2. Liabilities Assumed by Purchaser.................................3
1.3. Transfer Taxes...................................................5
2.Purchase Price and Purchase Price Adjustment................................5
2.1. Base Purchase Price..............................................5
2.3. Allocation of Purchase Price.....................................6
3.Representations and Warranties..............................................6
3.1. Representations and Warranties of Sellers........................6
3.2. Representations and Warranties of Purchaser......................13
4.Closing....................................................................14
5.Conditions to Closing; Closing Deliveries..................................14
5.1. Conditions Precedent to Obligations of Purchaser................14
5.2. Conditions Precedent to the Obligations of Sellers..............16
6.Termination................................................................17
7.Certain Covenants..........................................................17
7.1. Conduct of Acquired Business....................................17
7.2. Access..........................................................18
7.3. Transition Services.............................................18
7.4. Co-Pack Agreement...............................................18
7.5. Termination of Seller Contracts.................................18
7.6. Hart-Scott-Rodino Antitrust Improvement.........................18
7.7. Consents........................................................18
7.8. Exclusivity.....................................................19
7.9. Change of Name..................................................19
7.10. Financing......................................................19
7.11. Certain Agreements Regarding Inventory.........................19
8.Indemnification and Certain Post-Closing Matters...........................21
8.1. Indemnification Generally.......................................21
8.2. Limitations of Damages..........................................23
8.3. Exclusive Remedy................................................24
8.4. Allocation of Purchase Price....................................24
9.Miscellaneous..............................................................24
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9.1. Certain Definitions.............................................24
9.2. Consent to Jurisdiction.........................................26
9.3. Further Actions.................................................26
9.4. No Broker.......................................................26
9.5. Expenses........................................................27
9.6. Entire Agreement................................................27
9.7. Waiver of Compliance with Bulk Sales Law........................27
9.8. Notices.........................................................27
9.9. Governing Law...................................................28
9.10. Assignability..................................................28
9.11. Survival of Representations and Warranties.....................28
9.12. Waivers and Amendments.........................................29
9.13. Third Party Rights.............................................29
9.14. Illegality.....................................................29
9.15. Taxes..........................................................29
9.16. Descriptive Headings...........................................29
SCHEDULES
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Schedule 1.1(a)(i) - Equipment
Schedule 1.1(a)(iii) - Seller Contracts
Schedule 2.2 - Allocation of Purchase Price
Schedule 3.1(b) - Consents, Approvals, Waivers, Etc.
Schedule 3.1(c) - Financial Statements
Schedule 3.1(d)(i) - Liens
Schedule 3.1(d)(ii) - Machinery and Equipment
Schedule 3.1(e) - Litigation
Schedule 3.1(f) - Compliance with Laws
Schedule 3.1(h) - Customers and Suppliers
Schedule 3.1(i) - Patents, Trademarks, Etc.
Schedule 3.1(j) - Material Contracts
Schedule 3.1 (k) - Insurance
Schedule 3.1(l) - Inventory
Schedule 3.2(b) - Purchaser's Consents
EXHIBITS
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Exhibit A - Form of Bill of Sale and Assignment
Exhibit B - Form of Assignment of Intellectual Property
Exhibit C - Form of Assumption Agreement
Exhibit D - Form of Transition Services Agreement
Exhibit E - Form of Co-Pack Agreement
INDEX OF DEFINED TERMS
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Page
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Acquired Business.............................................................1
Act..........................................................................12
Affiliate....................................................................24
Agreement.....................................................................1
Ancillary Documents...........................................................6
Asserted Liability...........................................................21
Assumed Contracts.............................................................2
Assumed Liabilities...........................................................3
Benefit Plans................................................................24
Claims Notice................................................................21
Closing......................................................................14
Closing Date.................................................................14
Closing Inventory Amount.....................................................19
Closing Inventory Statement..................................................19
Contracts.....................................................................2
Co-Pack Agreement............................................................17
Credit Facility..............................................................14
Department...................................................................18
Environmental Laws...........................................................24
Environmental Liabilities....................................................24
Equipment.....................................................................1
ERISA........................................................................24
Excluded Assets...............................................................3
Excluded Liabilities..........................................................4
Financial Statements..........................................................7
Financing....................................................................14
FTC..........................................................................18
GAAP..........................................................................7
HSR Act......................................................................18
IHF...........................................................................1
Indemnified Party............................................................21
Indemnifying Party...........................................................21
Instruments of Assignment....................................................15
Instruments of Assumption....................................................16
Intellectual Property.........................................................2
Interim Statements............................................................7
Inventory.....................................................................2
knowledge of Sellers.........................................................24
Lenders......................................................................14
Lien..........................................................................8
Liens.........................................................................8
Litigation Conditions........................................................21
Losses.......................................................................20
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Material Adverse Effect..................................................23, 24
Material Contracts...........................................................11
MPI...........................................................................1
Neutral Auditors.............................................................19
Permitted Liens...............................................................8
Person.......................................................................25
Principal Trademarks..........................................................1
Purchase Price................................................................5
Purchased Assets..............................................................1
Purchaser.....................................................................1
Purchaser Indemnified Parties................................................20
Seller Indemnified Parties...................................................20
Sellers.......................................................................1
Tax..........................................................................25
Taxes........................................................................25
Transition Services Agreement................................................17
Year End Statements...........................................................7
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ASSET PURCHASE AGREEMENT
Asset Purchase Agreement dated as of January 12, 1999 (this
"Agreement") between Roseland Distribution Company a Delaware corporation
("Purchaser"), and International Home Foods, Inc., a Delaware corporation
("IHF") and M. Polaner, Inc., a Delaware corporation and wholly-owned subsidiary
of IHF ("MPI" and, together with IHF, the "Sellers").
R E C I T A L S
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Whereas Sellers desire to sell to Purchaser, and Purchaser desires to
purchase from Sellers, the business and operations of Seller relating to the
Polaner brand, the Maxams brand, the Eagle Rock Farms brand and all associated
products including without limitation private label products (the "Acquired
Business") and the Purchased Assets (as hereinafter defined) of Sellers upon the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual benefits to be derived
and the representations and warranties, conditions and promises herein
contained, and intending to be legally bound hereby, Purchaser and Sellers
hereby agree as follows:
1. Sale and Purchase of Assets.
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1.1. Sale and Purchase of Assets.
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(a) At Closing, Sellers shall convey, sell, transfer, assign
and deliver unto Purchaser and its successors and assigns forever, all of the
right, title and interest of Sellers in the following properties and assets
owned, used or held for use by Sellers in connection with the Acquired Business
or, to the extent relating to the Acquired Business, by any affiliates of
Sellers (hereinafter sometimes collectively referred to as the "Purchased
Assets"):
(i) all tangible personal property used or held for use
exclusively in connection with the Acquired Business, including without
limitation all machinery, equipment, parts, tooling, vehicles, furniture,
leasehold improvements, fixtures, office equipment, supplies and other items of
tangible Personal property owned by Sellers and used or held for use exclusively
in connection with the Acquired Business, including without limitation all such
personal property located in, at or on the Purchaser's facilities located in
Roseland, New Jersey, and all of the Sellers' rights and benefits under any
leases and with respect to any of the foregoing items, all of the material
foregoing items having been described on Schedule 1.1(a)(i) hereto
(collectively, the "Equipment");
(ii) all intangible assets, including without
limitation the brand names, trademarks, copyrights and registrations and
applications for registrations thereof listed on Schedule 1.1(a)(ii) and all
associated goodwill (the "Principal Trademarks") and any and all patents,
copyrights, trade names, trade secrets, service marks, customer lists,
relationships and arrangements with suppliers (including without limitation
suppliers of raw materials), customers, authors and designers, sales literature,
inventions, formulae, technology, UPC codes, processes and computer software,
used or held for use exclusively in connection with the Acquired Business
<PAGE>
and all licenses, agreements, applications and registrations with respect to any
of the foregoing, together with any goodwill associated therewith (collectively
with the Principal Trademarks, the "Intellectual Property");
(iii) all rights and benefits of Sellers under all
contracts, leases, agreements, licenses, commitments (collectively, "Contracts")
(i) described on Schedule 3.1(j) hereto or (ii) that (A) relate exclusively to
the Acquired Business, (B) under the terms of this Agreement are not required to
be disclosed pursuant to Section 3.1(j), and (C) have been entered into in the
ordinary course of the Acquired Business and are consistent in nature and scope
with past practices of the Acquired Business (collectively, the "Assumed
Contracts"), provided, however, that the Assumed Contracts shall not include the
Contracts identified on Schedule 1.1(a)(iii) hereto (the "Seller Contracts");
(iv) except as provided in Section 7.11, all inventory
held for resale and all raw materials, work in process, finished products,
shipments in transit, wrapping, supply and packaging items related exclusively
to the Acquired Business (collectively, the "Inventory");
(v) all licenses, authorizations, permits and other
approvals issued by any governmental agency, public or self-regulatory
authority, and all applications therefor pending, used or held for use
exclusively in connection with the Acquired Business;
(vi) all blueprints, designs, drawings, patterns,
specifications, work plans and scheduling procedures, exclusively related to, or
exclusively required or used in connection with, the production of products and
products in development of the Acquired Business;
(vii) all books, records, files and correspondence
(whether in original or photostatic form) to the extent used or held for use in
connection with, or relating to the Acquired Business, including lists of past
customers and suppliers;
(viii) all goodwill associated with or attributable to
the Acquired Business; and
(ix) any other tangible asset owned by Sellers and used
or held for use exclusively in connection with the Acquired Business which is
necessary to operate the Acquired Business as presently conducted (other than
the Excluded Assets, as hereafter defined).
(b) To the extent any asset of the type set forth in Section
1.1(a), other than any Excluded Assets, related exclusively to the Acquired
Business is owned, used or held for use by any affiliate of Seller, such asset
is included with the term "Purchased Assets" and Sellers shall cause such
affiliate to convey such assets to Purchaser on the Closing Date in accordance
with the provisions of this Agreement.
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(c) Notwithstanding the provisions of Section 1.1(a), the
Purchased Assets shall not include any right, title or interest of Sellers or
their affiliates in, to or under any of the following properties, assets or
items (collectively, the "Excluded Assets"):
(i) cash, including bank balances and bank accounts,
cash equivalents and similar type items on hand on the Closing Date;
(ii) all accounts and notes receivable (including
without limitation any claims, remedies, and other rights related thereto)
entered into prior to the Closing Date and relating to the Acquired Business;
(iii) the Tax returns of Seller;
(iv) all refunds of Taxes to the extent that Taxes
being refunded were an Excluded Liability;
(v) the articles or certificate of incorporation and
by-laws of Sellers and the corporate minutes, corporate seals and stock books of
Sellers;
(vi) all refunds, deposits, prepayments or prepaid
expenses (including any prepaid insurance premiums);
(vii) all rights to insurance or indemnity, and all
claims, causes of action, rights of recovery or set-off of any kind and against
any person, relating to or covering the Acquired Business before the Closing or
related to the Excluded Assets; and
(viii) any franchise tax or sales and use permits of
Sellers.
1.2. Liabilities Assumed by Purchaser.
--------------------------------
(a) Subject to the terms and provisions of this Agreement,
and except as otherwise provided by this Section 1.2, Purchaser shall assume no
liabilities of Sellers except the following liabilities (collectively, the
"Assumed Liabilities"):
(i) liabilities and obligations arising after the
Closing Date relating to the Assumed Contracts;
(ii) all liabilities and obligations expressly assumed
pursuant to this Agreement by Purchaser;
(iii) all liabilities and obligations for trade
promotion payables or deductions with respect to sales of products of the
Acquired Business after the Closing Date;
(iv) all liabilities and obligations for committed
marketing expenditures for programs of the Acquired Business to be in effect
after the Closing Date; and
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(v) all liabilities and obligations for consumer
coupons for products of the Acquired Business received by Sellers' coupon
redemption agents for reimbursement after the Closing Date.
(b) Without limiting the generality of Section 1.2(a) hereof,
and regardless of whether any of the following may be disclosed to Purchaser
pursuant to Section 3.1 hereof or otherwise or whether Purchaser may have
knowledge of the same, except as specifically provided as an Assumed Liability
in this Agreement, Purchaser shall not assume any obligation or liability
relating to the Acquired Business or the Purchased Assets, whether direct or
indirect, absolute or contingent, known or unknown and whether or not accrued
(collectively, the "Excluded Liabilities"). Without limiting the generality of
the foregoing, each of the following shall be Excluded Liabilities and none
shall be Assumed Liabilities for purposes of this Agreement:
(i) Taxes incurred in or attributable to any period up
to and including the Closing Date, regardless of whether such obligations or
liabilities may be set forth in the Financial Statements (as defined in Section
3.1(c)) or disclosed in the notes or schedules thereto;
(ii) any civil or criminal penalties (including
interest) imposed upon IHF or MPI on account of any fraudulent, criminal,
intentional, willful or negligent act or omission of IHF or MPI or any violation
of law by IHF or MPI;
(iii) all liabilities arising out of, based upon or
resulting from any actions, suits, claims or proceedings, whether in law or
equity, pending or threatened, based upon any transactions or occurrences or
acts or omissions of IHF or MPI or the Acquired Business on or prior to the
Closing Date;
(iv) all liabilities and obligations of Sellers
relating to employees of Sellers or their affiliates, including but not limited
to Benefit Plans, pension plans, policies, employment agreements, compensation
agreements, stock appreciation rights, or stock option plans, accrued vacation
or holiday pay, profit-sharing or bonuses, fringe benefits, severance pay,
retirement benefits, health insurance or other benefits, including continued
group health care coverage under applicable law, sick pay, or other benefits
arising out of or accrued with respect to employment of any person by Sellers;
(v) all liabilities and obligations for Environmental
Liabilities;
(vi) all liabilities and obligations for product
liability claims for products manufactured or sold by Sellers or the Acquired
Business through the Closing Date, other than liabilities and obligations that
are a direct and primary result of acts or omissions of Purchaser or its
affiliates;
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(vii) all liabilities and obligations to the extent
applicable to periods prior to Closing for infringement by Sellers or the
Acquired Business of any intellectual property rights of any Person;
(viii) all liabilities and obligations arising prior to
the Closing Date under that certain Royalty Agreement dated March 27, 1981 by
and between Food Creations, Inc. and M. Polaner, Inc.;
(ix) all liabilities and obligations for sales
commissions payable to sales personnel, agents or representatives of Sellers for
sales of products of the Acquired Business occurring through the Closing Date
and for sales of all other products whether occurring prior to, on or following
the Closing Date;
(x) all liabilities pertaining exclusively to any of
the Excluded Assets; and
(xi) all liabilities of Sellers under this Agreement.
(c) For all purposes of this Agreement, any reference to any
"liability" or "obligation" of Sellers or the Acquired Business shall include
without limitation (i) any right to payment and (ii) any right to an equitable
remedy, in each case whether or not such right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured.
1.3. Transfer Taxes.
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Sellers shall pay the sales and transfer taxes, if any, imposed
upon the sales and transfers provided for in this Agreement and Purchaser shall
promptly reimburse Sellers for 50% of such sales, use and transfer taxes. The
sales, use and transfer tax returns required in connection with such taxes shall
be timely prepared and filed by the party normally obligated by law or
regulation to make such filing. The parties agree to use commercially reasonable
efforts to cooperate with each other in connection with the preparation and
filing of such returns, in obtaining all available exemptions from such taxes
and in timely providing each other with resale certificates and any other
documents necessary to satisfy such exemptions.
2. Purchase Price and Purchase Price Adjustment.
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2.1. Base Purchase Price.
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Purchaser shall pay to Sellers at the Closing, by wire transfer of
immediately available funds to an account designated by Sellers, the aggregate
amount of $30,000,000 (the "Purchase Price").
2.2. Allocation of Purchase Price.
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The Purchase Price shall be allocated among the Purchased Assets
in accordance with Schedule 2.2 hereto.
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3. Representations and Warranties.
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3.1. Representations and Warranties of Sellers.
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Sellers hereby, jointly and severally, represent and warrant to
Purchaser as follows, and acknowledge and confirms that Purchaser is relying
upon such representations and warranties in connection with the execution,
delivery and performance of this Agreement, notwithstanding any investigation
made by Purchaser or on its behalf.
(a) Organization and Standing; Due Authorization.
--------------------------------------------
(i) Each Seller is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and is duly licensed and qualified to transact business as a
foreign corporation, and is in good standing in, the jurisdictions where it is
required to qualify in order to conduct the Acquired Business and otherwise to
own, lease and operate its properties, to carry on the Acquired Business as now
conducted and to enter into and perform this Agreement. The Acquired Business is
not operated through any subsidiary of IHF except for MPI, or through any other
entity or enterprise other than IHF or MPI.
(ii) Each Seller has the requisite power to enter into,
execute and deliver, and perform its obligations under this Agreement, the
Instruments of Assignment and Assumption and all of the other agreements,
certificates and documents delivered or to be delivered on or prior to the
Closing Date in connection with the transactions contemplated herein (the
"Ancillary Documents"). The execution, delivery and performance by each Seller
of this Agreement and the Ancillary Documents to which it is a party, and the
consummation by each Seller of the transactions contemplated hereby and thereby,
have been duly authorized by all requisite corporate action. This Agreement and
the Ancillary Documents to which any Seller is a party have been duly and
validly executed and delivered by each Seller and constitute the valid and
binding obligations of each Seller, enforceable against such Seller in
accordance with their respective terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, moratorium or other similar laws
affecting or relating to creditors' rights generally.
(b) Consents, Authorizations and Binding Effect. Each Seller
may execute, deliver and perform this Agreement without the necessity of
obtaining any consent, approval, authorization or waiver or giving any notice,
except for such consents, approvals, authorizations or waivers described on
Schedule 3.1(b) hereto or which have been obtained and are unconditional and in
full force and effect and such notices which have been duly given. The
execution, delivery and performance of this Agreement and the Ancillary
Documents by Sellers will not:
(i) constitute a violation of the certificate or articles of
incorporation or the by-laws of either Seller;
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(ii) conflict with, result in the breach of or constitute a
default (or give use to any right of termination, cancellation or acceleration)
under any contract, restriction or other instrument to which any Seller is a
party or by which any Seller, the Acquired Business or the Purchased Assets may
be bound or affected;
(iii) constitute a violation of any statute, judgment, order,
decree, regulation or rule of any court, governmental authority or arbitrator
applicable or relating to the Purchased Assets or the Acquired Business; or
(iv) result in the creation of any Lien (as defined in
Section 3.1(d)) upon any of the Purchased Assets.
No consent, approval or authorization of, waiver from or notice to any other
party is required to maintain in full force and effect for the benefit of
Purchaser the Material Contracts, other than such consents and waivers described
on Schedule 3.1(b) hereto or which have been obtained and are unconditional and
in full force and effect and such notices which have been duly given.
(c) Financial Statements and Financial Condition. Each Seller
has maintained its books of account in accordance with applicable laws, rules
and regulations, and such books and records are, and during the periods covered
by the Year End Statements and Interim Statements were, correct and complete in
all material respects, fairly and accurately reflect the income, expenses,
assets and liabilities of the Acquired Business, including the nature thereof
and the transactions giving rise thereto, and provided a fair and accurate basis
for the preparation of the Financial Statements. Attached as Schedule 3.1(c)
hereto are the balance sheets as of December 31, 1996 and December 31, 1997 and
the statements of variable brand profit for the years ended December 31, 1996
and December 31, 1997 of the Acquired Business (collectively, the "Year End
Statements") and the balance sheets as of November 30, 1998 and the statement of
variable brand profit for the eleven-month period ending November 30, 1998 of
the Acquired Business (the "Interim Statements" and, together with the Year End
Statements, the "Financial Statements"). The Financial Statements have been
prepared in conformity with generally accepted accounting principles ("GAAP")
consistently applied and in accordance with the principals identified therein,
are correct and complete in all material respects, and present fairly the
financial position of the Acquired Business as of the dates of such statements
and the results of operations for the periods covered by such statements. As of
the date hereof, the Acquired Business has no liabilities other than: (i) those
set forth or fully reserved against in the Interim Statements; (ii) those
incurred since November 30, 1998 in the ordinary course of business in arms'
length transactions and consistent in nature and scope with past practice and
which do not exceed $50,000 in the aggregate; (iii) executory obligations under
the Assumed Contracts; and (iv) liabilities that are Excluded Liabilities.
Without limiting the generality of the foregoing, the aggregate liability and
obligations of Sellers and the Acquired Business for consumer coupons for
products of the Acquired Business, and any fines, penalties or off-invoice
deductions imposed by any retail customer arising from the redemption of such
coupons, does not exceed $100,000.
(d) Title and Condition of Purchased Assets. Sellers have,
and pursuant to this Agreement will convey, sell, transfer and assign to
Purchaser at Closing, good and marketable title to the Purchased Assets, free
and clear of liens, encumbrances, claims,
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security interests, mortgages, pledges, agreements and rights of others
(individually a "Lien" and collectively "Liens"), other than Liens described on
Schedule 3.1(d)(i) hereto, and other than Permitted Liens. "Permitted Liens"
shall mean (i) only to the extent that they do not impair in any material
respect the value of or marketability of title to such assets, the conduct of
the Acquired Business or the use of the Purchased Assets in the manner currently
used by Sellers, the following: (A) Liens for Taxes (as defined herein),
assessments or governmental charges or levies not yet due or payable and being
diligently contested in good faith by appropriate proceedings and (B) statutory
Liens of carriers, warehousemen, mechanics, materialmen and the like arising in
the ordinary course of business and for obligations not yet due and payable, and
(ii) Liens to be released in full at or prior to the time of Closing. The
Equipment constitutes all of the tangible assets used in the manufacture of the
products of the Acquired Businesses as presently manufactured and, together with
the other Purchased Assets, constitute all of the assets, other than assets used
by Sellers in the operation of both the Acquired Business and one or more other
businesses of Sellers, used in the operation of, and necessary to operate, the
Acquired Business as presently conducted or to be conducted after the Closing in
the ordinary course consistent with past practice.
(e) Litigation. Except as described on Schedule 3.1(e)
hereto, and whether or not covered by insurance, there are no actions, suits,
liens, claims or proceedings, whether in law or equity, or governmental or
administrative investigations pending or, to the best knowledge of Sellers,
threatened against either Seller or the Acquired Business, and no requests for
environmental cleanup actions, cost reimbursement or contribution by any
federal, state or local agencies or by any private parties pending or, to the
best knowledge of Sellers, threatened against either Seller, in connection with
the Acquired Business or with respect to any of the Purchased Assets or the
subject of any contract, lease or agreement to be assigned by Sellers to
Purchaser pursuant to this Agreement, or which questions or challenges the
validity of this Agreement, the Ancillary Documents or any action taken or to be
taken pursuant to this Agreement.
(f) Compliance. Except as described in Schedule 3.1(f),
Sellers are in compliance with, and no default or violation exists under, any
laws, rules, regulations, decrees and orders applicable to the businesses,
operations and properties of the Acquired Business, except where the failure to
be in compliance or such default or violation would not, individually or in the
aggregate, have a Material Adverse Effect. Except as a result of any acts or
omissions of Purchaser, none of Sellers, the Acquired Business, the Purchased
Assets nor the transactions contemplated under this Agreement or the Ancillary
Documents are subject to any judgment, order or decree entered in any lawsuit or
governmental or legal proceeding, and no investigations have been conducted
(other than by Seller) during the three (3) years prior to the date of this
Agreement, in connection with the ownership, operation or use by Sellers of the
Purchased Assets or the operations of the Acquired Business. Sellers have duly
filed all reports and returns required to be filed by each of them with
governmental authorities and obtained all governmental or regulatory permits and
licenses and other governmental consents which are required in connection with
the businesses and operations of the Acquired Business, except where the failure
to file such reports or returns or the failure to obtain such permits, licenses
or consents, individually or in the aggregate, would not have a Material Adverse
Effect or were the direct result of acts or omissions of Purchaser.
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(g) Taxes and Other Payments. IHF has paid or will pay all
Taxes required to be paid on or before the Closing Date. Purchaser will not
incur and Sellers shall indemnify and hold Purchaser and any of Purchaser's
affiliates harmless against any liability or obligation with respect to any
liability or obligation, direct or indirect, absolute or contingent, of Sellers
for any Taxes for any period up to and including the Closing Date. There are no
Liens (other than Permitted Liens) for Taxes upon or pending against or, to the
best knowledge of Sellers, threatened against any of the Purchased Assets.
(h) Customers. Schedule 3.1(h) sets forth a list of the ten
largest customers of the Acquired Business for the eleven months ended November
30, 1998, indicating for each such customer dollar sales or purchases. Except as
described on Schedule 3.1(h) hereto, since November 30, 1998, there has not been
any termination, cancellation or material limitation, modification or change in
the business relationship of the Acquired Business with any such customer and
Sellers are unaware of any threatened loss of any such customer.
(i) Patents, Trademarks, Trade Secrets, Etc.
---------------------------------------
(i) Schedule 1.1(a)(ii) contains a complete and accurate
list of the Intellectual Property and includes all patents and patent
applications, trademarks, service marks, trade names, and registrations and
applications for registration of industrial designs, copyrights, mask works,
trademarks, service marks, trade names, trade dress and domain names used or
held for use by the Acquired Business specifying as to each such item, as
applicable: (i) the owner of the item, (ii) the jurisdictions in which the item
is issued or registered or in which any application for issuance or registration
has been filed, (iii) the respective issuance, registration, or application
number of the item, and (iv) the date of application and issuance or
registration of the item.
(ii) Schedule 3.1(i)(ii) contains a complete and accurate
list of all material licenses, sublicenses, consents and other agreements
(whether written or otherwise) (i) pertaining to any patents, industrial design
rights, trademarks, service marks, trade names, trade dress, copyrights, mask
works, trade secrets, computer software programs (other than standard,
commercially available programs), or other intellectual property exclusively
used or held for use by the Acquired Business, and (ii) by which any Seller or
the Acquired Business licenses or otherwise authorizes a third party to use such
intellectual property. Neither Sellers nor the Acquired Business nor to the
knowledge of Sellers, any other party is in breach of or default under any such
license or other agreement and each such license or other agreement is now and
immediately following the Closing shall be valid and in full force and effect.
(iii) One of Sellers owns or is licensed or otherwise has
the exclusive right to use, and has the right to bring actions for the
infringement of, all patents, industrial design rights, trademarks, service
marks, trade names, trade dress, copyrights, mask works, inventions, technology,
know-how, designs, formulae, trade secrets, confidential and proprietary
information, computer software programs (other than standard, commercially
available programs), domain names, and other intellectual property necessary for
the operation of the Acquired Business as it is currently conducted.
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(iv) The business operations of the Acquired Business do
not, to the knowledge of Sellers, infringe on the patents, industrial design
rights, trademarks, service marks, trade names, trade dress, copyrights, mask
works, trade secrets or other intellectual property rights of any third party,
and no claim has been made, notice given, or dispute arisen to that effect. No
Seller has any pending claims that a third party has violated or infringed any
of Sellers' patents, industrial design rights, trademarks, service marks, trade
names, trade dress, copyrights, trade secrets or other proprietary rights. No
Seller has given any indemnification to any third party against infringement of
such intellectual property rights.
(v) All of the patents, industrial design registrations,
trademark and service mark registrations, copyright registrations, mask work
registrations and domain name registrations indicated in Schedule 3.1(i)(i) are
valid and in full force, are held of record in the name of a Seller free and
clear of all Liens, other than Permitted Liens, and are not the subject of any
cancellation or reexamination proceeding or any other proceeding challenging
their extent or validity. Except as explicitly indicated in Schedule 3.1(i)(i),
a Seller is the applicant of record in all patent applications, and applications
for trademark, service mark, trade dress, industrial design, and copyright
registration indicated in Schedule 3.1(i)(i), and no opposition, extension of
time to oppose, interference, rejection, or refusal to register has been
received in connection with any such application.
(vi) To the knowledge of Sellers, none of the material
trade secrets, know-how or other confidential or proprietary information of the
Acquired Business has been disclosed to any Person since the acquisition of the
Acquired Business by Sellers in 1993 unless such disclosure was necessary, and
was made pursuant to an appropriate confidentiality agreement.
(j) Material Contracts. Schedule 3.1(j) hereto lists all
contracts and other agreements to which any Seller is a party or is bound and
which relate to or affect the Acquired Business or the Purchased Assets and:
(i) which any party thereto is obligated to make annual
payments aggregating more than $50,000 or where the term of such contract will
not expire of its own accord within twelve (12 ) months of the date hereof;
(ii) which constitutes a consulting or similar agreement
having a term greater than twelve (12) months or which constitutes an employment
agreement or an agreement which calls for severance payments;
(iii) which is not subject to cancellation by Sellers or
the Acquired Business, as the case may be, on not more than thirty (30) days
notice without material penalty;
(iv) which constitutes a purchase or sale contract or
commitment (including supply agreements) which continues for a period of more
than twelve (12) months;
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(v) which constitutes an agreement that restricts the
Acquired Business from carrying out its business anywhere in the world or from
competing with any other Person or which is a confidentiality or non-disclosure
agreement;
(vi) which constitutes an agreement with either the
Sellers or any affiliate thereof;
(vii) which constitutes a franchising, partnership, joint
venture or similar agreement;
(viii) which is a lease, purchase and sale agreement,
subordination, nondisturbance and attornment agreement or other agreement
relating to real property;
(ix) which relates to indebtedness or indemnification or
any guarantee of the Acquired Business (including any letter of credit) or which
grants any encumbrance on any assets, rights or properties of the Acquired
Business, or which is a tax sharing or similar agreement;
(x) which deals with any environmental investigations,
remediations or similar matters;
(xi) which deals with the provision of services by any of
the Acquired Business on a co-packing, contracting or subcontracting basis;
(xii) which is a license or similar agreement for
Intellectual Property, whether as licensee or licensor; and
(xiii) where the consequences of a breach or default
thereunder, or the termination, expiration or cancellation thereof, could
reasonably be expected to result in a Material Adverse Effect.
The foregoing contracts and other agreements are referred to collectively herein
as the "Material Contracts". All Material Contracts are valid and in full force
and effect, and constitute the legal, valid and binding obligations of one of
the Sellers, as applicable. There are no existing defaults by any Seller or, to
the best knowledge of Sellers, by any other party under the Material Contracts
and, to the best knowledge of Sellers, no event, act or omission has occurred
which (with or without notice, lapse of time or the happening or occurrence of
any other event) would result in a default thereunder. No other party to any
Material Contract has asserted the right, and, to the best knowledge of Sellers,
no basis exists for the assertion of any right, to renegotiate the terms or
conditions of any Material Contract. Sellers have delivered to Purchaser true
and complete copies of all Material Contracts listed on Schedule 3.1(j).
(k) Insurance. The Inventory is covered by insurance with
responsible companies against casualty and other losses customarily obtained by
comparable businesses to cover such assets, in amounts, scope and coverage which
are reasonable in light of existing conditions.
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(l) Inventory. Except as a direct and primary result of acts
or omissions of Purchaser, all Inventory is current and saleable or useable in
the ordinary course of business and is of consistent and merchantable quality,
of the grade specified, was produced in accordance with the Acquired Business'
standards, meets the usual standards of the trade and is suitable for use in the
Acquired Business. All Inventory has been valued at lower of cost or market in
accordance with GAAP, and the value of obsolete or below standard quality
materials has been written down in accordance with GAAP. Sellers have and will
convey to Purchaser on the Closing Date good and valid title to the Inventory,
free and clear of any Liens, except for Liens described on Schedule 3.1(d)(i)
hereto (none of which, individually or in the aggregate, affects the
marketability of the Inventory or the use or enjoyment thereof in the ordinary
course of the Acquired Business, consistent with past practice) and except for
Permitted Liens. Except as a direct and primary result of acts or omissions of
Purchaser, none of the Inventory (i) is adulterated, contaminated or misbranded
in any material respect within the meaning of the Federal Food, Drug and
Cosmetic Act, as amended including without limitation, by the Food Additive
Amendment of 1958 (the "Act"), or any other federal, state or local law, rule or
regulation, (ii) constitutes articles prohibited from introduction into
interstate commerce under the provisions of Section 302(d), 404, 405 or 505 of
the Act (iii) contains any hazardous substance or banned substance or (iv)
otherwise fails to comply with the Act, with the California Safe Drinking Water
and Toxic Enforcement Act of 1986, as amended, and all regulations thereunder,
or with any state or local pure food or drug law. Schedule 3.1(l) identifies, as
of January 6, 1999, the locations of all Inventory not in the possession of
Purchaser, and the type and amount of such Inventory at each such location. Not
later than three (3) days prior to the Closing Date, Sellers shall have
delivered to Purchaser a revised Scheduled 3.1(l) reflecting the locations, as
of the Closing Date, of all Inventory not then in the possession of Purchaser,
and the type and amount of Inventory, as of the date of such schedule, at each
such location. None of the Inventory will, as of the Closing, be consigned
inventory and no Seller is under any material liability or obligation with
respect to the return of Inventory.
(m) Absence of Certain Changes. Since December 31, 1997,
Sellers have operated the Acquired Business in the usual and ordinary course,
consistent with prior practice. Since November 30, 1998, there have been no
material adverse changes in the Acquired Business, or the financial condition
thereof, or the revenues, assets or liabilities of the Acquired Business, and
there are no events with respect to the Acquired Business, the Purchased Assets,
or to the assets or property of others leased or used by Sellers in connection
with the Acquired Business (other than facilities owned or leased by Purchaser),
that, to the best knowledge of Sellers, threaten to materially disrupt, prevent
or impair the conduct of the Acquired Business as presently conducted.
(n) Other Information; Purchaser's Investigation. Sellers
acknowledge and agree that the Purchaser's due diligence investigations with
respect to the Acquired Business shall not affect, qualify or modify in any
respect any of the representations and warranties of Sellers under this
Agreement.
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3.2. Representations and Warranties of Purchaser.
-------------------------------------------
Purchaser represents and warrants to Sellers as follows, and
acknowledges and confirms that Sellers are relying upon such representations and
warranties in connection with the execution, delivery and performance of this
Agreement, notwithstanding any investigation made by Sellers or on their behalf.
(a) Due Organization Authorization.
(i) Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and is
duly licensed and qualified to transact business as a foreign corporation and is
in good standing in the jurisdictions where it is required to qualify in order
to conduct its business as presently conducted.
(ii) Purchaser has the requisite power to enter into,
execute and deliver, and perform its obligations under this Agreement and the
Ancillary Documents. The execution, delivery and performance by Purchaser of
this Agreement and the Ancillary Documents to which it is a party, and the
consummation by Purchaser of the transactions contemplated hereby and thereby,
have been duly authorized by all requisite corporate action. This Agreement and
the Ancillary Documents to which Purchaser is a party have been duly and validly
executed and delivered by Purchaser and constitutes the valid and binding
obligation of Purchaser, enforceable against the Purchaser in accordance with
their respective terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium or other similar laws affecting or
relating to creditors' rights generally.
(b) Consents, Authorizations and Binding Effect. Purchaser
may execute, deliver and perform this Agreement and the Ancillary Documents
without the necessity of Purchaser obtaining any consent, approval,
authorization or waiver or giving any notice, except for such consents,
approvals, authorizations or waivers described on Schedule 3.2(b) or which have
been obtained and are unconditional and in full force and effect and such
notices which have been duly given. The execution, delivery and performance of
this Agreement and the Ancillary Documents will not:
(i) constitute a violation of the Certificate of
Incorporation or the By-laws of Purchaser;
(ii) conflict with, result in the breach of, or
constitute a default under, any restriction or other instrument to which
Purchaser is a party or by which Purchaser may be bound or affected; or
(iii) to the best knowledge of Purchaser, constitute a
violation of any statute, judgment, order, decree, regulation or rule of any
court, governmental authority or arbitrator applicable or relating to the
Purchaser.
(c) Parties to Seller Contracts. Purchaser is the successor
by merger to Roseland Manufacturing, Inc. and Bloch & Guggenheimer, Inc. ("Bloch
& Guggenheimer") is the successor by merger to DSD, Inc. Each of Purchaser and
Bloch &
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Guggenheimer is an indirect, wholly owned subsidiary of B&G Foods, Inc. ("B&G"),
and is controlled by B&G.
(d) Financing. Purchaser's indirect parent, B&G, is party to
a senior credit facility (the "Credit Facility") with a group of lending
institutions and Heller Financial, Inc., as agent (together with such lending
institutions, the "Lenders"), under which Purchaser contemplates receiving,
through B&G, the debt financing necessary for consummation of the transactions
contemplated by this Agreement (the "Financing"). As of the date of this
Agreement, there is sufficient borrowing capacity under the Credit Facility to
pay the Base Purchase Price. As of the date of this Agreement, other than as set
forth in the preceding sentence, Purchaser is not aware of any facts or
circumstances that form a reasonable basis for Purchaser to believe that B&G
will not be able to obtain the funds sufficient to consummate the transactions
contemplated by this Agreement under the Credit Facility.
4. Closing.
-------
The closing for the consummation of the transactions contemplated by
this Agreement (the "Closing") shall take place at the offices of Dechert Price
& Rhoads, 30 Rockefeller Plaza, New York, New York, or such other place as the
parties agree in writing, on the third business day following the satisfaction
of each party's obligations to effect the Closing set forth in Section 5 (or,
with respect to any condition not satisfied, waived by the party for whose
benefit the condition exists), or on such other date as the parties may agree in
writing (the "Closing Date"). For all calculations required hereunder, the
Closing shall be effective as of 12:01 a.m. on the Closing Date.
5. Conditions to Closing; Closing Deliveries.
-----------------------------------------
5.1. Conditions Precedent to Obligations of Purchaser.
------------------------------------------------
The obligations of Purchaser to proceed with the Closing
under this Agreement are subject to the fulfillment prior to or at Closing of
the following conditions (any one or more of which may be waived in whole or in
part by Purchaser at Purchaser's option):
(a) Bringdown of Representations and Warranties. The
representations and warranties of Sellers contained in this Agreement that are
not qualified by materiality shall be true and correct in all material respects,
and the representations and warranties of Sellers set forth in this Agreement
that are qualified by materiality shall be true and correct on and as of the
time of Closing, with the same force and effect as though such representations
and warranties had been made on, as of and with reference to such time, and
Purchaser shall have received certificates to such effect signed by the
authorized officers of each Seller.
(b) Performance and Compliance. Sellers shall have performed
all of the covenants and complied with all of the provisions required by this
Agreement to be performed or complied with by them on or before the Closing and
Purchaser shall have received certificates to such effect signed by the
authorized officers of each Seller.
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(c) Transfer of Assets. All deeds, bills of sale,
endorsements, assignments and other good and sufficient instruments of transfer
and conveyance, and documents of further assurance (collectively, "Instruments
of Assignment"), as shall be effective to vest in Purchaser, and evidence the
vesting in Purchaser of, (i) valid and enforceable rights under the Contracts
and Intellectual Property, and (ii) good and marketable title to the Purchased
Assets as provided for, and subject to the limitations and exceptions set forth,
in this Agreement, shall have been filed, executed and delivered to Purchaser.
Without limiting the generality of the foregoing, Sellers shall have executed
and delivered to Purchaser a bill of sale and assignment, dated the Closing
Date, substantially in the form of Exhibit A hereto and an assignment of
Intellectual Property in the form of Exhibit B hereto.
(d) Consents. Sellers shall have delivered evidence that all
consents, authorizations and other approvals described in item 1 of Schedule
3.1(b) hereto have been obtained and all waiting periods specified by law the
passing of which is necessary for the consummation of such transactions
(including without limitation the waiting period under the HSR Act) shall have
passed or been terminated.
(e) Litigation. No order of any court or administrative
agency shall be in effect which restrains or prohibits the transactions
contemplated hereby or which would materially limit or materially adversely
affect Purchaser's ownership or control of the Acquired Business, and there
shall not have been threatened, nor shall there be pending, any action or
proceeding by or before any court or governmental agency or other regulatory or
administrative agency or commission, (i) seeking to prevent any of the
transactions contemplated by this Agreement or (ii) which would have a Material
Adverse Effect.
(f) Financing. Purchaser shall have completed its
arrangements for the Financing in accordance with the terms of the Credit
Facility and received the proceeds thereof.
(g) Transition Services Agreement. Sellers shall have
executed and delivered to Purchaser the Transition Services Agreement (as
hereinafter defined).
(h) Termination of Seller Contracts. The Seller Contracts
shall have been terminated in accordance with Section 7.5 hereof.
5.2. Conditions Precedent to the Obligations of Sellers.
--------------------------------------------------
The obligations of Sellers to proceed with the Closing hereunder
are subject to the fulfillment prior to or at Closing of the following
conditions (any one or more of which may be waived in whole or in part by
Sellers at Sellers' option):
(a) Bringdown of Representations and Warranties. The
representations and warranties of Purchaser contained in this Agreement that are
not qualified by materiality shall be true and correct in all material respects,
and the representations and warranties of Purchaser set forth in this Agreement
that are qualified by materiality shall be true and correct on and as of the
time of Closing, with the same force and effect as though such representations
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and warranties had been made on, as of and with reference to such time, and
Sellers shall have received a certificate to such effect signed by an authorized
officer of Purchaser.
(b) Performance and Compliance. Purchaser shall have
performed all of the covenants and complied with all the provisions required by
this Agreement to be performed or complied with by it on or before the Closing
and Sellers shall have received a certificate to such effect signed by an
authorized officer of Purchaser.
(c) Assumption of Liabilities and Seller Contracts. Purchaser
shall have executed and delivered to Sellers an instrument or instruments
consistent with the terms hereof evidencing Purchaser's assumption of the
Assumed Liabilities (the "Instruments of Assumption"), substantially in the form
of Exhibit C hereto.
(d) Consents. Purchaser shall have delivered evidence that
all consents, authorizations and other approvals described in Item 1 of Schedule
3.2(b) hereto have been obtained and all waiting periods specified by law the
passing of which is necessary for the consummation of such transactions
(including without limitation the waiting period under the HSR Act) shall have
passed or been terminated.
(e) Litigation. No order of any court or administrative
agency shall be in effect which restrains or prohibits the transactions
contemplated hereby and there shall not have been threatened, nor shall there be
pending, any action or proceeding by or before any court or governmental agency
or other regulatory or administrative agency or commission, seeking to prevent
any of the transactions contemplated by this Agreement.
(f) Co-Pack Agreement. Purchaser shall have executed and
delivered to Sellers the Co-Pack Agreement.
(g) Termination of Seller Contracts. The Seller Contracts
shall have been terminated in accordance with Section 7.5 hereof.
6. Termination.
-----------
Anything contained herein to the contrary notwithstanding, this
Agreement may be terminated and the transactions contemplated hereby abandoned
at any time prior to the Closing Date:
(a) by the mutual written consent of Sellers and Purchaser;
(b) by Sellers if any of the conditions set forth in Section
5.2 shall have become incapable of fulfillment and shall not have been waived by
Sellers;
(c) by Purchaser if any of the conditions set forth in
Section 5.1 shall have become incapable of fulfillment and shall not have been
waived by Purchaser;
(d) by either Sellers or Purchaser if there shall be any law
or regulation that makes consummation of the transactions contemplated hereby
illegal or otherwise
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<PAGE>
prohibited or if consummation of the transactions contemplated hereby would
violate any nonappealable final order, decree or judgment of any court or
governmental body having competent jurisdiction; or
(e) by Sellers or Purchaser if the Closing Date does not
occur on or prior to February 28, 1999;
provided, however, that the party seeking termination pursuant to
clause (b) or (c) above is not in material breach of any of its representations,
warranties, covenants or agreements contained in this Agreement; and provided
further, however, regarding termination pursuant to clause (e) above, if the
Closing shall not have occurred on or before the date specified in such clause
due to the willful act or omission of any Seller on the one hand, or Purchaser
on the other hand, as the case may be, such party may not terminate this
Agreement.
6.2. In the event of termination by Sellers or Purchaser pursuant
to this Section 6, written notice thereof shall forthwith be given to the other
party and this Agreement and the transactions contemplated hereby shall be
terminated, and no party hereto shall have any liability to the other except for
any breach of this Agreement occurring prior to the proper termination of this
Agreement.
7. Certain Covenants.
-----------------
7.1. Conduct of Acquired Business. Each Seller covenants and agrees
that it shall conduct the Acquired Business in the ordinary course during the
period from the date hereof until the Closing Date, except as expressly provided
hereby to consummate the transactions contemplated hereby or as otherwise agreed
to in writing by Purchaser. Without limiting the generality of the foregoing,
Sellers shall: (i) continue to operate the Acquired Business with respect to the
purchase of raw materials and supplies, the payment and satisfaction of payables
and the creation and sale of inventory, consistent with prior practice; (ii) use
commercially reasonable efforts to preserve present business relationships with
customers and suppliers; (iii) maintain the Purchased Assets that are tangible
assets consistent with prior practice, and notify Purchaser of any loss of,
damage to or destruction of any material Purchased Asset; and (iv) continue
historical practices with respect to the maintenance and protection of the
Intellectual Property.
7.2. Access. Prior to the Closing, Sellers shall grant to Purchaser
and its representatives, employees, counsel and accountants reasonable access,
during normal business hours and upon reasonable notice, to the personnel,
properties, books and records of the Acquired Business, and shall furnish, or
cause to be furnished, to Purchaser any financial and operating data and other
information with respect to the Acquired Business as Purchaser from time to time
reasonably shall request.
7.3. Transition Services. From and after the Closing Date, Sellers
will provide such transition services, at Sellers' direct variable cost
(excluding overhead) for such services, and for such periods and on such other
terms as shall be set forth in the transition
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services agreement in the form attached hereto as Exhibit D (the "Transition
Services Agreement").
7.4. Co-Pack Agreement. At Closing, Purchaser and IHF or an
affiliate of IHF will enter into a co-pack agreement providing for the
co-packing by Purchaser for IHF or such affiliate of certain garlic spice
products with the terms and conditions substantially in the form attached hereto
as Exhibit E (the "Co-Pack Agreement")
7.5. Termination of Seller Contracts. At the time of Closing, IHF
shall, or shall cause its affiliates to, and Purchaser shall, or shall cause B&G
or its affiliates to, enter into agreements terminating each of the Seller
Contracts at the time of Closing, provided that such termination of the Seller
Contracts shall not terminate (i) the parties' obligations and rights with
respect to performance made thereunder through the time of Closing, including
(without limitation) the rights and obligations with respect to the receipt or
payment of money, (ii) the survival of representations and warranties and the
indemnification rights with respect thereto, (iii) any obligations of the
parties to be performed following termination of the Seller Contracts or (iv)
any provisions relating to choice of law, service of process or jurisdiction.
7.6. Hart-Scott-Rodino Antitrust Improvement. Promptly after the
date hereof, Purchaser and the Sellers will file the required notifications with
the Federal Trade Commission ("FTC") and the Antitrust Division of the
Department of Justice ("Department") pursuant to and in compliance with the
Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "HSR Act"). The
parties hereto shall not intentionally or negligently delay submission of
information requested by FTC and Department under the HSR Act and shall use
their respective best efforts promptly to supply, or cause to be supplied, such
information and shall use their best efforts to obtain early termination of the
applicable waiting period. Purchaser and Sellers shall share equally the filing
fees required under the HSR Act.
7.7. Consents. Each party shall use its commercially reasonable
efforts to obtain prior to the Closing any consents required to consummate the
transactions contemplated by this Agreement and the Transition Services
Agreement (excluding HSR Act compliance), and each party will cooperate in any
reasonable manner in order to enable the other party to obtain such consents;
provided, however, that such cooperation of Purchaser and Sellers hereunder
shall not include any requirement of Purchaser or Sellers to expend money,
commence any litigation or offer or grant any accommodation (financial or
otherwise) to any third party.
7.8. Exclusivity. Each Seller agrees to immediately terminate, and
to cause their respective affiliates, representatives, agents, officers,
employees, lawyers and accountants to terminate, all negotiations and
communications with or on behalf of other parties concerning a possible sale of
the Acquired Business or the Purchased Assets and, after the date of execution
of this Agreement up to and including the Closing Date, agrees not to, and cause
its affiliates, representatives, agents, officers, employees, lawyers and
accountants not to, directly or indirectly, solicit, communicate, negotiate or
enter into other discussions with, or on behalf of, any parties relating to the
sale of all or any part of the Acquired Business or the Purchased Assets except
Purchaser, and further agrees without limitation of the foregoing, not to
provide this Agreement or any financial or operating information to any other
party. Purchaser shall be
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entitled to pursue any and all remedies to which it may be entitled at law or in
equity for violations of this Section 7.6. Sellers agree that Purchaser will
suffer irreparable damage in the event that any of the provisions of this
Section 7.6 are not performed in accordance with its terms or otherwise is
breached. It is accordingly agreed that Purchaser shall be entitled to the
remedy of specific performance of the terms of this Section 7.6 and injunctive
relief preventing any breach of the terms of this Section 7.6 by Sellers, this
being in addition to any other remedy to which Purchaser may be entitled at law
or in equity.
7.9. Change of Name. Within three days following the Closing Date,
Sellers shall file an amendment to the certificate of incorporation of MPI
changing its corporate name to one other than "M. Polaner, Inc." and reasonably
satisfactory to Purchaser.
7.10. Financing. Purchaser shall cause B&G to use its commercially
reasonable efforts to obtain the debt financing contemplated by Section 3.2(d)
in accordance with the terms of the Credit Facility and to contribute the
proceeds therefrom to Purchaser.
7.11. Certain Agreements Regarding Inventory.
(a) The parties hereto agree that at Closing Sellers shall
have sold and Purchaser shall have purchased under Section 1 hereof Inventory
with a value of $7,200,000. As soon as practicable but in no event later than 30
days following the Closing Date, Purchaser shall deliver to Sellers a statement
(the "Closing Inventory Statement") stating the amount of raw materials (the
"Closing Date Raw Materials Amount") and finished goods inventory included in
Inventory on the close of business as of the Closing Date (the "Closing
Inventory Amount"), which statement shall be prepared as described herein. The
Closing Inventory Statement shall present fairly the Closing Inventory Amount
and shall be prepared in conformity and in a manner consistent with the
Financial Statements; provided that the parties agree that raw materials
included in the Closing Inventory Amount shall be valued at actual cost and
finished goods included in the Closing Inventory Amount shall be valued at
standard cost as historically billed by Purchaser or its affiliate to Sellers.
Sellers and/or its designated independent accounting firm shall have the right
to be present to observe, participate in and verify the taking of any physical
inventory in conjunction with the preparation of the Closing Inventory Statement
and shall have access to, and at any time during which the parties are
determining the final amount of raw materials included in Inventory in
accordance with this Section 2.2, may review and examine the procedures, books,
records and work papers of Purchaser and its accountants.
(b) Unless Sellers, within 15 days after receipt of the
Closing Inventory Statement, notify Purchaser that it objects to the computation
of said amount, specifying in reasonable detail the basis for such objection and
its alternative computation of said amount, the Closing Inventory Amount shall
be binding upon the parties. If Purchaser and Sellers are unable to agree upon
the Closing Inventory Amount within 5 days after any such notification has been
given by Sellers or within a mutually agreed-to extended time period, the
controversy shall be referred to a firm of nationally recognized certified
public accountants (the "Neutral Auditors") selected by Purchaser and Sellers
within 10 days of the expiration of the resolution period. If Purchaser and
Sellers are unable to agree on the selection of the Neutral Auditors, a "big
five" accounting firm will be selected by lot after eliminating one such firm
selected by
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Purchaser and one such firm selected by Sellers and any other firm that is or
ever has been the primary auditing firm of either Sellers or Purchaser. In
determining the Closing Inventory Amount, the Neutral Auditors shall consider
only those items or amounts in the Closing Inventory Statement as to which
Sellers have disagreed. Such determination shall be binding upon the parties,
absent manifest error, provided that the Closing Inventory Amount shall not be
more than the amount thereof shown in the Closing Inventory Statement delivered
by Purchaser pursuant to Section 2.2(a) nor less than the amount thereof shown
in Sellers' calculation delivered pursuant to Section 2.2(b). The parties shall
share equally in the fees and expenses of the Neutral Auditors. Notwithstanding
anything in this Agreement to the contrary, the final, binding or conclusive
nature of the calculation of the Closing Inventory Amount shall not abrogate or
in any way limit the ability of the Purchaser to seek indemnification from
Sellers for the breach of any covenant, representation or warranty hereunder.
(c) (i) Notwithstanding Section 1.1(a)(iv), in the event that
the Closing Inventory Amount (as finally determined in accordance with the
preceding clause (b)) exceeds $7,200,000, Sellers shall retain an amount of raw
materials inventory included in the Closing Date Raw Materials Amount equal to
such excess. From the Closing Date until the three month anniversary of the
Closing Date, Purchaser shall purchase from Sellers and Sellers shall sell to
Purchaser (without representation or warranty, either express or implied), such
amount of Purchaser's raw materials inventory requirements as Purchaser shall
request, at the actual cost valuation for such raw materials inventory reflected
in the Closing Date Raw Materials Amount. At the three month anniversary of the
Closing Date, Purchaser shall purchase any and all remaining raw materials
inventory held by Sellers pursuant to this subparagraph (c)(i) at the actual
cost valuation for such raw materials inventory reflected in the Closing Date
Raw Materials Amount.
(ii) In the event that the Closing Inventory Amount (as
finally determined in accordance with the preceding clause (b)) is less than
$7,200,000, then Sellers shall pay to Purchaser the amount of such deficit by
wire transfer of immediately available funds within 10 days after such final
determination of the Closing Inventory Amount.
8. Indemnification and Certain Post-Closing Matters.
------------------------------------------------
8.1. Indemnification Generally.
-------------------------
(a) Sellers, jointly and severally, shall indemnify Purchaser
and its directors, officers, employees, stockholders, affiliates and agents (the
"Purchaser Indemnified Parties ") against, and hold each Purchaser Indemnified
Party harmless from, any and all loss, claim, damage or liability, and all costs
and expenses (including without limitation legal fees and costs) (collectively,
"Losses"), incurred by any Purchaser Indemnified Party, resulting from or
arising out of:
(i) any breach of the representations and warranties made
by any Seller in this Agreement, the Ancillary Documents or in any certificate
or other instrument furnished or to be furnished to Purchaser hereunder;
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(ii) the non-fulfillment of any agreement or covenant made
by any Seller in or pursuant to this Agreement;
(iii) any Excluded Liability or any other claims,
obligations, debts, demands, or liabilities of any kind (known or unknown,
disclosed or undisclosed, contingent or otherwise) existing against any Seller
on or prior to the Closing Date, whether asserted prior to or subsequent to the
Closing Date, and asserted against Purchaser, other than the Assumed
Liabilities; and
(iv) the enforcement by any Purchaser Indemnified Party of
its rights under this Agreement.
(b) Purchaser shall indemnify Sellers and their directors,
officers, employees, stockholders, affiliates and agents (the "Seller
Indemnified Parties") against, and hold each Seller Indemnified Party harmless
from, any and all Losses incurred by any Seller Indemnified Party, resulting
from or arising out of:
(i) any breach of the representations and warranties made
by Purchaser in this Agreement, the Ancillary Documents or in any certificate or
other instrument furnished or to be furnished to Seller hereunder;
(ii) the non-fulfillment of any agreement or covenant made
by Purchaser in or pursuant to this Agreement;
(iii) any claims, obligations, debts, demands, or
liabilities asserted against Sellers by reason of the breach, failure to
perform, refusal or manner of performance by Purchaser of the Assumed
Liabilities; and
(iv) the enforcement by any Seller Indemnified Party of
its rights under this Agreement.
(c) Upon obtaining knowledge thereof, Purchaser, on the one
hand, or Sellers, on the other, as the case may be (the "Indemnified Party"),
shall promptly notify the other, as the case may be (the "Indemnifying Party"),
in writing of any damage, claim, loss, liability or expense (an "Asserted
Liability") which the Indemnified Party has determined has given or could give
rise to a claim in which indemnification rights are granted hereunder (such
written notice shall be referred to as the "Claims Notice"). The Claims Notice
shall specify, in all reasonable detail, the nature and estimated amount of any
such claim giving rise to a right of indemnification. The rights of any
Indemnified Party to be indemnified hereunder shall not be adversely affected by
its failure to give, or its failure to timely give, a Claims Notice with respect
thereto unless, and if so, only to the extent that, the Indemnifying Party is
materially prejudiced thereby.
(d) The Indemnifying Party may elect to compromise or defend,
at its own expense and by its own counsel, any Asserted Liability arising out of
a third party claim if (i) the claim involves (and continues to involve) solely
monetary damages and the Indemnifying
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Party's assumption of the defense or settlement of such claim will not have a
material adverse effect on the Indemnified Party's business, (ii) the
Indemnifying Party expressly agrees in writing to the Indemnified Party that, as
between the two, the Indemnifying Party is solely obligated to satisfy and
discharge the claim, and (iii) the Indemnifying Party makes reasonably adequate
provision to satisfy the Indemnified Party of the Indemnifying Party's ability
to satisfy and discharge the claim (the foregoing collectively, the "Litigation
Conditions"); provided, however, that if the parties in any action shall include
both an Indemnifying Party and an Indemnified Party, and the Indemnified Party
shall have reasonably concluded that counsel selected by the Indemnifying Party
has a conflict of interest because of the availability of different or
additional defenses to the Indemnified Party, the Indemnified Party shall have
the right to select separate counsel to participate in the defense of such
action on its behalf, at the expense of the Indemnifying Party; and provided
further, however, that the Indemnifying Party shall forfeit the right to control
the defense or settlement of any such claim if, at any time after assuming the
defense or settlement thereof, the Indemnifying Party no longer satisfies the
Litigation Conditions. Subject to the foregoing, if the Indemnifying Party
elects to compromise or defend such Asserted Liability, it shall within thirty
(30) days (or sooner, if the nature of the Asserted Liability so requires)
notify the Indemnified Party of its intent to do so, and the Indemnified Party
shall cooperate, at the expense of the Indemnifying Party, in the compromise of,
or defense against, such Asserted Liability. The Indemnifying Party shall obtain
the prior written approval of the Indemnified Party (which approval shall not be
unreasonably withheld) before entering into or making any settlement,
compromise, admission, or acknowledgment of the validity of any Asserted
Liability if, pursuant to or as a result of such settlement, compromise,
admission or acknowledgment, injunctive or other equitable relief would be
imposed against the Indemnified Party. No Indemnifying Party shall consent to
the entry of any judgment or enter into any settlement that does not include as
an unconditional term thereof the giving by each claimant or plaintiff to each
Indemnified Party of a release from all liability in respect of such Asserted
Liability. If the Indemnifying Party elects not to compromise or defend the
Asserted Liability, fails to notify the Indemnified Party of its election as
herein provided, or fails to satisfy the Litigation Conditions, the Indemnified
Party may pay, compromise or defend such Asserted Liability, subject to
indemnification by the Indemnifying Party hereunder; provided, however, that the
Indemnified Party shall make no settlement, compromise, admission, or
acknowledgment that would give rise to liability on the part of any Indemnifying
Party without the prior written consent (which consent shall not be withheld
unreasonably) of such Indemnifying Party. The Indemnified Party and the
Indemnifying Party may participate, at their own expense, in the defense of an
Asserted Liability if the other party is entitled and elects to defend such
Asserted Liability. If the Indemnifying Party is entitled and elects to defend
any claim, the Indemnified Party shall, subject to receipt of a reasonable
confidentiality agreement, make available to the Indemnifying Party any books,
records or other documents within its control, and the reasonable assistance of
its employees, for which the Indemnifying Party shall be obliged to reimburse
the Indemnified Party the reasonable out-of-pocket expenses of making them
available.
8.2. Limitations of Damages
----------------------
(a) Neither Purchaser, on the one hand, nor Sellers, on the
other hand, shall be liable to the other under this Article 8 for any Losses due
pursuant to Section 8.1(a)(i) or Section 8.1(b)(i) unless and until the amount
of such Losses theretofore incurred by
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such party exceeds $500,000. Neither Sellers' nor Purchaser's aggregate
liability for such Losses due pursuant to Section 8.1(a)(i) or 8.1(b)(i) shall
in any event exceed $15,000,000.
(b) The limitations on the indemnification obligations set
forth in this Section 8.2 shall not apply to any covenants or agreements of the
parties in this Agreement. In addition, notwithstanding the provisions of
paragraph (a) above, the limitations on the indemnification obligations of the
parties set forth therein shall not apply to breaches of the representations and
warranties made in Sections 3.1(a) and (d) and Section 3.2(a).
(c) Notwithstanding anything to the contrary set forth herein,
no limitation or condition of liability or indemnity applicable to the parties
shall apply to any breach of a representation or warranty if such representation
or warranty was made with actual knowledge by a party that it (i) contained an
untrue statement of a material fact or (ii) omitted to state a material fact
necessary to make the statements contained therein not misleading. Solely for
purposes of calculating the amount of Losses incurred arising out of or relating
to any breach of a representation or warranty (and not for purposes of
determining whether or not a breach has occurred), the references to "Material
Adverse Effect" or other materiality qualifications (or correlative terms),
including as expressed in accounting concepts such as GAAP, shall be
disregarded.
(d) The amount of any Loss for which indemnification is
provided under Section 8 shall be net of any amounts (net of the costs of
recovery of such amounts) recovered by the Indemnified Party under insurance
policies with respect to such Loss.
(e) Other than in respect of Sellers' representation and
warranty set forth in Section 3.1(c), no party shall be liable for any punitive
or consequential damages arising out of, based upon or resulting from the
transactions contemplated by this Agreement, or any breach of any representation
or warranty, covenant or agreement of any party contained herein; provided,
however, that the foregoing shall not preclude indemnification in respect of any
third party claims that include claims for punitive or consequential damages
asserted by such third party.
8.3. Exclusive Remedy. The rights of Purchaser under this Section 8
shall be the exclusive remedy of Purchaser with respect to claims based upon a
breach or alleged breach of the representations, warranties and covenants of
Sellers contained in this Agreement. The rights of Sellers under this Section 8
shall be the exclusive remedy of Sellers with respect to claims based upon a
breach or alleged breach of the representations, warranties and covenants of
Purchaser contained in this Agreement. Except as expressly set forth in this
Agreement, neither Sellers nor Purchaser, nor any of their respective
representatives or affiliates makes or has made any representations or
warranties, express or implied, in connection with the transactions contemplated
by this Agreement.
8.4. Allocation of Purchase Price.
----------------------------
Sellers and Purchaser acknowledge and agree that the allocation of
the Purchase Price provided for by Schedule 2.2 hereto, and the following
undertaking with respect
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to tax reporting, have been specifically negotiated by the parties at arms'
length, and are part of the basis of this Agreement. Sellers and Purchaser
covenant and agree that each shall prepare its Federal, state and local income
tax returns employing the allocation of the Purchase Price set forth on Schedule
2.2 and will not take a contrary position with respect to such allocation in any
tax proceeding or audit; provided, however, that nothing contained herein shall
require Sellers or Purchaser to contest any proposed deficiency or adjustment by
any taxing authority or agency, exhaust administrative remedies or litigate
before any court with respect to such allocation of the Purchase Price.
9. Miscellaneous.
-------------
9.1. Certain Definitions. As used in this Agreement,
-------------------
(a) "affiliate" shall mean any Person directly or indirectly
controlling, controlled by or under common control with the Person of which it
is an affiliate;
(b) "Benefit Plans" means all employee pension benefit plans
(as defined in Section 3(2) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA")), welfare benefit plans (as defined in Section 3(1)
of ERISA), bonus, stock purchase, stock ownership, stock option, deferred
compensation, incentive, severance, termination or other compensation plan or
arrangement, and other material employee fringe benefit plans, presently
maintained by, or contributed to by Sellers in connection with the Acquired
Business or for which the Acquired Business could have any liability;
(c) "Environmental Liabilities" means all liabilities and
obligations for pollution, contamination or environmental conditions first
created or occurring out of activities conducted or conditions existing prior to
the Closing Date (i) under laws, rules, regulations, decrees, orders, permits or
authorizations relating to the protection of the environment, human health or
public safety, including any common law action or strict liability
("Environmental Laws"), (ii) relating to violations of Environmental Laws,
except for acts or omissions of Purchaser or its affiliates under any contract
or agreement with the Sellers relating to the Acquired Business, unless such
liability is explicitly retained or assumed by Sellers or the Acquired Business
under such contract or agreement, or (iii) relating to the Purchased Assets or
the Acquired Business, including any such liabilities or obligations at any
off-site locations to or at which Sellers disposed of or arranged for the
disposal of any waste or materials; except in each case other than liabilities
and obligations that are a direct and primary result of acts or omissions of
Purchaser or its affiliates or any condition existing at Purchaser's facility in
Roseland, New Jersey.
(d) "knowledge of Sellers", "to the best knowledge of Sellers"
and phrases of similar import shall mean the actual knowledge of each of the
officers of each Seller, the general counsel of Sellers, the brand manager of
the Polaner brand, Randy Zeno and Louis Pellicano, in each case after due
inquiry of other current employees of Sellers who have responsibility with
respect to the subject matter of such representation or warranty and review of
such books and records of the Acquired Business in Sellers' possession as such
person in good
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faith reasonably believes to be relevant to the statements made in such
representation and warranty.
(e) "Material Adverse Effect" means any change, effect or
circumstance that, individually or when taken together with all other such
changes, effects or circumstances that have occurred prior to the date of
determination of the occurrence of a Material Adverse Effect, has or is
reasonably likely to have, any material adverse effect (i) on the assets,
liabilities, operations, business, competitive position, results of operations
or condition (financial or otherwise) of the Purchased Assets or the Acquired
Business or (ii) on the ability of the Sellers to consummate the transactions
contemplated hereby or (iii) on the ability of Purchaser to continue to operate
the Acquired Business immediately after the Closing in substantially the same
manner as the Acquired Business is conducted prior to the Closing, provided that
any adverse effect resulting from changes that affect the industry of the
Acquired Business generally shall not be considered in determining whether there
has been a Material Adverse Effect;
(f) "Person" shall mean and include an individual, partnership,
joint venture corporation, trust, unincorporated organization, group, government
or governmental entity; and
(g) "Tax or "Taxes" shall mean all federal, state, local or
foreign income, gross receipts, windfall profits, value added, severance,
property, production, sales, use, license, excise, franchise, employment,
withholding or similar taxes, together with any interest, additions or penalties
with respect thereto and any interest in respect of such additions or penalties.
9.2. Consent to Jurisdiction.
-----------------------
Any action, suit or other proceeding initiated by Sellers or
Purchaser under or in connection with this Agreement may be brought in the
federal courts for the Southern District of New York or any state court in New
York County, New York, as the party bringing such action, suit or proceeding
shall elect, having jurisdiction over the subject matter thereof. Purchaser and
Sellers hereby submit themselves to the jurisdiction of any such court.
9.3. Further Actions.
---------------
From time to time, as and when requested by Purchaser, Sellers shall
execute and deliver, or cause to be executed and delivered, all such documents
and instruments and shall take, or cause to be taken, all such further or other
actions as Purchaser reasonably may deem necessary or desirable to carry out the
intent and purposes of this Agreement, to convey, transfer, assign and deliver
on the Closing Date to Purchaser and its successors and assigns, the Purchased
Assets (or to evidence the foregoing) and to consummate the other transactions
contemplated hereby. In addition, and without limiting the generality of the
foregoing, prior to and following the Closing, Sellers shall cooperate
reasonably, and shall cause its officers and employees to cooperate reasonably,
at Purchaser's expense for Seller's out-of-pocket costs, with Purchaser in the
preparation of audited financial statements of the Acquired Business and the
Purchased Assets as of and for the three year period ended with the completion
of Sellers' last full
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fiscal year and for interim periods thereafter, including without limitation by
preparing and making available to Purchaser and its accountants such financial
information with respect to the Acquired Business and the executing
representation letters with respect to such financial information, as Purchaser
reasonably may request.
9.4. No Broker.
---------
Sellers represent and warrant to Purchaser that Sellers have no
obligation or liability to any broker or finder by reason of the transactions
which are the subject of this Agreement. Sellers shall indemnify Purchaser
against, and shall hold Purchaser harmless from, at all times after the date
hereof, any and all liabilities (including without limitation legal fees), and
shall pay any final judgment obtained by any Person claiming brokerage
commissions or finder's fees, or rights to similar compensation, on account of
services purportedly rendered on behalf of IHF or Seller in connection with this
Agreement or the transactions contemplated hereby. Purchaser represents and
warrants to Sellers that Purchaser has no obligation or liability to any broker
or finder by reason of the transactions which are the subject of this Agreement.
Purchaser shall indemnify Sellers against, and shall hold Sellers harmless from,
at all times after the date hereof, any and all liabilities (including without
limitation legal fees), and shall pay any final judgment obtained by any Person
claiming brokerage commissions or finder's fees, or rights to similar
compensation, on account of services purportedly rendered on behalf of Purchaser
in connection with this Agreement or the transactions contemplated hereby.
9.5. Expenses.
--------
Except as otherwise specifically provided in this Agreement,
Purchaser and Sellers shall pay their respective expenses in connection with the
negotiation, execution, delivery and performance of this Agreement.
9.6. Entire Agreement.
----------------
This Agreement, which includes the Schedules and Exhibits hereto and
the other documents, agreements and instruments executed and delivered pursuant
to or in connection with this Agreement, contains the entire agreement among
Purchaser and Sellers with respect to the transactions contemplated by this
Agreement and supersedes all prior arrangements or understandings with respect
thereto.
9.7. Waiver of Compliance with Bulk Sales Law.
----------------------------------------
Purchaser and Sellers hereby waive compliance with the provisions of
any applicable bulk sales law, and Seller hereby agrees to indemnify Purchaser
for failure to comply with any applicable bulk sales law.
9.8. Notices.
-------
All notices or other communications which are required or permitted
hereunder shall be in writing and sufficient if delivered personally or sent by
registered or certified mail, postage prepaid, addressed as follows:
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If to Sellers:
International Home Foods, Inc.
1633 Littleton Road
Parsippany, New Jersey 07054
Attention: General Counsel
With a copy to:
Vinson & Elkins
3700 Trammell Crow Center
2001 Ross Avenue
Dallas, Texas 75201
Attention: Winston Oxley
If to Purchaser:
Roseland Distribution Company
c/o B&G Foods, Inc.
426 Eagle Rock Avenue
Roseland, New Jersey 07068
Attention: President
With a copy to:
Dechert Price & Rhoads
30 Rockefeller Plaza
New York, New York, 10112
Attention: Glyndwr P. Lobo
Any party may by notice change the address to which notice or other
communications to it are to be delivered or mailed.
9.9. Governing Law.
-------------
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York (other than the choice of law principles
thereof).
9.10. Assignability.
-------------
This Agreement shall not be assignable otherwise than by operation
of law by either party without the prior written consent of the other party, and
any purported assignment by any party without the prior written consent of the
other party shall be void, except that Purchaser may assign all or any portion
of its rights hereunder (i) as collateral security to one or more lenders
providing financing in connection with the transactions contemplated hereunder,
provided that such Persons obtain no greater rights against Sellers as are
available to Purchaser under this Agreement, (ii) to any purchaser of
substantially all of the assets of Purchaser, or (iii) to
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an affiliate of Purchaser. No such assignment, however, shall relieve Purchaser
of obligations hereunder, and any such assignee shall take such rights subject
to any defenses, counterclaims and set-offs to which Sellers may be entitled
under this Agreement. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and permitted
assigns.
9.11. Survival of Representations and Warranties.
------------------------------------------
All representations and warranties contained herein or made pursuant
hereto, whether by Sellers or Purchaser, shall survive for a period of eighteen
(18) months following the Closing and the consummation of the transactions
contemplated by this Agreement, except that the representations and warranties
contained in Sections 3.1(a), 3.1(d), and 3.2(a) shall survive the Closing in
perpetuity and the representations in Section 3.1(g) shall survive the Closing
until sixty days after the expiration of any applicable statutes of limitation
(including extensions thereof) and shall thereupon expire together with any
right to indemnification with respect thereto (except to the extent a written
notice asserting a claim for breach of any such representation or warranty shall
have been given prior to such expiration in accordance with this Agreement). The
covenants and obligations contained herein to be performed or complied with
after the Closing shall survive the Closing.
9.12. Waivers and Amendments.
----------------------
Any waiver of any term or condition, or any amendment or
supplementation, of this Agreement shall be effective only if in writing. A
waiver of any breach of any of the terms or conditions of this Agreement shall
not in any way be construed as a waiver of any subsequent breach.
9.13. Third Party Rights.
------------------
Except as otherwise provided in Section 8.1 with respect to the
indemnification obligations of Sellers and Purchaser for the benefit of the
directors, officers, employees, stockholders, affiliates and agents of the
Purchaser and Sellers, as the case may be, this Agreement shall be effective
only as between the parties hereto, their successors and permitted assigns.
9.14. Illegality.
----------
In the event that any one or more of the provisions contained in
this Agreement shall be determined to be invalid, illegal or unenforceable in
any respect for any reason, the validity, legality and enforceability of any
such provision in any other respect and the remaining provisions of this
Agreement shall not, at the election of the party for whom the benefit of the
provision exists, be in any way impaired.
9.15. Taxes.
-----
Except as may be otherwise provided in this Agreement, all Taxes in
respect of the Purchased Assets and income of the Acquired Business for the
periods or portions
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of periods (i) ending prior to the Closing shall be borne by Sellers and (ii)
beginning after the Closing shall be borne by Purchaser.
9.16. Descriptive Headings.
--------------------
The descriptive headings of this Agreement are for convenience only
and shall not control or affect the meaning or construction of any provision of
this Agreement.
[SIGNATURE PAGE IS THE NEXT PAGE]
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<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the date first above written.
ROSELAND DISTRIBUTION COMPANY
By: /s/David Wenner
---------------------------
Name: David Wenner
Title: President
INTERNATIONAL HOME FOODS, INC.
By: /s/James A. Krause
---------------------------
Name: James A. Krause
Title: Vice President
M. POLANER, INC.
By: /s/James A. Krause
---------------------------
Name: James A. Krause
Title: Vice President
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<PAGE>
Schedules
The following schedules have been omitted from this filing of the Asset
Purchase Agreement:
SCHEDULES
- ---------
Schedule 1.1(a)(i) - Equipment
Schedule 1.1(a)(iii) - Seller Contracts
Schedule 2.2 - Allocation of Purchase Price
Schedule 3.1(b) - Consents, Approvals, Waivers, Etc.
Schedule 3.1(c) - Financial Statements
Schedule 3.1(d)(i) - Liens
Schedule 3.1(d)(ii) - Machinery and Equipment
Schedule 3.1(e) - Litigation
Schedule 3.1(f) - Compliance with Laws
Schedule 3.1(h) - Customers and Suppliers
Schedule 3.1(i) - Patents, Trademarks, Etc.
Schedule 3.1(j) - Material Contracts
Schedule 3.1 (k) - Insurance
Schedule 3.1(l) - Inventory
Schedule 3.2(b) - Purchaser's Consents
B&G Foods, Inc. will provide the schedules to the Securities and
Exchange Commission upon request.
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<PAGE>
Exhibit A
FORM OF BILL OF SALE AND ASSIGNMENT
BILL OF SALE AND ASSIGNMENT AGREEMENT, dated January __, 1999 (this
"Bill of Sale and Assignment Agreement"), between Roseland Distribution Company,
a Delaware corporation ("Purchaser"), and International Home Foods, Inc., a
Delaware corporation ("IHF") and M. Polaner Inc., a Delaware corporation and
wholly-owned subsidiary of IHF ("MPI" and together with IHF, the "Sellers").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Purchaser and the Sellers have executed and delivered an Asset
Purchase Agreement dated as of January 12, 1999 (the "Asset Purchase
Agreement"), pursuant to which, among other things, Purchaser will purchase from
the Sellers the business and certain assets of the Sellers relating to or used
or dedicated to use in connection with the Acquired Business.
NOW, THEREFORE, in consideration of the Purchase Price and the
transactions pursuant to the Asset Purchase Agreement, the parties hereto do
take the following action:
A. the Sellers do hereby convey, sell, transfer, assign and deliver
unto Purchaser, and its successors and assigns forever, all of the right, title
and interest of the Sellers in the following properties and assets owned, used
or held for use by the Sellers in connection with the Acquired Business or, to
the extent relating to the Acquired Business, by any affiliates of Sellers
(hereinafter sometimes collectively referred to as the "Purchased Assets"):
(1) all tangible personal property used or held for use exclusively
in connection with the Acquired Business, including without
limitation all machinery, equipment, parts, tooling, vehicles,
furniture, leasehold improvements, fixtures, office equipment,
supplies and other items of tangible Personal property owned by
the Sellers and used or held for use exclusively in connection
with the Acquired Business, including without limitation all
such personal property located in, at or on the Purchaser's
facilities located in Roseland, New Jersey, and all of the
Sellers' rights and benefits under any leases and with respect
to any of the foregoing items, all of the material foregoing
items having been described on Schedule 1.1(a)(i) of the Asset
Purchase Agreement, which has been attached hereto as Annex A;
(2) all intangible assets, including without limitation the brand
names, trademarks, copyrights and registrations and applications
for registrations thereof listed on Schedule 1.1(a)(ii) of the
Asset Purchase Agreement (which has been attached hereto as
Annex B) and all associated goodwill
<PAGE>
and any and all patents, copyrights, trade names, trade secrets,
service marks, customer lists, relationships and arrangements
with suppliers (including without limitation suppliers of raw
materials), customers, authors and designers, sales literature,
inventions, formulae, technology, UPC codes, processes and
computer software, used or held for use exclusively in
connection with the Acquired Business and all licenses,
agreements, applications and registrations with respect to any
of the foregoing, together with any goodwill associated
therewith;
(3) all rights and benefits of Sellers under all contracts, leases,
agreements, licenses, commitments (collectively, "Contracts")
(i) described on Schedule 3.1(j) of the Asset Purchase Agreement
(which has been attached hereto as Annex C) or (ii) that (A)
relate exclusively to the Acquired Business, (B) under the terms
of the Asset Purchase Agreement are not required to be disclosed
pursuant to Section 3.1(j) thereof, and (C) have been entered
into in the ordinary course of the Acquired Business and are
consistent in nature and scope with past practices of the
Acquired Business (collectively, the "Assumed Contracts"),
provided, however, that the Assumed Contracts shall not include
the Contracts identified on Schedule 1.1(a)(iii) of the Asset
Purchase Agreement (which has been attached hereto as Annex D);
(4) except as provided in Section 7.11 of the Asset Purchase
Agreement, all inventory held for resale and all raw materials,
work in process, finished products, shipments in transit,
wrapping, supply and packaging items related exclusively to the
Acquired Business;
(5) all licenses, authorizations, permits and other approvals issued
by any governmental agency, public or self-regulatory authority,
and all applications therefor pending, used or held for use
exclusively in connection with the Acquired Business;
(6) all blueprints, designs, drawings, patterns, specifications,
work plans and scheduling procedures, exclusively related to, or
exclusively required or used in connection with, the production
of products and products in development of the Acquired
Business;
(7) all books, records, files and correspondence (whether in
original or photostatic form) to the extent used or held for use
in connection with, or relating to the Acquired Business,
including lists of past customers and suppliers;
(8) all goodwill associated with or attributable to the Acquired
Business; and
(9) any other tangible asset owned by Sellers and used or held for
use exclusively in connection with the Acquired Business which
is necessary
2
<PAGE>
to operate the Acquired Business as presently conducted (other
than the Excluded Assets).
B. To the extent any asset of the type set forth in Section A, other
than any Excluded Assets, related exclusively to the Acquired Business is owned,
used or held for use by any affiliate of the Sellers, such asset is included
with the term "Purchased Assets" and are conveyed by Sellers herewith.
C. Notwithstanding the provisions of Section A, the Purchased Assets
shall not include any right, title or interest of the Sellers or their
affiliates in, to or under any of the following Excluded Assets:
(1) cash, including bank balances and bank accounts, cash
equivalents and similar type items on hand on the date hereof;
(2) all accounts and notes receivable (including without limitation
any claims, remedies, and other rights related thereto) entered
into prior to the date hereof and relating to the Acquired
Business;
(3) the Tax returns of Sellers;
(4) all refunds of Taxes to the extent that Taxes being refunded
were an Excluded Liability;
(5) the articles or certificate of incorporation and by-laws of
Sellers and the corporate minutes, corporate seals and stock
books of Sellers;
(6) all refunds, deposits, prepayments or prepaid expenses
(including any prepaid insurance premiums);
(7) all rights to insurance or indemnity, and all claims, causes of
action, rights of recovery or set-off of any kind and against
any person, relating to or covering the Acquired Business before
the date hereof or related to the Excluded Assets; and
(8) any franchise tax or sales and use permits of Sellers.
D. This Bill of Sale and Assignment Agreement is subject to the terms
and provisions of the Asset Purchase Agreement, including without limitation the
provisions of Section 6.1. However, nothing contained herein shall be deemed to
enlarge, amend or alter the terms and provisions of the Asset Purchase
Agreement.
E. Capitalized terms used but not defined in this Bill of Sale and
Assignment Agreement shall have the respective meanings assigned to them in the
Asset Purchase Agreement.
3
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Bill of Sale and
Assignment Agreement as of the date first above written.
ROSELAND DISTRIBUTION COMPANY
By:
---------------------------
Name:
Title:
INTERNATIONAL HOME FOODS, INC.
By:
---------------------------
Name:
Title:
M. POLANER, INC.
By:
---------------------------
Name:
Title:
4
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT OF TRADEMARKS
STATE OF :
: ss.
COUNTY OF :
WHEREAS M. POLANER, INC. ("Assignor"), a Delaware corporation with
offices at 1633 Littleton Road, Parsippany, New Jersey 07054, U.S.A., has
adopted, used and is using the trademarks shown in Schedule A hereto in its
business;
AND WHEREAS ROSELAND DISTRIBUTION COMPANY ("Assignee"), a Delaware
corporation with offices at c/o B&G Foods, Inc., 426 Eagle Rock Avenue,
Roseland, New Jersey 07068, U.S.A., has on this date acquired from Assignor
certain assets and property used in Assignor's business and is desirous of
acquiring the trademarks shown in Schedule A hereto and any other trademarks,
service marks, trade dress and trade names used in such business (collectively,
the "Trademarks"), the registrations and applications for registration of the
Trademarks shown in Schedule A and any other registrations and applications for
registration of the Trademarks, and the goodwill of the business symbolized by
the Trademarks.
NOW THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, and intending to be legally bound, Assignor hereby sells,
assigns and transfers to Assignee all right, title and interest in and to the
Trademarks, together with the registrations and applications for registration of
the Trademarks shown in Schedule A, any other registrations and applications for
registration of the Trademarks, in and to all income, royalties, damages and
payments now or hereafter due or payable with respect thereto and in and to all
rights of action arising from the Trademarks, all claims for damages by reason
of past, present and future infringement of the Trademarks and the right to sue
and collect damages for such infringement, to be held and enjoyed by Assignee
for its own use and benefit and for its successors and assigns as the same would
have been held by Assignor had this assignment not been made, and the goodwill
of the business symbolized by the Trademarks.
Dated: , 1999
M. POLANER, INC.
By
---------------------------
Name:
Title:
Subscribed and sworn to
before me on
1999.
- -----------------------
Notary Public
<PAGE>
EXHIBIT B
SCHEDULE A
U.S. Trademarks
Mark Registration No. Registration Date
- ---- ---------------- -----------------
POLANER 596,870 October 12, 1954
JAM LOVER'S & Design 987,993 July 9, 1974
WHITE CAP 1,123,759 August 7, 1979
POLANER LITE (stylized) 1,124,752 September 4, 1979
MAX AMS 1,497,875 July 26, 1988
POLANER FANCY FRUIT 1,545,485 June 27, 1989
ALL FRUIT 1,832,827 April 26, 1994
POLANER 1,650,259 July 9, 1991
DON'T DARE CALL IT JELLY!
& Design 1,751,430 February 9, 1993
POLANER 1,961,765 March 12, 1996
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT OF COPYRIGHT
-------------------------------
STATE OF :
: ss.
COUNTY OF :
WHEREAS, M. POLANER, INC., a Delaware corporation with offices at 1633
Littleton Road, Parsippany, New Jersey 07054, U.S.A., owns the copyrights or an
interest in the copyrights in certain works of authorship (all works in which
Assignor owns the copyright or any interest in the copyright, whether such works
are registered or unregistered, identified or unidentified, known or unknown,
are hereafter collectively referred to as the "Works");
WHEREAS, Assignor is the sole owner of all copyrights, copyright
registrations, and registration certificates in and for all those Works that
have been registered with the United States Copyright Office, and all such Works
and copyright registrations that are known to Assignor are identified on the
attached Schedule "A";
WHEREAS, ROSELAND DISTRIBUTION COMPANY, a Delaware corporation with
offices at c/o B&G Foods, Inc., 426 Eagle Rock Avenue, Roseland, New Jersey
07068, U.S.A. ("Assignee"), wishes to acquire all copyrights, registrations of
copyrights, certificates of registration of copyrights, applications to register
copyrights, and causes of action relating to copyrights in the Works, including
but not limited to those Works identified on Schedule "A", and Assignor wishes
to transfer the same to Assignee;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
Assignor hereby transfers and assigns forever to Assignee, all right, title, and
interest in and to (1) all the Works, (2) all worldwide copyrights in the Works,
including all extensions and renewals thereof, (3) all registrations of
copyrights in the Works, (4) all certificates of copyright registration for the
Works, (5) all applications to register copyrights in the Works, and (6) all
causes of action for infringement of copyrights in the Works that may have
arisen prior to this Assignment, including but not limited to all Works,
registrations, registration certificates, and applications identified in
Schedule "A". In addition, Assignor agrees promptly to execute and deliver to
Assignee any such additional assignments of copyrights in the Works as Assignee
may request for the purpose of securing, recording, or otherwise effectuating
this Assignment, and Assignor hereby irrevocably appoints Assignee as Assignor's
attorney-in-fact for the purpose of executing any such additional assignments of
copyrights in the Works in Assignor's name.
DATE: M. POLANER, INC.
------------------------
By:
---------------------------
Name:
Title:
<PAGE>
Subscribed and sworn to
before me on ,
1999
- ---------------------------------
Notary Public
2
<PAGE>
SCHEDULE A
REGISTERED COPYRIGHTS
Title Registration No. Registration Date
- ----- ---------------- -----------------
Polaner All Fruit, black cherry VA 499033 July 24, 1991
Jam Lover, pure apple jelly VA 466383 July 22, 1991
Jam Love, pure jam strawberry VA 466382 July 22, 1991
Jam Lover, pure grape jelly VA 466387 July 22, 1991
Jam Lover, pure marmalade orange VA 466384 July 22, 1991
Polaner Natural red currant jelly VA 476354 July 22, 1991
Polaner Real mint jelly VA 476353 July 22, 1991
Polaner All Fruit orange VA 464598 October 4, 1990
Polaner All Fruit--blueberry VA 428879 October 4, 1990
Polaner All Fruit--apricot VA 428878 October 4, 1990
Polaner All Fruit--strawberry VA 428877 October 4, 1990
Polaner All Fruit--pineapple VA 428876 October 4, 1990
Polaner All Fruit--seedless blackberry VA 428875 October 4, 1990
Polaner All Fruit--raspberry VA 427806 October 4, 1990
Polaner All Fruit--grape VA 427805 October 4, 1990
Polaner All Fruit--peach VA 427804 October 4, 1990
3
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT (ARGENTINA)
<TABLE>
<CAPTION>
TRADEMARK ASSIGNMENT TRANSFERENCIA DE MARCA
-------------------- ----------------------
<S> <C> <C>
Be it known that M. POLANER, INC. Conste que
FULL NAME AND ADDRESS ---------------- -----------------------
OF ASSIGNOR. 1633 Littleton Road
------------------------------------------------- ----------------------------------
Parsippany, New Jersey 07054
------------------------------------------------- ----------------------------------
U.S.A.
-------------------------------------------------
TRADEMARK/S AND THEIR owner of the trademark/s titular de la/s marca/s
REGISTRATION OR
PENDING APPLICATION
NUMBERS. ------------------------------------------------- ----------------------------------
ALL FRUIT Reg. No. 1626782
------------------------------------------------- ----------------------------------
POLANER Reg. No. 1596347
------------------------------------------------- ----------------------------------
POLANER Reg. No. 1596348
------------------------------------------------- ----------------------------------
POLANER ALL FRUIT Reg. No. 1638363
------------------------------------------------- ----------------------------------
------------------------------------------------- ----------------------------------
------------------------------------------------- ----------------------------------
MENTION A SPECIFIC in consideration of the sum of U.S. $400.00, en concepto de la suma de
CONSIDERATION. together with the goodwill of the
business symbolized by the Trademarks ----------------------------------
------------------------------------------------- ----------------------------------
------------------------------------------------
NAME AND ADDRESS OF hereby assigns effective November 1, 1996, all right, por el presente la transfieren en toda su
ASSIGNEE. title and interest in and to the same to propiedad y dominio a
ROSELAND DISTRIBUTION COMPANY
------------------------------------------------ ----------------------------------
c/o B&G Foods, Inc.
------------------------------------------------ ----------------------------------
426 Eagle Rock Avenue
------------------------------------------------ ----------------------------------
Roseland, New Jersey 07068
------------------------------------------------ ----------------------------------
U.S.A.
------------------------------------------------
PREFERABLY LEAVE IN The assignee hereby accepts the El cesionario por el presente
BLANK. assignment and authorizes acepta la transferencia y autoriza a
------------------------------------------------ ------------------------------------
------------------------------------------------ ------------------------------------
------------------------------------------------ ------------------------------------
to do what is necessary in order to give effect to para hacer todo cuanto fuere
the present transfer and to receive the certificate necesario para perfeccionar la presente
of registration and obtain certified copies thereof transferencia con facultad para retirar
where necessary. el titulo y obtener nuevos testimonios
en caso necesario.
PLACE AND DATE OF Done and signed at Dado y firmado en
EXECUTION. ---------------------------- ------------------
NOTARIAL ATTESTATION M. POLANER, INC.
AND CONSULAR
LEGALIZATION REQUIRED (Signature of Assignor)
FOR ALL COUNTRIES ------------------------ -------------------------------------
(firma del Cedente) Name:
-------------------- -------------------------------------
Title:
------------------- -------------------------------------
ROSELAND DISTRIBUTION COMPANY
(Signature of Assignee)
---------------------- -------------------------------------
(firma del Cesionario) Name:
----------------- -------------------------------------
Title:
---------------- -------------------------------------
</TABLE>
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT (ARGENTINA)
STATE OF :
: SS
COUNTY OF :
On this ________ day of ____________________, 1999, before me, a Notary
Public of the State of _________________, United States of America, personally
appeared ____________________________, who identified himself/herself as
____________________ of M. POLANER, INC., a Delaware corporation, and declared
that he/she was authorized to execute the foregoing Assignment of Trademarks on
behalf of M. POLANER, INC.
IN WITNESS WHEREOF, I have set my hand and seal.
--------------------------
Notary Public
APOSTILLE
STATE OF :
: SS
COUNTY OF :
On this _____ day of ________________, 1999 before me, a Notary Public
of the State of ________________, United States of America, personally appeared
________________, who identified himself/herself as ____________________________
of ROSELAND DISTRIBUTION COMPANY, a Delaware corporation, and declared that
he/she was authorized to execute the foregoing Assignment of Trademarks on
behalf of ROSELAND DISTRIBUTION COMPANY.
IN WITNESS WHEREOF, I have set my hand and seal.
-------------------------
Notary Public
APOSTILLE
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT (BRAZIL)
ASSIGNMENT
----------
THIS ASSIGNMENT made effective the day of One thousand nine
hundred and ninety-nine
BETWEEN
M. POLANER, INC.
1633 Littleton Road
Parsippany, New Jersey 07054
U.S.A.
of the one part and
ROSELAND DISTRIBUTION COMPANY
c/o B&G Foods, Inc.
426 Eagle Rock Avenue
Roseland, New Jersey 07068
U.S.A.
of the other part
WITNESSETH THAT
WHEREAS:
(i) The Assignor is the owner in Brazil of the trademark
applications and registrations listed in the annexed Schedule
A, which form part hereof;
(ii) And it has been agreed between the Assignor and the Assignee
for the transfer of the said trademark applications and
registrations to the Assignee.
NOW THIS DEED WITNESSETH that, in accordance with the conditions stated in the
foregoing preamble and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Assignor does hereby sell,
assign and set over to the Assignee the said applications and registrations, all
rights, title and interest whatsoever appertaining or belonging thereto.
<PAGE>
IN WITNESS WHEREOF the Assignor has caused this Assignment to be executed also
by the Assignee in the present of the two witnesses of both parties who also
sign.
Done at this day of 1999.
M. POLANER, INC.
- --------------------------
Name:
Title:
WITNESSES:
1) 2)
----------------------------- ----------------------------
Name: Name:
Nationality: Nationality:
Marital Status: Marital Status:
Occupation: Occupation:
Residence: Residence:
Done at this day of 1999.
ROSELAND DISTRIBUTION COMPANY
- --------------------------------
Name:
Title:
WITNESSES:
1) 2)
----------------------------- ----------------------------
Name: Name:
Nationality: Nationality:
Marital Status: Marital Status:
Occupation: Occupation:
Residence: Residence:
-2-
<PAGE>
BRAZIL
STATE OF :
: SS
COUNTY OF :
On this _______ day of ____________________, 1999, before me, a Notary
Public of the State of __________________, United States of America, personally
appeared ____________________________, who identified himself/herself as
___________________ of M. POLANER, INC., a Delaware corporation, and declared
that he/she was authorized to execute the foregoing Assignment of Trademarks on
behalf of M. POLANER, INC.
IN WITNESS WHEREOF, I have set my hand and seal.
--------------------------
Notary Public
APOSTILLE
STATE OF :
: SS
COUNTY OF :
On this ____ day of _______________, 1999 before me, a Notary Public of
the State of ____________________, United States of America, personally appeared
____________________________________, who identified himself/herself as
_______________________________ of ROSELAND DISTRIBUTION COMPANY, a Delaware
corporation, and declared that he/she was authorized to execute the foregoing
Assignment of Trademarks on behalf of ROSELAND DISTRIBUTION COMPANY.
IN WITNESS WHEREOF, I have set my hand and seal.
-------------------------
Notary Public
APOSTILLE
-3-
<PAGE>
BRAZIL
SCHEDULE A
----------
Registrations:
Mark Reg. No. Registration Date
- ---- -------- -----------------
ALL FRUIT 818648520 October 28, 1997
POLANER 817414088 April 4, 1995
POLANER 817414096 April 4, 1995
-4-
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT (CANADA)
ASSIGNMENT OF TRADEMARKS
------------------------
WHEREAS M. POLANER, INC. ("Assignor"), a Delaware corporation with
offices at 1633 Littleton Road, Parsippany, New Jersey 07054, U.S.A., has
adopted and used the trademarks shown in Schedule A hereto in its business;
AND WHEREAS ROSELAND DISTRIBUTION COMPANY (Assignee"), a Delaware
corporation with offices at c/o B&G Foods, Inc., 426 Eagle Rock Avenue,
Roseland, New Jersey 07068, U.S.A., has on this date acquired the trademarks
shown in Schedule A hereto and any other trademarks, service marks, trade dress
and trade names used in such business (collectively, the "Trademarks"), the
registrations and applications for registration of the Trademarks shown in
Schedule A and any other registrations and applications for registration of the
Trademarks, together with the goodwill of the business symbolized by the
Trademarks.
NOW THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, Assignor hereby assigns to Assignee, its entire right,
title and interest in and to the Trademarks, together with the Registrations and
the goodwill of the business symbolized by the Trademarks, all rights of action
arising from the Trademarks, all claims by reason of infringement of the
Trademarks and the right to sue and collect damages for such infringement, to be
held and enjoyed by Assignee for its own use and benefit and for its successors
and assigns as the same would have been held by Assignor had this assignment not
been made.
Date: __________________ __, 1999
M. POLANER, INC.
By:___________________________
Name:
Title:
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT (CANADA)
CANADA
SCHEDULE A
Mark Reg. No. Reg. Date
- ---- -------- ---------
DON'T DARE CALL IT JELLY! 446944 September 1, 1995
POLANER 268354 April 23, 1982
POLANER ALL FRUIT 482915 September 24, 1997
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT (COLOMBIA)
ASSIGNMENT OF COLOMBIAN TRADEMARKS
The undersigned M. POLANER, INC., duly organized and in existence in accordance
with the laws of the State of Delaware, United States of America, with principal
offices at 1633 Littleton Road, Parsippany, New Jersey 07054, United States of
America (hereinafter called "The Assignor"), on the one hand; and ROSELAND
DISTRIBUTION COMPANY, duly organized and in existence in accordance with the
laws of the State of Delaware, United States of America, with principal offices
at c/o B&G Foods, Inc., 426 Eagle Rock Avenue, Roseland, New Jersey 07068,
United States of America (hereinafter called "The Assignee"), on the other hand,
have entered into an agreement to be governed by the following clauses:
1. The Assignor is the sole proprietor in the Republic of
Colombia of the Colombian trademark registrations and applications listed in the
Annex hereto (hereinafter referred to as the "Marks").
2. The Assignor by means of these presents hereby assigns and
transfers the Marks to the Assignee for the amount of U.S. $10.00 received from
the Assignee, effective November 1, 1996.
3. The Assignee by means of these presents hereby accepts and
receives the assignment of the Marks for the amount of U.S. $10.00 given to the
Assignor.
4. The assignment of the Marks encompasses all the rights
and/or privileges derived or that may derive therefrom and consequently the
Assignee as of this date will be the sole proprietor of the Marks in the
Republic of Colombia to use and dispose of same in whatever manner the Assignee
deems appropriate for its interest.
5. This Agreement is binding for both parties and their
mutual successors.
6. In accordance with Article 616 of the Colombian Commercial
Code, in order for this document to be enforceable before third parties its
recordal must be filed in the Colombian Trademark Office. Therefore Messrs.
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT (COLOMBIA)
are authorized to
file the recordal of this assignment and obtain the definitive certificate
evidencing its completion. The mentioned attorneys are empowered as well to
request and obtain all subsequent renewals of the registration for the Marks.
In testimony whereof the parties have executed this document this ___
day of _______________, 1999..
M. POLANER, INC.
By:
--------------------------------
Name:
Title:
ROSELAND DISTRIBUTION COMPANY
By:
--------------------------------
Name:
Title:
NOTE: The signature of each of the persons signing the document on behalf of the
parties should each be notarized separately using the enclosed notarial
declaration text. The Notary's signature in each case should be authenticated by
the County Clerk, and the Clerk's signature in each case then legalized up to
the Consul for Colombia.
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT (COLOMBIA)
ANNEX
Mark Registration No. Registration Date
- ---- ---------------- -----------------
POLANER 186461 May 30, 1996
POLANER 186460 May 30, 1996
POLANER ALL FRUIT 186458 May 30, 1996
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT (COLOMBIA)
<TABLE>
<CAPTION>
NOTARIAL CERTIFICATION CERTIFICACION NOTARIAL
- ---------------------- ----------------------
<S> <C>
On this day of A los dias del mes de
19 , the undersigned Notary de 19 , el suscrito Notario
CERTIFIES DAFE
1. That 1. Que
of legal age and domiciled in mayor y domiciliado en
set his/her hand on the foregoing document. suscribio de su puno y letra el documento que antecede.
2. That the grantor is to me personally known and that 2. Que conozco al otorgante y que este tiene capacidad legal para
he/she has legal capacity to execute the instrument. el otorgamiento.
3. That the grantor has executed the foregoing document as 3. Que el otorgante ha suscrito el referido documento en su
caracter de
of the juridical person de la persona juridica
M. POLANER, INC.
4. That the juridical person 4. Que la persona juridica
M. POLANER, INC.
(a Delaware corporation)
having its home office in con sede en
1633 Littleton Road
Parsippany, New Jersey 07054
United States of America
is duly organized, has present legal existence and esta legalmente constituida, que tiene existencia legal actual y
that the purposes for which the power of attorney is que el acto para el cual se ha otorgado el poder esta comprendido
granted are within the scope of its corporate purposes. entre los que constituyen su objeto social.
5. That the grantor has in fact the referred to authority 5. Que el otorgante tiene efectivamente la representacion que
and that his/her representation is legal. ostenta, y que esta es legituma.
6. That I have based certifications 3, 4 and 5 above on 6. Que he basado las certificaciones 3, 4 y 5 anteriores en los
the following authentic documents for such purposes siguientes documentos autenticos que al efecto se me exhibieron
exhibited to me and which I mention specifically, y que menciono especificamente con expresion de sus fechas y
giving their dates and their origin or source: de su origen o procedencia:
- ------------------------------------------------------ ---------------------------------------------------------------------
Notary Public El Notario Publico
</TABLE>
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT (COLOMBIA)
<TABLE>
<CAPTION>
NOTARIAL CERTIFICATION CERTIFICACION NOTARIAL
- ---------------------- ----------------------
<S> <C>
On this day of A los dias del mes de
19 , the undersigned Notary de 19 , el suscrito Notario
CERTIFIES DAFE
1. That 1. Que
of legal age and domiciled in mayor y domiciliado en
set his/her hand on the foregoing document. suscribio de su puno y letra el documento que antecede.
2. That the grantor is to me personally known and that 2. Que conozco al otorgante y que este tiene capacidad legal para
he/she has legal capacity to execute the instrument. el otorgamiento.
3. That the grantor has executed the foregoing document as 3. Que el otorgante ha suscrito el referido documento en su
caracter de
of the juridical person de la persona juridica
ROSELAND DISTRIBUTION COMPANY
4. That the juridical person 4. Que la persona juridica
ROSELAND DISTRIBUTION
COMPANY
(a Delaware corporation)
having its home office in con sede en
c/o B&G Foods, Inc.
426 Eagle Rock Avenue
Roseland, New Jersey 07068
United States of America
is duly organized, has present legal existence and esta legalmente constituida, que tiene existencia legal actual y
that the purposes for which the power of attorney is que el acto para el cual se ha otorgado el poder esta comprendido
granted are within the scope of its corporate purposes. entre los que constituyen su objeto social.
5. That the grantor has in fact the referred to authority 5. Que el otorgante tiene efectivamente la representacion que
and that his/her representation is legal. ostenta, y que esta es legituma.
6. That I have based certifications 3, 4 and 5 above on 6. Que he basado las certificaciones 3, 4 y 5 anteriores en los
the following authentic documents for such purposes siguientes documentos autenticos que al efecto se me exhibieron
exhibited to me and which I mention specifically, y que menciono especificamente con expresion de sus fechas y
giving their dates and their origin or source: de su origen o procedencia:
- ------------------------------------------------------ ---------------------------------------------------------------------
Notary Public El Notario Publico
</TABLE>
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT (FRANCE)
ASSIGNMENT OF TRADEMARKS
WHEREAS M. POLANER, INC. ("Assignor"), a Delaware corporation with
offices at 1633 Littleton Road, Parsippany, New Jersey 07054, U.S.A., is the
owner of the following trademark registrations (the "Trademarks"):
Trademark Reg. No. Registration Date
- --------- -------- -----------------
POLANER 1694214 September 18, 1991
AND WHEREAS ROSELAND DISTRIBUTION COMPANY ("Assignee"), a Delaware
corporation with offices at c/o B&G Foods, Inc., 426 Eagle Rock Avenue,
Roseland, New Jersey 07068, U.S.A., has acquired from Assignor certain assets
and property used in Assignor's business and is desirous of acquiring the
Trademarks and the goodwill of the business symbolized by the Trademarks.
NOW THEREFORE, for consideration in the amount of FF 100, receipt of
which is hereby acknowledged, Assignor hereby assigns to Assignee, and Assignee
accepts, all right, title and interest in and to the Trademarks and the goodwill
of the business symbolized by the Trademarks, and all rights of action arising
from the Trademarks, and all claims by reason of infringement of the Trademarks,
and the right to sue and collect damages for such infringement, to be held and
enjoyed by Assignee for its own use and benefit and for its successors and
assigns as the same would have been held by Assignor had this assignment not
been made.
Dated: M. POLANER, INC.
By:
------------------------------
Name:
Title:
ROSELAND DISTRIBUTION COMPANY
By:
------------------------------
Name:
Title:
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT (FRANCE)
FRANCE
STATE OF :
: SS
COUNTY OF :
On this ____ day of _______________, 1999, before me, a Notary Public
of the State of __________________, United States of America, personally
appeared _______________________________, who acknowledged himself/herself to be
________________________________ of M. POLANER, INC., a Delaware corporation,
and who acknowledged himself/herself to be authorized to execute the foregoing
Assignment of Trademarks on behalf of M. POLANER, INC.
IN WITNESS WHEREOF, I have set my hand and seal.
- ----------------------------
Notary Public
STATE OF :
: SS
COUNTY OF :
On this ____ day of _______________, 1999, before me, a Notary Public
of the State of __________________, United States of America, personally
appeared _______________________________, who acknowledged himself/herself to be
________________________________ of ROSELAND DISTRIBUTION COMPANY, a Delaware
corporation, and who acknowledged himself/herself to be authorized to execute
the foregoing Assignment of Trademarks on behalf of ROSELAND DISTRIBUTION
COMPANY.
IN WITNESS WHEREOF, I have set my hand and seal.
- ----------------------------
Notary Public
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT (GREAT BRITAIN)
ASSIGNMENT OF TRADEMARKS
------------------------
WHEREAS M. POLANER, INC. ("Assignor"), a Delaware corporation with
offices at 1633 Littleton Road, Parsippany, New Jersey 07054, U.S.A., is the
owner of the trademarks and trademark registrations shown in the attached
Schedule A (the "Trademarks");
AND WHEREAS ROSELAND DISTRIBUTION COMPANY ("Assignee"), a Delaware
corporation with offices at c/o B&G Foods, Inc., 426 Eagle Rock Avenue,
Roseland, New Jersey 07068, U.S.A., has on this date acquired from Assignor
certain assets and property used in Assignor's business and is desirous of
acquiring the Trademarks and the whole of the goodwill of the business for which
the Trademarks are registered.
NOW THEREFORE, for consideration in the amount of (pound)5,000, receipt
of which is hereby acknowledged, Assignor hereby assigns to Assignee, and
Assignee accepts, all right, title and interest in and to the Trademarks and the
goodwill of the business connected with the Trademarks, all rights of action
arising from the Trademarks, all claims by reason of infringement of the
Trademarks, and the right to sue and collect damages for such infringement, to
be held and enjoyed by Assignee for its own use and benefit and for its
successors and assigns as the same would have been held by assignor had this
assignment not been made.
Dated:
M. POLANER, INC.
By:
-----------------------------
Name:
Title:
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT (GREAT BRITAIN)
GREAT BRITAIN
SCHEDULE A
Mark Registration No. Registration Date
- --- ---------------- -----------------
POLANER 2023320 June 8, 1995
POLANER ALL FRUIT 2023321 June 8, 1995
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT (JAPAN)
ASSIGNMENT OF TRADEMARKS
------------------------
WHEREAS M. POLANER, INC. ("Assignor"), a Delaware corporation with
offices at 1633 Littleton Road, Parsippany, New Jersey 07054, has adopted, used
and is using the trademarks shown in Schedule A hereto in its business;
AND WHEREAS ROSELAND DISTRIBUTION COMPANY ("Assignee"), a Delaware
corporation with offices at c/o B&G Foods, Inc., 426 Eagle Rock Avenue,
Roseland, New Jersey 07068, U.S.A. has on this date acquired from Assignor
certain assets and property used in Assignor's business and is desirous of
acquiring the Trademark, together with the registration of the Trademark and the
goodwill of the business symbolized by the Trademark.
NOW THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, and intending to be legally bound, Assignor hereby assigns
to Assignee all right, title and interest in and to the Trademark, together with
the registration of the Trademark and the goodwill of the business symbolized by
the Trademark, all rights of action arising from the Trademark, all claims by
reason of infringement of the Trademark and the right to sue and collect damages
for such infringement, to be held and enjoyed by Assignee for its own use and
benefit and for its successors and assigns as the same would have been held by
Assignor had this assignment not been made.
Date: _____________ __, 1999
M. POLANER, INC.
By:
-----------------------------
Name:
Title:
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT (JAPAN)
CORPORATION NATIONALITY CERTIFICATE
I do hereby certify that M. POLANER, INC., of 1633 Littleton Road,
Parsippany, New Jersey 07054, U.S.A. is a corporation duly organized under the
laws of the State of Delaware, U.S.A. and that ______________________ who has
signed the foregoing Assignment of Trademarks is a lawful representative of the
said corporation and is authorized to execute certain documents relating to
patents, utility models, designs and trademarks on behalf of the corporation.
Dated this ______ day of ______________ __, 1999.
------------------------------
Notary Public
(Seal)
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT (JAPAN)
CORPORATION NATIONALITY CERTIFICATE
I do hereby certify that ROSELAND DISTRIBUTION COMPANY, of c/o B&G
Foods, Inc., 426 Eagle Rock Avenue, Roseland, New Jersey 07068, U.S.A. is a
corporation duly organized under the laws of the State of Delaware, U.S.A. and
that ____________________________ who has signed the foregoing document is a
lawful representative of the said corporation and is authorized to execute
certain documents relating to patents, utility models, designs and trademarks on
behalf of the corporation.
Dated this ______ day of ______________ __, 1999.
------------------------------
Notary Public
(Seal)
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT (JAPAN)
SCHEDULE A
Trademark Registrations:
Mark Registration. No. Registration Date
- ---- ----------------- -----------------
POLANER 1446685 December 25, 1980
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT (SOUTH KOREA)
DEED OF ASSIGNMENT
WHEREAS M. POLANER, INC. ("Assignor"), a Delaware corporation with
offices at 1633 Littleton Road, Parsippany, New Jersey 07054, U.S.A., has
adopted, used and is using the trademarks shown in Schedule A hereto in its
business;
AND WHEREAS ROSELAND DISTRIBUTION COMPANY ("Assignee"), a Delaware
corporation with offices at c/o B&G Foods, Inc., 426 Eagle Rock Avenue,
Roseland, New Jersey 07068, U.S.A., has on this date acquired from Assignor
certain assets and property used in Assignor's business and is desirous of
acquiring the Trademarks shown in Schedule A, and the goodwill of the business
symbolized by the Trademarks.
NOW THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, and intending to be legally bound, Assignor hereby sells,
assigns and transfers to Assignee all right, title and interest in and to the
Trademarks so far as Korea is concerned, together with the registrations of the
Trademarks shown in Schedule A, in and to all income, royalties, damages and
payments now or hereafter due or payable with respect thereto and in and to all
rights of action arising from the Trademarks, all claims for damages by reason
of past, present and future infringement of the Trademarks and the right to sue
and collect damages for such infringement, to be held and enjoyed by Assignee
for its own use and benefit and for its successors and assigns as the same would
have been held by Assignor had this assignment not been made, and the goodwill
of the business symbolized by the Trademarks.
I, the undersigned, am a lawful representative of M. POLANER, INC., and
I am duly authorized to execute this document on behalf of the corporation.
Dated this ____ day of _______________ __, 1999
Assignor: M. POLANER, INC.
By:
-----------------------------
Name:
Title:
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT (SOUTH KOREA)
SOUTH KOREA
SCHEDULE A
----------
Trademark Class Reg. No. Renewal Date
- --------- ----- -------- ------------
POLANER 02 215256 June 8, 2001
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT (SOUTH KOREA)
SOUTH KOREA
CORPORATE NATIONALITY CERTIFICATE
I/We, the undersigned, do hereby certify:
I. That M. POLANER, INC. is a corporation which was duly incorporated and is
presently existing under the laws of Delaware, U.S.A. and whose principal
place of business is located at 1633 Littleton Road, Parsippany, New Jersey
07054, U.S.A. (the "Corporation"); and
II. That is a lawful representative of the Corporation and he/she is duly
authorized to make the documents relating to patents, utility models,
design, and trademarks, including this Certificate, Power of Attorney and
other documents concerning the recordation of certain rights and changes
thereof, on behalf of the Corporation.
IN WITNESS WHEREOF,
I/We have set my/our hand(s) hereto this ____ day of _________________, 1999.
Company Name: M. POLANER, INC.
----------------------------------------------------
Representatives' Signature
--------------------------------------
Typed Name:
------------------------------------------------------
Title:
-----------------------------------------------------------
Subscribed to and sworn to
before me this _______ day of
______________________, 1999.
(Notarial seal)
Signature:
-------------------------
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT (SOUTH KOREA)
SOUTH KOREA
CORPORATE NATIONALITY CERTIFICATE
I/We, the undersigned, do hereby certify:
I. That ROSELAND DISTRIBUTION COMPANY is a corporation which was duly
incorporated and is presently existing under the laws of Delaware, U.S.A.
and whose principal place of business is located at c/o B&G Foods, 426
Eagle Rock Avenue, Roseland, New Jersey 07068, U.S.A. (the "Corporation");
and
II. That ________________________________ is a lawful representative of the
Corporation and he/she is duly authorized to make the documents relating to
patents utility models, design, and trademarks, including this Certificate,
Power of Attorney and other documents concerning the recordation of certain
rights and changes thereof, on behalf of the Corporation.
IN WITNESS WHEREOF,
I/We have set my/our hand(s) hereto this ____ day of _________________, 1999.
Company Name: ROSELAND DISTRIBUTION COMPANY
----------------------------------------------------
Representatives' Signature
--------------------------------------
Typed Name:
------------------------------------------------------
Title:
-----------------------------------------------------------
Subscribed to and sworn to
before me this _______ day of
______________________, 1999.
(Notarial seal)
Signature:
-------------------------
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT (MEXICO)
<TABLE>
<CAPTION>
ASSIGNMENT CESION
<S> <C> <C>
By this contract Por este Contrato
Assignor's M. POLANER, INC. M. POLANER, INC.
Name:
Assignor's addressed at domiciliada en
Address: 1633 Littleton Road 1633 Littleton Road
Parsippany, New Jersey 07054 Parsippany, New Jersey 07054
U.S.A. E.U.A.
assign(s), sell(s) and transfer(s) in whole cede(n), vende(n) y transfiere(n) en toda
ownership and dominion to propiedad y dominio a
Assignee's ROSELAND DISTRIBUTION COMPANY ROSELAND DISTRIBUTION COMPANY
Name
Address: addressed at domiciliada en
c/o B&G Foods, Inc. c/o B&G Foods, Inc.
426 Eagle Rock Avenue 426 Eagle Rock Avenue
Roseland, New Jersey 07068 Roseland, New Jersey 07068
U.S.A. E.U.A.
List of patents, all rights, titles and interests on the todos los derechos, titulos e intereses
applications or following industrial property rights: correspondientes a los siguientes privilegios
trade marks de propiedad industrial:
assigned
456,081 (ALL FRUIT) 456,081 (ALL FRUIT)
452,936 (POLANER) 452,936 (POLANER)
452,935 (POLANER) 452,935 (POLANER)
SN 2834 (DON'T DARE CALL IT JELLY) SN 2834 (DON'T DARE CALL IT JELLY)
Consideration or The price of this transfer is the El precio de esta transferencia es la
price of the amount of N$4.50. cantidad de: N$4.50 neuvos pesos.
assignment Mexican Currency, freely fixed by the libremente fijado por las partes y ya recibido
parties and already received by the por la parte cedente.
assignor.
Este contrato sera registrado ante el Instituto
This Contract will be recorded before the Mexicano de la Propiedad Industrial y/o
Mexican Institute of Industrial Property cualquier otra Oficina Gubernativa
and/or any other pertinent Governmental correspondiente, para este efecto las partes
Office and to this effect the parties designan como sus Apoderados a los Sres.
appoint as attorneys Messrs
de la ciudad de Mexico, D.F. para que ellos
of the City of Mexico, so they can puedan conjunta o separadamente llevar al cabo
jointly or separately carry on all todas las gestiones necesarias ante dichas
necessary procedures before those autoridades y asimismo para que mantengan en
authorities, as well as to preserve the completa fuerza y vigor los derechos
rights assigned in full force and effect. transferidos.
Date and place Signed by the Assignor Firmado por el Cedente
of execution by on the date of: en la fecha de:
Assignor
in the City of: en la Ciudad de:
Date and place Signed by the Assignee Firmado por la Cesionaria
of execution by
Assignee on the date of: en la fecha de:
in the City of: en la Cuidad de:
</TABLE>
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT (MEXICO)
CEDENTE (Assignor) CESIONARIA (Assignee)
M. POLANER, INC. ROSELAND DISTRIBUTION COMPANY
Signature of
parties
--------------------------- -----------------------------
TESTIGOS (Witnesses) TESTIGUS (Witnesses)
Signature of 2 --------------------------- -----------------------------
Witnesses per Name: Name:
each party Title: Title:
--------------------------- -----------------------------
Name: Name:
Title: Title:
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT (MEXICO)
<TABLE>
<CAPTION>
CERTIFICATION NOTARIAL NOTARIAL CERTIFICATION
- ---------------------- ----------------------
<S> <C>
Yo, un Notario Publico, certifico que el dfa I, a Notary Public, certify that on the _____ date of
_______ del mes de _______________ de 19__ (1) _____________________ before me personally appeared
ante mf comparecio(eron) personalmente
(2)
a quien(es) conozco y de quien(es) me consta tiene(n) to me known and known to me to be of legal capacity and
capacidad legal y reconocio(eron) como suya(s) la(s) acknowledged his (their) signature(s) appearing on the
firma(s) que aparece(n) en el documento anterior cuyo foregoing instrument and ratified the same.
contenido ratifico(aron).
Yo ademas certifico que el (los)Sr.(es) I also certify that Mr.(Messrs.)
(3)
quien(es) firmo(aron) el citado documento en who signed the foregoing instrument on behalf of
representacion(de.) M. POLANER, INC.
(4)
una sociedad debidamente organizada y existiendo a corporation duly organized and legally existing under the
legalmente bajo las leyes del Estado de (5) laws of the State of
Delaware
con domicilio en domiciled at 1633 Littleton Road, Parsippany, New Jersey
07054, U.S.A.
(6)
es(son) su(s) legitimo(s) is (are) its legitimate
(7)
de acuerdo con el nombramiento que yo he visto expedido in accordance with the appointment which I have seen issued
en la ciudad de in the city of
(8)
el dia de de 19 (9) on
por el Consejo de Administracion de la citada sociedad, by the Board of Directors of said corporation, which was
debidamente electo por la Asamblea General de duly elected by the General Meeting of Stockholders held in
Accionistas celebrado en on
el dia de de 19 (10) as evidenced by the minutes I have seen and has the
como consta del acta que he leido, y que tiene las competence of representing same, including faculties to grant
facultades de representacion de la misma, incluyendo la powers.
de otorgar poderes.
Y ademas certifico que dicho(s) individuo(s) esta(n) I further certify that said individual(s) is (are) duly
debidamente autorizado(s) para firmar el documento authorized to sign the foregoing nstrument in the name of
anterior en nombre de la mencionada sociedad de acuerdo said corporation in accordance with his (their) above
con su(s) antes indicado(s) cargo(s) y/o con una mentioned position(s) and/or with a resolution of the Board
resolucion del Consejo de Administracion de la citada of Directors of said corporation, taken on
sociedad adoptada el (11)
en la ciudad de (12) in the City of which I have seen.
cuya resolucion yo he visto.
Y finalmente certifico que los objetos para loscuales se I finally certify that the purposes for which said instrument is
ortogo dicho documento se encuentran dentro de los granted are within the scope of the objects or activities of said
objetos y actividades de la citada sociedad, de acuerdo corporation, in accordance with the Act of Incorporation
con la escritura constitutiva expedida en la Ciudad de issued in the City of
(13)
con fecha (14) and dated
y/o con los Estatutos expedidos en la and/or the By-Laws issued in the
Ciudad de City of
con fecha (15) and dated
los cuales he visto. Doy fe. (16) which both I have seen. I attest.
Firmado en: (17) Signed in:
Fechado el: (18) Dated:
NOTARIO PUBLICO NOTARY PUBLIC
(19)
- ----------------------------------------------- ---------------------------------------
</TABLE>
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT (MEXICO)
<TABLE>
<CAPTION>
CERTIFICATION NOTARIAL NOTARIAL CERTIFICATION
- ---------------------- ----------------------
<S> <C>
Yo, un Notario Publico, certifico que el dfa I, a Notary Public, certify that on the _____ date of
_______ del mes de _______________ de 19__ (1) _____________________ before me personally appeared
ante mf comparecio(eron) personalmente
(2)
a quien(es) conozco y de quien(es) me consta tiene(n) to me known and known to me to be of legal capacity and
capacidad legal y reconocio(eron) como suya(s) la(s) acknowledged his (their) signature(s) appearing on the
firma(s) que aparece(n) en el documento anterior cuyo foregoing instrument and ratified the same.
contenido ratifico(aron).
Yo ademas certifico que el (los)Sr.(es) I also certify that Mr.(Messrs.)
(3)
quien(es) firmo(aron) el citado documento en who signed the foregoing instrument on behalf of
representacion(de.) ROSELAND DISTRIBUTION COMPANY
(4)
una sociedad debidamente organizada y existiendo a corporation duly organized and legally existing under the
legalmente bajo las leyes del Estado de (5) laws of the State of
Delaware
con domicilio en (6) domiciled at c/o B&G Foods, Inc., 426 Eagle Rock Avenue,
Roseland, New Jersey 07068, U.S.A.
es(son) su(s) legitimo(s) is (are) its legitimate
(7)
de acuerdo con el nombramiento que yo he visto expedido in accordance with the appointment which I have seen issued
en la ciudad de in the city of
(8)
el dia de de 19 (9) on
por el Consejo de Administracion de la citada sociedad, by the Board of Directors of said corporation, which was
debidamente electo por la Asamblea General de duly elected by the General Meeting of Stockholders held in
Accionistas celebrado en on
el dia de de 19 (10) as evidenced by the minutes I have seen and has the
como consta del acta que he leido, y que tiene las competence of representing same, including faculties to grant
facultades de representacion de la misma, incluyendo la powers.
de otorgar poderes.
Y ademas certifico que dicho(s) individuo(s) esta(n) I further certify that said individual(s) is (are) duly
debidamente autorizado(s) para firmar el documento authorized to sign the foregoing nstrument in the name of
anterior en nombre de la mencionada sociedad de acuerdo said corporation in accordance with his (their) above
con su(s) antes indicado(s) cargo(s) y/o con una mentioned position(s) and/or with a resolution of the Board
resolucion del Consejo de Administracion de la citada of Directors of said corporation, taken on
sociedad adoptada el (11)
en la ciudad de (12) in the City of which I have seen.
cuya resolucion yo he visto.
Y finalmente certifico que los objetos para loscuales se I finally certify that the purposes for which said instrument is
ortogo dicho documento se encuentran dentro de los granted are within the scope of the objects or activities of said
objetos y actividades de la citada sociedad, de acuerdo corporation, in accordance with the Act of Incorporation
con la escritura constitutiva expedida en la Ciudad de issued in the City of
(13)
con fecha (14) and dated
y/o con los Estatutos expedidos en la and/or the By-Laws issued in the
Ciudad de City of
con fecha (15) and dated
los cuales he visto. Doy fe. (16) which both I have seen. I attest.
Firmado en: (17) Signed in:
Fechado el: (18) Dated:
NOTARIO PUBLICO NOTARY PUBLIC
(19)
- ----------------------------------------------- ---------------------------------------
</TABLE>
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT (PANAMA)
<TABLE>
<CAPTION>
===================================================================================================================================
ASSIGNMENT AND POWER OF ATTORNEY CESION CON PODER
<S> <C>
Be it known that I/we the undersigned _______________ Por este medio el/los suscrito/s
M. POLANER, INC. of 1633 Littleton Road,
- ------------------------------------------------------- ----------------------------------------------------------
Parsippany, New Jersey 07054, United States of
- ------------------------------------------------------- ----------------------------------------------------------
America
- ------------------------------------------------------- ----------------------------------------------------------
owners of ALL FRUIT (Reg. No. 70281); POLANER propietarios de
- ------------------------------------------------------- ------------------------------------------
(Reg. No. 70280)
- ------------------------------------------------------- ----------------------------------------------------------
in consideration of the sum of U.S. $10.00 and other
------------ ----------------------------------------------------------
good and valuable consideration en concepto de la suma de
- ------------------------------------------------------- --------------------------------
receipt whereof is hereby acknowledged, do hereby ----------------------------------------------------------
assign, sell and transfer all my/our right, title and que declaran haber recibido, ceden y transfieren todos
interest in and to the same to ROSELAND sus derechos y titulos de prop edad y dominio sobre _______
--------
DISTRIBUTION COMPANY of c/o B&G Foods,
- ------------------------------------------------------- ----------------------------------------------------------
Inc., 426 Eagle Rock Avenue, Roseland, New
- ------------------------------------------------------- ----------------------------------------------------------
Jersey 07069, United States of America
- ------------------------------------------------------- ----------------------------------------------------------
- ------------------------------------------------------- con todas las prerrogativas correspondientes sin
together with all privileges pertaining thereto without excepcion alguna, de tal modo que los cesionarios
any exception whatsoever, the assignee/s henceforth podran en adelante considerarse como unicos duenos de
having the right to consider himself/themselves as tales marcas y podran asi disponer de ellas libremente
the sole owner/s of same and to use or make any sin que haya luga a reclamacion ulterior alguna al
other disposal of same as he/they shall deem fit, respecto por parte de los cedentes en ningun caso ni en
without any assignor/s in any event or at any time. ningun tiempo.
Los cesionarios por este medio aceptan la
The assignee/s hereby accepts the transfer and transferencia, y autorizan a ,
authorize/s , con oficina en ,
with offices at
, Ciudad de Panama, Republica de Panama, para que
Panama City, Panama, what is necessary in order perfeccione la transferencia, con plenas facultades
to give to the present transfer with full para ello. Asimismo facultan a dichos apoderados
powers in the premises. They further empower para recabar de las oficinas y autoridade
the said attorneys to apply to the proper national competentes la obtencion de registros y renovaciones
bureaux and authorities for the issuance of thede de marcas, promover oposiciones, solicitar
mark registrations and renewal and to file testimonios, recibir documentos, acepta
oppositions bespeak certified copies, receive transferencias, formula apelaciones, desistir y
documents, accept transfers, enter appeals, percibir, y hacer cuanto fuere necesario ante
withdraw, collect, and do all and whatsoever shall caulquiera autoridades administrativas o judiciales.
be necessary before any judicial or administrative Los facultan asimismo para substituir el presente
authorities with power also to appoint a substitute poder.
hereunder.
Given and signed at (Dado y firmado en) ___________________________________________________________________________________________
This (a los) day of (dias de) of (de) 19
---------------------- ---------------------------- ----------------------------------------
Signature of Assignor (Firma del Cedente) ________________________________________________________________________________________
Signature of Assignee (Firma del Cesionario) _______________________________________________________________________________________
===================================================================================================================================
</TABLE>
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT (PANAMA)
<TABLE>
<CAPTION>
===================================================================================================================================
NOTARIAL CERTIFICATE (CORPORATION) CERTIFICADO NOTARIAL (CORPORACION)
<S> <C>
I, _____________________________________________ YO, ______________________________________________________
Notary Public in and for _______________________ Notario Publico en y para _________________________________
Certify: ______________________________________ Certifico: _______________________________________________
On the _________________ day of ________________ Que en el _________ dia de _______________________________
________________________________________________ ___________________________________________________________
before me personally appeared __________________ comparecio ante mi _______________________________________
________________________________________________ ___________________________________________________________
to me known and known to me to be the person who a quien conozco y quien me consta que es la persona
signed the foregoing instrument as _____________ que firmo el instrumento que antecede en su calidad de
of M. POLANER, INC.
- ------------------------------------------------ ------------------------------------------------------------
I further certify that said individual is duly Certifico, ademas, que dicha persona esta debidamente
authorized to sign the foregoing instrument in the facultada para firmar el instrumento que antecede en
name of said corporation and that the purposes for nombre de la citada sociedad y que los objetivos y
which said instrument are granted are within the finalidades para los que se otorga el mencionado
scope of the objects or activities of said corporation. instrumento estan comprendidos dentro de los
The foregoing is based on the ________________________ objectivos o actividades de la mencionada sociedad.
- ------------------------------------------------------- Lo que antecede se basa en la ______________________________
dated ________________________________________________ ____________________________________________________________
which I have seen. de fecha ___________________________________________________
que he tenido a la vista.
NOTARIAL CERTIFICATE (CORPORATION) CERTIFICADO NOTARIAL (CORPORACION)
I, ____________________________________ Notary Public Yo, ______________________________________________________
in and for __________________________________________ Notario Publico en y para _________________________________
Certify: __________________________________________ Certifico: _________________________________________________
On the ________________ day of ______________________ Que en el _________ dia de _________________________________
before me personally appeared ______________________ comparecio ante mi ________________________________________
_______________________________________________________ ____________________________________________________________
to me known and known to me to be the person who a quien conozco y quien me consta que es la persona
signed the foregoing instrument as ___________________ que firmo el instrumento que antecede en su calidad de
_______________________________________________________ ____________________________________________________________
of ROSELAND DISTRIBUTION COMPANY
---------------------------------------------------- ____________________________________________________________
I further certify that said individual is duly Certifico, ademas, que dicha persona esta debidamente
authorized to sign the foregoing instrument in the facultada para firmar el instrumento que antecede en
name of said corporation and that the purposes for nombre de la citada sociedad y que los objetivos y
which said instrument are granted are within the finalidades para los que se otorga el mencionado
scope of the objects or activities of said corporation. instrumento estan comprendidos dentro de los objectivos
The foregoing is based on the ______________________ objectivos o actividades de la mencionada sociedad.
_______________________________________________________ Lo que antecede se basa en la ______________________________
dated _________________________________________________ de fecha ____________________________________________________
which I have seen. que he tenido a la vista.
===================================================================================================================================
</TABLE>
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT (PERU)
TRANSFERENCIA Y PODER
(ASSIGNMENT AND POWER OF ATTORNEY)
--------------------------------
La que suscribe, M. POLANER, INC. una sociedad organizada conforme a
-----------------
las leyes de Delaware con oficinas comerciales en 1633 Littleton Road,
-------- ----------------------
Parsippany, New Jersey 07054, Estados Unidos de America (mas adelante llamada la
- ----------------------------
cedente) propietaria de la(s) marca(s) de fabrica siguiente(s):
Trademark Reg. No. Reg. Date
--------- -------- ----------
POLANER 24509 March 22, 1996
declara por el presente instrumento que vende, cede y traspasa en toda propiedad
y dominio a la ROSELAND DISTRIBUTION COMPANY, una sociedad organizada conforme a
-----------------------------
las leyes de Delaware con oficinas comerciales en c/o B&G Foods, Inc., 426 Eagle
------------------------------
Rock Avenue, Roseland, New Jersey 07068, Estados Unidos de America (mas adelante
- ---------------------------------------
llamada la cesionaria) la(s) referida(s) marca(s) de fabrica, asi como todos los
derechos y privilegios que a ella(s) se refiera(n) y corresponda(n), sin
excepcion de ninguna clase, pudiendo por consiguiente de hoy en adelante la
cesionaria arriba nombrada, considerarse unica duena, explotarla(s) como cosa
propia, o bien disponer de ella(s) como mejor conviniere a sus intereses, sin
que haya lugar a reclamacion ulterior alguna por parte de dicha cedente, en
ningun caso ni en ningun tiempo.
Mediante este documento, la cesionaria acepta dicho traspaso y faculta
asimismo a __________________________, y/o _______________________________ y/o
___________________________________, y/o _________________________________, y/o
_______________________________, para que hagan inscribir este traspaso,
soliciten los testimonios que requieran y continuen hasta su terminacion la
tramitacion de este asunto, dandoles asimismo facultad para registrar, renovar e
inscribir sus marcas de fabrica, de comercio, de servicio y en general todos sus
derechos de Propiedad Industrial; pudiendo substituir y reasumir este Poder
cuantas veces lo estimen conveniente.
Dado y firmado en _____________________________________________________
a los ________ dias del mes de _________________________ de 1999.
M. POLANER, INC.
Por______________________________
Name:
Title:
Dado y firmado en _____________________________________________________
a los ________ dias del mes de _________________________ de 1999.
ROSELAND DISTRIBUTION COMPANY
Por______________________________
Name:
Title:
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
I, _________________________________ Yo, _____________________, Notario
Notary Public, certify: Publico, certifico:
Que en el dia ______ de
On the _____ day of ________________________, _____________ de 19__, comparecid
19__, before me personally appeared ante mi ________________________ a
_____________________________________________ quien conozco y quien me consta que es
to me known and known to me to be the person la persona que firmo el instrumento que
who signed the foregoing instrument as antecede en su calidad de
of M. POLANER, de la
- ----------------------------- ---------- ----------------------------------
INC.
- -------------------------------------------- ----------------------------------------
a corporation duly organized and legally existing sociedad debidamente constituida y con
under the laws of Delaware existencia legal bajo las leyes
--------
, whose home office is located in 1633
- ----------- ---- -----------------------------------------
Littleton Road, Parsippany, New Jersey 07054, con domicilio en .
- --------------------------------------------- ------------------------
U.S.A.
- ------
Certifico, ademas, de que dicha persona
I further certify that said individual is duly esta debidamente facultada para firmar
authorized to sign the foregoing instrument in the el instrumento que antecede en nombre
name of said corporation and that the purposes de la citada sociedad y que los objetivos
for which said instrument are granted are within y finalidades para los que se otorga el
the scope of the objects or activities of said mencionado instrumento estan
corporation. comprendidos dentro de los objetivos o
actividades de la mencionada sociedad.
The foregoing is based on the _____________________ Lo que antecede se basa en la
___________________________________________________ ____________________
___________________________________________________ de fecha
dated ____________________ which I have que he tenido a la visa.
seen.
</TABLE>
Notario Publico __________________________________________
ASSIGNOR'S ACKNOWLEDGMENT
-------------------------
with consular legalization
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
I, _________________________________ Yo, _____________________, Notario
Notary Public, certify: Publico, certifico:
Que en el dia ______ de
On the _____ day of ________________________, _____________ de 19__, comparecid
19__, before me personally appeared ante mi ________________________ a
_____________________________________________ quien conozco y quien me consta que es
to me known and known to me to be the person la persona que firmo el instrumento que
who signed the foregoing instrument as antecede en su calidad de
of ROSELAND, de la
- -------------------------------- -------- ---------------------------------
DISTRIBUTION COMPANY
- -------------------------------------------- ----------------------------------------
a corporation duly organized and legally existing sociedad debidamente constituida y con
under the laws of Delaware existencia legal bajo las leyes
-------- ----------------------------------------
_____________, whose home office is located in _________________________________________
c/o B&G Foods, Inc., 426 Eagle Rock Avenue, con domicilio en _______________________.
- ------------------------------------------
Roseland, New Jersey 07068, U.S.A.
- ----------------------------------
Certifico, ademas, de que dicha persona
I further certify that said individual is duly esta debidamente facultada para firmar
authorized to sign the foregoing instrument in the el instrumento que antecede en nombre
name of said corporation and that the purposes de la citada sociedad y que los objetivos
for which said instrument are granted are within y finalidades para los que se otorga el
the scope of the objects or activities of said mencionado instrumento estan
corporation. comprendidos dentro de los objetivos o
actividades de la mencionada sociedad.
The foregoing is based on the _____________________ Lo que antecede se basa en la
___________________________________________________ ____________________
___________________________________________________ de fecha
dated ____________________ which I have que he tenido a la visa.
seen.
</TABLE>
Notario Publico __________________________________________
ASSIGNOR'S ACKNOWLEDGMENT
-------------------------
with consular legalization
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT (PHILIPPINES)
ASSIGNMENT OF TRADEMARKS
------------------------
WHEREAS M. POLANER, INC. ("Assignor"), a Delaware corporation with
offices at 1633 Littleton Road, Parsippany, New Jersey 07054, U.S.A., is the
owner of the trademark registrations and applications for registration shown in
the attached Schedule A (collectively, the "Trademarks");
AND WHEREAS ROSELAND DISTRIBUTION COMPANY ("Assignee"), a Delaware
corporation with offices at c/o B&G Foods, Inc., 426 Eagle Rock Avenue,
Roseland, New Jersey 07068, U.S.A., has on this date acquired from Assignor
certain assets and property used in Assignor's business and is desirous of
acquiring the Trademarks and the goodwill of the business symbolized by the
Trademarks.
NOW THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, Assignor hereby assigns to Assignee its entire right, title
and interest in and to the Trademarks and the goodwill of the business
symbolized by the Trademarks, all rights of action arising from the Trademarks,
all claims by reason of infringement of the Trademarks, and the right to sue and
collect damages for such infringement, to be held and enjoyed by Assignee for
its own use and benefit and for its successors and assigns as the same would
have been held by assignor had this assignment not been made.
Date: _________________, 1999
Subscribed and sworn to M. POLANER, INC.
before me on
By:
----------------------------
- ------------------------------ Name:
Notary Public Title:
ASSIGNEE does hereby acknowledge and accept this assignment.
Subscribed and sworn to ROSELAND DISTRIBUTION COMPANY
before me on
By:
----------------------------
- ------------------------------ Name:
Notary Public Title:
<PAGE>
PHILIPPINES
SCHEDULE A
Registrations:
Trademark Reg. No. Reg. Date
- --------- ------- ---------
POLANER 96041 July 30, 1997
Applications:
Trademark Serial No. Filing Date
- --------- ---------- -----------
ALL FRUIT 96042 October 27, 1994
POLANER FANCY FRUIT 96043 October 27, 1994
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT (VENEZUELA)
ASSIGNMENT
The undersigned, M. POLANER, INC., domiciled in 1633 Littleton Road, Parsippany,
New Jersey 07054, U.S.A., do declare that we assign and transfer for the amount
of US$ 10.00 (Ten United States Dollars), our entire right, title and interest,
together with the goodwill connected with the use of and symbolized by said
Trademark Rights, all in Venezuela, to the trademarks included in the attached
list, to ROSELAND DISTRIBUTION COMPANY, domiciled in c/o B&G Foods, 426 Eagle
Rock Avenue, Roseland, New Jersey 07068, United States of America, which from
now on will be the sole and only owner of the Trademarks, to exploit them as its
owns property and dispose of them as deemed most convenient to its own interest,
with no possibility of any future claim on our part, in any case or at any time.
We declare also that we do not assign hereunder any other Trademark equal or
similar to the one assigned.
The Assignee, ROSELAND DISTRIBUTION COMPANY, accepts herein the assignment and
requests that it be recorded in the Registry Office of the Industrial Property
of the Ministry of Development of the Republic of Venezuela.--------------------
Granted and signed in M. POLANER, INC.
By:
-----------------------------
on this Name:
Title:
Granted and signed in ROSELAND DISTRIBUTION COMPANY
By:
-----------------------------
on this Name:
Title:
(This document should be legalized up to the Venezuelan Consulate)
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT (VENEZUELA)
STATE OF :
: SS
COUNTY OF :
On this ____ day of _______________, 1999, before me, a Notary Public
of the State of __________________, United States of America, personally
appeared ____________________________________, who identified himself/herself as
________________________________ of M. POLANER, INC., a Delaware corporation,
and he/she was authorized to execute the foregoing Assignment of Trademarks on
behalf of M. POLANER, INC.
IN WITNESS WHEREOF, I have set my hand and seal.
----------------------------
Notary Public
LEGALIZATION
STATE OF :
: SS
COUNTY OF :
On this ____ day of _______________, 1999, before me, a Notary Public
of the State of __________________, United States of America, personally
appeared ____________________________________, who identified himself/herself as
________________________________ of ROSELAND DISTRIBUTION COMPANY, a Delaware
corporation, and that he/she was authorized to execute the foregoing Assignment
of Trademarks on behalf of ROSELAND DISTRIBUTION COMPANY.
IN WITNESS WHEREOF, I have set my hand and seal.
----------------------------
Notary Public
LEGALIZATION
<PAGE>
EXHIBIT B
FORM OF ASSIGNMENT AGREEMENT (VENEZUELA)
Schedule to Trademark Assignment
--------------------------------
Applications:
Mark Serial No. Filing Date
- ---- ---------- -----------
POLANER 17567/93 September 24, 1993
POLANER 19164/93 October 20, 1993
POLANER ALL FRUIT 11380/94 August 29, 1994
<PAGE>
EXHIBIT C
FORM OF ASSUMPTION AGREEMENT
ASSUMPTION AGREEMENT, dated January ___, 1999 (this "Assumption
Agreement"), between Roseland Distribution Company, a Delaware corporation
("Purchaser"), and International Home Foods, Inc., a Delaware corporation
("IHF") and M. Polaner Inc., a Delaware corporation and wholly-owned subsidiary
of IHF ("MPI" and together with IHF, the "Sellers").
W I T N E S S E T H:
WHEREAS, Purchaser and Sellers have executed and delivered an Asset
Purchase Agreement dated as of January 12, 1999 (the "Asset Purchase
Agreement"), pursuant to which, among other things, Purchaser will purchase from
the Sellers the business and certain assets of the Sellers relating to or used
or dedicated to use in connection with the Acquired Business.
NOW, THEREFORE, in consideration of the Purchase Price and the
transactions pursuant to the Asset Purchase Agreement, the parties hereto do
take the following action:
A. Subject to the terms and provisions of this Agreement, and except as
otherwise provided by this Section A, Purchaser shall assume the following
liabilities of Sellers and no other liabilities of Sellers except the following
liabilities (the "Assumed Liabilities"):
(1) liabilities and obligations arising after the date hereof
relating to the Assumed Contracts;
(2) all liabilities and obligations expressly assumed pursuant to the
Asset Purchase Agreement by Purchaser;
(3) all liabilities and obligations for trade promotion payables or
deductions with respect to sales of products of the Acquired
Business after the date hereof;
(4) all liabilities and obligations for committed marketing
expenditures for programs of the Acquired Business to be in effect
after the date hereof; and
(5) all liabilities and obligations for consumer coupons for products
of the Acquired Business received by Sellers' coupon redemption
agents for reimbursement after the date hereof.
B. Without limiting the generality of Section A above, and regardless
of whether any of the following may be disclosed to Purchaser pursuant to the
Asset Purchase
<PAGE>
Agreement or otherwise or whether Purchaser may have knowledge of the same,
except as specifically provided as an Assumed Liability herein or in the Asset
Purchase Agreement, Purchaser shall not assume any obligation or liability
relating to the Acquired Business or the Purchased Assets, whether direct or
indirect, absolute or contingent, known or unknown and whether or not accrued.
Without limiting the generality of the foregoing, each of the following shall be
Excluded Liabilities and none shall be Assumed Liabilities for purposes of this
Assumption Agreement or the Asset Purchase Agreement:
(1) Taxes incurred in or attributable to any period up to and
including the date hereof, regardless of whether such obligations
or liabilities may be set forth in the Financial Statements or
disclosed in the notes or schedules thereto;
(2) any civil or criminal penalties (including interest) imposed upon
IHF or MPI on account of any fraudulent, criminal, intentional,
willful or negligent act or omission of IHF or MPI or any
violation of law by IHF or MPI;
(3) all liabilities arising out of, based upon or resulting from any
actions, suits, claims or proceedings, whether in law or equity,
pending or threatened, based upon any transactions or occurrences
or acts or omissions of IHF or MPI or the Acquired Business on or
prior to the date hereof;
(4) all liabilities and obligations of Sellers relating to employees
of Sellers or their affiliates, including but not limited to
Benefit Plans, pension plans, policies, employment agreements,
compensation agreements, stock appreciation rights, or stock
option plans, accrued vacation or holiday pay, profit-sharing or
bonuses, fringe benefits, severance pay, retirement benefits,
health insurance or other benefits, including continued group
health care coverage under applicable law, sick pay, or other
benefits arising out of or accrued with respect to employment of
any person by Sellers;
(5) all liabilities and obligations for Environmental Liabilities;
(6) all liabilities and obligations for product liability claims for
products manufactured or sold by Sellers or the Acquired Business
through the date hereof, other than liabilities and obligations
that are a direct and primary result of acts or omissions of
Purchaser or its affiliates;
(7) all liabilities and obligations to the extent applicable to
periods prior to the date hereof for infringement by Sellers or
the Acquired Business of any intellectual property rights of any
Person;
(8) all liabilities and obligations arising prior to the date hereof
under that certain Royalty Agreement dated March 27, 1981 by and
between Food Creations, Inc. and M. Polaner, Inc.;
2
<PAGE>
(9) all liabilities and obligations for sales commissions payable to
sales personnel, agents or representatives of Sellers for sales of
products of the Acquired Business occurring through the date
hereof and for sales of all other products whether occurring prior
to, on or following the date hereof;
(10) all liabilities pertaining exclusively to any of the Excluded
Assets; and
(11) all liabilities of Sellers under the Asset Purchase Agreement.
C. For all purposes of this Assumption Agreement, any reference to any
"liability" or "obligation" of Sellers or the Acquired Business shall include
without limitation (i) any right to payment and (ii) any right to an equitable
remedy, in each case whether or not such right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured.
D. Purchaser shall pay, satisfy and discharge the Assumed Liabilities
in accordance with their terms, subject to any defenses or claimed offsets
existing on the date hereof and asserted in good faith against the obligee to
whom such liabilities are owed. Nothing contained in the foregoing sentence
shall be construed to prohibit Purchaser from asserting, against such obligee,
defenses or claimed offsets which arise after the date hereof; provided,
however, that Purchaser shall hold Sellers harmless for any losses or
liabilities incurred by Sellers following the date hereof as a result of such
Assumed Liabilities.
E. This Assumption Agreement is subject to the terms and provisions of
the Asset Purchase Agreement. However, nothing contained herein shall be deemed
to enlarge, amend or alter the terms and provisions of the Asset Purchase
Agreement.
F. Capitalized terms used but not defined in this Assumption Agreement
shall have the respective meanings assigned to them in the Asset Purchase
Agreement.
3
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Assumption
Agreement as of the date first above written.
ROSELAND DISTRIBUTION COMPANY
By:
------------------------------
Name:
Title:
INTERNATIONAL HOME FOODS, INC.
By:
------------------------------
Name:
Title:
M. POLANER, INC.
By:
------------------------------
Name:
Title:
4
<PAGE>
TRANSITION SERVICES AGREEMENT
This TRANSITION SERVICES AGREEMENT (this "Agreement") is made as of
January ___, 1999, by and between International Home Foods, Inc., a Delaware
corporation ("Parent"), and M. Polaner, Inc. a Delaware corporation and wholly
owned subsidiary of Parent (collectively with Parent, the "Sellers"), and
Roseland Distribution Company, a Delaware corporation ("Purchaser").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Asset Purchase Agreement, dated as of
January 12, 1999, between Sellers and Purchaser (the "Asset Purchase
Agreement"), Sellers have agreed to sell to Purchaser and Purchaser has agreed
to Purchase from Seller the Purchased Assets (as defined in the Asset Purchase
Agreement).
WHEREAS, in connection therewith, Purchaser and Sellers desire that
Sellers provide Purchaser with certain transition services as set forth herein;
and
WHEREAS, capitalized terms used herein and not otherwise defined herein
have the meanings given to such terms in the Asset Purchase Agreement;
NOW, THEREFORE, in consideration of the premises and covenants set
forth herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Sellers and Purchaser agree as
follows:
1. Transition Services. During the term of this Agreement as set forth
in Section 4 below (the "Transition Period"), Sellers shall provide, or cause
its Affiliates to provide to Purchaser (or, if requested by Purchaser, to
Affiliates of Purchaser), as requested by Purchaser, the services set forth on
Annex A in the manner and at a relative level of service consistent in all
material respects with that provided by Seller or its Affiliates to the Acquired
Business immediately prior to the date hereof and levels substantially
consistent with the levels provided during the year ended December 31, 1998.
2. Billing and Payment. Sellers shall invoice Purchaser for services
provided under this Agreement at the end of each fiscal month of Sellers during
the transition period. Such invoices shall set forth in reasonable detail the
services provided hereunder during such month and the charges therefor. All
invoices shall be paid by wire transfer not later than 30 days following receipt
by Purchaser of Seller's invoice in accordance with the instructions provided by
Sellers (in writing to Purchaser).
3. Validity of Documents. The parties hereto shall be entitled to rely
upon the genuineness, validity or truthfulness of any document, instrument or
other writing presented in connection with this Agreement unless such document,
instrument or other writing appears on its face to be fraudulent, false or
forged.
4. Term of Agreement. The term of this Agreement shall commence on the
date hereof and shall continue (unless sooner terminated pursuant to the terms
hereof) for a period of
<PAGE>
ninety (90) days, or such shorter period as may be provided in Annex A with
respect to particular services described therein.
5. Partial Termination. Any and all of the services provided by Sellers
and its Affiliates hereunder are only terminable earlier than the period
specified in Annex A by Purchaser on 10 days' prior written notice to Seller.
Any such termination shall be final.
6. Assignment. This Agreement shall not be assignable in whole or in
part by any party hereto without the prior written consent of the other party
hereto, provided that Purchaser may assign its rights and obligations (i) as
collateral security to persons providing financing for the transactions
hereunder (ii) to any person acquiring, after the Closing, all or substantially
all of the business of Purchaser and (iii) to an Affiliate of Purchaser. No
assignment hereunder shall operate to release either party from its obligations
hereunder.
7. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York applicable to
agreements made and to be performed entirely within such State, without regard
to the conflicts of law principles of such State.
8. Limitation of Liability. Seller shall not be liable to Purchaser or
any third party for any special, consequential or exemplary damages (including
lost or anticipated revenues or profits relating to the same) arising from any
claim relating to this Agreement or any of the services provided hereunder,
whether such claim is based on warranty, contract, tort (including negligence or
strict liability) or otherwise, even if an authorized representative of Seller
is advised of the possibility or likelihood of the same.
9. Mediation. In the event a dispute arises between the parties arising
out of or relating to this Agreement or the transactions contemplated hereby,
prior to the commencement of any action, suit or proceeding relating thereto,
the parties shall submit to non-binding mediation.
10. Consent to Jurisdiction. Any action, suit or other proceeding
initiated by any Sellers or Purchaser against the other under or in connection
with this Agreement may be brought in the federal courts for the Southern
District of New York or any state court in New York County, New York, as the
party bringing such action, suit or proceeding shall elect, having jurisdiction
over the subject matter thereof. Purchase and Sellers hereby submit themselves
to the jurisdiction of any such court.
11. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
12. Notices. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if delivered personally
or sent by registered or certified mail, postage prepaid, addressed as follows:
2
<PAGE>
If the Seller:
International Home Foods, Inc.
1633 Littleton Road
Parsippany, New Jersey 07054
Attention: General Counsel
With a copy to:
Vinson & Elkins
3700 Trammell Crow Center
2001 Ross Avenue
Dallas, Texas 75201
Attention: Winston Oxley
If to Purchaser:
Roseland Distribution Company
c/o B&G Foods, Inc.
426 Eagle Rock Avenue
Roseland, New Jersey 07068
Attention: President
With a copy to:
Dechert, Price & Rhoads
30 Rockefeller Plaza
New York, NY 10112
Attention: Glyndwr P. Lobo
13. Modification, Nonwaiver, Severability. Neither this Agreement nor
any part hereof may be changed, altered or amended orally. Any modification must
be by written instrument signed by the parties. Failure by either party to
exercise promptly any right granted herein or to require strict performance of
any obligation imposed hereunder shall not be deemed a waiver of such right. If
any provision of this Agreement is held ineffective for any reason, the other
provisions shall remain effective.
14. Interpretation. The headings and captions contained in this
Agreement and in Annex A attached hereto are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement. The
use of the word "including" herein shall mean "including without limitation."
15. No Strict Construction. The language used in this Agreement shall
be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
person.
3
<PAGE>
16. Entire Agreement. This Agreement and the Asset Purchase Agreement
contain the entire agreement and understanding between the parties hereto with
respect to the subject matter hereof and supersede all prior agreements and
understandings, whether written or oral, relating to such subject matter.
17. Relationship of Parties. Except as specifically provided herein,
none of the parties shall act or represent or hold itself out as having
authority to act as an agent or partner of the other parties, or in any way bind
or commit the other party to any obligations. Nothing contained in this
Agreement shall be construed as creating a partnership, joint venture, agency,
trust or other association of any kind, each party being individually
responsible only for its obligations as set forth in this Agreement.
18. Force Majeure. If Sellers are prevented from complying, either
totally or in part, with any of the terms or provisions of this Agreement by
reason of fire, flood, storm, strike, law, order, proclamation, regulation,
ordinance, demand or requirement of any governmental authority, riot, war,
rebellion or other causes beyond the reasonable control of Sellers or other acts
of God, then upon written notice to Purchaser, the affected provisions and/or
other requirements of this Agreement shall be suspended during the period of
such disability and Sellers shall have no liability to Purchaser or any other
party in connection therewith. Sellers shall make all reasonable efforts to
remove such disability as soon as reasonably possible.
19. Notwithstanding anything to the contrary in this Agreement,
wherever under the terms of this Agreement Sellers are required to act in the
ordinary course and/or consistent with Sellers' past practice or levels, such
standards shall not apply to any acts of Sellers undertaken by either or both of
them in compliance with orders, requests or instructions given Sellers by
Purchaser pursuant to this Agreement, and Sellers shall not be liable to
Purchaser for not conforming to such standards regarding such acts.
4
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives as of the date and year first
set forth above.
INTERNATIONAL HOME ROSELAND DISTRIBUTION
FOODS, INC. CORPORATION
By: By:
------------------------------ ----------------------------------
Name: Name:
Title: Title:
M. POLANER, INC.
By:
------------------------------
Name:
Title:
5
<PAGE>
ANNEX A
TRANSITION SERVICES AGREEMENT
-----------------------------
SERVICES TO BE PROVIDED:
- -----------------------
The following services will be provided at Sellers' direct variable cost
(excluding fixed overhead) for a period of 90 days unless otherwise specified:
A. SALES:
1. Sellers will process orders and invoices that are combined with
International Home Foods' products for a period of one (1) week after
Closing. All orders received after that period, at Purchaser's request,
would be forwarded to Purchaser. Purchaser to be charged a flat $50 per
invoice.
2. Sellers will provide all sales, authorization, promotion, and spending
reports through the period of such transition services.
3. Sellers will forward to Purchaser copies of all price lists with Polaner
products.
4. Sellers will provide Purchaser's representatives an opportunity to meet
with Sellers' personnel to give Purchaser background information on all
sales plans, programs and commitments. Specifically, Sellers will make
their personnel in Sellers' Parsippany, NJ office available for three days
and personnel in other off-site locations available for half a day per
location. Purchaser will be charged $25 per hour.
B. DISTRIBUTION:
1. Sellers will ship all Polaner orders with all orders calling for delivery
of International Home Foods products for a period of one (1) week after the
Closing. Purchaser will be charged actual freight plus 10%.
2. Sellers will, upon three days prior notice, ship all other orders based on
Purchaser's direction. Purchaser will be charged actual freight plus 10%.
3. At Purchaser's direction, Sellers will transfer all Polaner inventory from
International Home Foods' distribution centers to B&G Food's distribution
centers. All shipments will be charged at actual freight plus 10% or, at
Purchaser's option, Purchaser may arrange (free of charge by Sellers) for
the transportation of the Polaner inventory to B&G Food's distribution
centers. Purchaser will ensure that current order fill rates will be
maintained.
4. Sellers will provide Purchaser's representatives an opportunity to meet
with Seller's personnel to discuss all distribution plans, programs and
commitments, on the same terms as set forth in A.4 above.
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C. MARKETING:
1. Sellers will manage as is done currently, for a period of thirty (30) days
following the Closing, all consumer calls to the 800 number as well as any
internet or mailed requests and/or complaints from customers. Sellers will
provide to Purchaser reports on these requests and complaints in the same
fashion as they would be provided to the marketing team at International
Home Foods.
2. After thirty (30) days following the Closing, Sellers will forward all
calls, mail and internet requests to Purchaser.
3. Coupons: All coupons received will be forwarded to Purchaser for
disposition. All relevant marking information, support materials, display
materials, point-of-purchase materials, consumer reports, and similar items
will be forwarded to Purchaser.
4. Sellers will provide Purchaser's representatives an opportunity to meet
with Seller's personnel to discuss all marketing plans, programs and
commitments on the same terms as set forth in A.4 above.
5. Sellers will continue to provide Purchaser with Nielsen data relating to
the Acquired Business at Sellers' cost for a period of three months
following the Closing. Sellers will cooperate with Purchaser in arranging
for Purchaser to obtain is own servicing contract from Nielson.
D. G&A:
Sellers will provide Purchaser with all appropriate reports and documentation as
is reasonably necessary or desirable to enable Purchaser to conduct the Acquired
Business following the Closing in a manner similar to which it has been
conducted by Sellers in the past.
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EXHIBIT E
FORM OF CO-PACKING AGREEMENT
This CO-PACKING AGREEMENT ("Agreement") is entered into as of the Effective Date
(as hereinafter defined), by and between B&G Foods, Inc., ("Company") a Delaware
corporation with offices at 426 Eagle Rock Avenue, Roseland, New Jersey 07068,
and International Home Foods, Inc. ("IHF"), a Delaware corporation with offices
at 1633 Littleton Road, Parsippany, New Jersey 07054.
WITNESSETH:
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WHEREAS, IHF has requested that the Company manufacture for IHF those
certain products ("Products") more particularly described on Exhibit "A"; and
WHEREAS, Company desires to manufacture the Products at the request of
IHF and for sale only to IHF.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
set forth below, the Company and IHF agree as follows:
1. Appointment. IHF hereby appoints Company as the exclusive
manufacturer of the Products solely for sale to, and upon the order of, IHF, and
Company hereby accepts such appointment, subject to the terms and conditions set
forth below.
2. Specifications. The Company will manufacture the Products
substantially in accordance with the product formulation specifications
("Specifications") set forth on Exhibit "B". Company shall provide IHF with
samples of each Product (as such Products are to appear when utilizing the raw
materials and production equipment to be used by Company in the manufacture of
the Products) for IHF's approval prior to Company commencing production under
the terms of this Agreement. All Products manufactured by the Company thereafter
will substantially conform to the Product samples. No change in the Products or
their method of production, including, without limitation, changes in raw
materials, formulation, equipment, processing conditions and production
location, may be made by the Company without IHF's prior written consent as
determined in its sole discretion. Upon thirty (30) days prior written notice to
the Company, IHF may change the Specifications. If any change in the
Specifications results in a change in the cost of manufacturing the Products, an
appropriate adjustment will be made to the Price (as hereinafter defined) to
reflect any resulting increase or decrease in Company's cost. In the event IHF
provides Company with the Specifications for any new product (subject to the
confidentiality restrictions contained in Section 17) which IHF desires Company
to manufacture, Company shall have fifteen (15) days following the receipt of
such specifications to provide IHF with written notice of its decision as to
whether or not to produce such new product for IHF. If Company decides to
produce such new product for IHF, such new product shall be deemed added to
Exhibit "A" and the Specifications for such Product shall be deemed added to and
included in the Specifications. Before commencing production of any new product,
Company and IHF will mutually agree on a Price. If the Company fails to provide
IHF
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with notice of its decision within such fifteen (15) day period, Company shall
be deemed to have decided not to produce such new product for IHF.
3. Packaging and Labeling Specifications: Printing and Forming Plates.
Company will package and label the Products substantially in accordance with the
packaging and labeling specifications ("P & L Specifications") set forth on
Exhibit "C". IHF will be responsible for securing, at IHF's cost and expense,
the approval if necessary of any governmental agency, as may be appropriate, for
such packaging and labeling and the Company, at its expense, will use its best
efforts to assist IHF in obtaining all appropriate governmental approvals. Upon
receipt, all packaging and labeling for the Products will be inspected by
Company. Any packaging or labeling not satisfying the P & L Specifications will
be withheld from use by the Company, and IHF will be notified and consulted with
respect to the disposition of such materials by the Company. Upon thirty (30)
days prior written notice, IHF may change the P & L Specifications. If a change
occurs in the P & L Specifications which results in an increase or decrease in
Company's manufacturing cost for any Product, an appropriate adjustment will be
made to the Price for such Product. IHF shall supply Company with all printing
and forming plates (all to be in reasonably good condition) which are necessary
for Company to perform its obligations under the terms of this Agreement.
Company agrees to maintain such printing and forming plates, replacing them from
time to time as may be necessary, and to return all of them to IHF upon
termination of this Agreement for any reason.
4. Quality Control Specifications. Company will manufacture the
Products substantially in accordance with the quality control specifications
("Quality Control Specifications") set forth on Exhibit "D". Subject to the
provisions in Section 18, IHF will have the right to inspect Company's
production facilities for the Products during the Company's normal business
hours, upon reasonable notice to Company and during such time as Company is
manufacturing the Products. In such event, IHF may examine only the facilities
utilized by Company in connection with the manufacture of the Products in order
to insure Company's substantial compliance with the specifications contained in
the exhibits to this Agreement.
5. Purchase Price: Terms of Payment. The purchase price ("Price") for
each Product to be charged by Company and paid by IHF to Company will be as set
forth on Exhibit "E". The Prices will be F.O.B. Company's plant. Payments by IHF
to Company for the Products will be due within thirty (30) days after receipt of
invoice for Products shipped. Company shall send invoices to IHF at the time the
product is shipped from Company's plant. If IHF fails to pay Company any amount
due hereunder and such failure continues for seven (7) or more days after IHF
receives written notice from Company thereof, Company may cease its manufacture
and production of the Products and stop making shipments to IHF; provided
however, IHF shall not be in default in its failure to pay if the aggregate
amount which is past due is not in excess of $10,000 or if the past due amount
relates to Products which IHF claims are not in substantial conformity with the
Product, P & L and Quality Control Specifications pursuant to the provisions of
Section 11.
6. Orders: Product Forecasts. Company will manufacture for IHF the mix
and quantity of Products specified in a purchase order ("Order"), and will
deliver the Products by the time and in
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accordance with the instructions contained in the Order. Each Order will contain
all information necessary for Company to efficiently complete the Order,
including, without limitation, the information specified in Section 7. The terms
and conditions of this Agreement will govern in the event of any conflicting
terms and conditions contained in an Order or in Company's confirmation or
acknowledgment of an Order. An Order must be received by Company at least thirty
(30) days prior to the date the Product must be shipped from Company's plant.
IHF will have the right to cancel all or any portion of an Order at any time
within seventy-two (72) hours after Company's receipt of such Order, without
liability to IHF. For planning purposes only, and not as a final order or
promise to purchase, upon the Effective Date, and thereafter on each anniversary
of the Effective Date, IHF will provide Company with an annual forecast of the
Products IHF anticipates it will require. Every three (3) months during the term
of this Agreement, IHF will provide Company with an updated forecast for the
next three (3) months, which will also be for planning purposes only, and will
not constitute a firm order or promise to purchase.
7. Shipping. All Products manufactured by Company for IHF will be
picked up by IHF at the Company plant, or will be shipped, at the sole cost and
expense of IHF, to the location(s), and in the manner and by the route and
carrier, designated by IHF in an Order. Risk of loss and damage to the Products
while at Company's plant will remain with Company. Risk of loss and damage to
the Products will pass to IHF upon delivery of the Products from Company to IHF,
its customers, agents, representatives or the carrier/shipping agent specified
by IHF, as the case may be. If a shipment is not accompanied by a packing slip,
IHF's or IHF's customer's, agent's or representative's count and/or weight will
be conclusive. If the shipment is accompanied by a packing slip, Company's count
and/or weight will be conclusive unless proven in error, provided Company
receives and provides IHF with a signed copy of the delivery receipt.
8. Product Warranties. Company warrants and represents to IHF that no
Product constituting, or being a part of, any shipment or other delivery
hereafter made to IHF will, at the time of such shipment or delivery, be: (i)
adulterated or misbranded within the meaning of the Federal Food, Drug and
Cosmetic Act, as amended and including its food and color additive amendments
(the "Act"), or within the meaning of any applicable state of local law in which
the definitions of adulteration and misbranding are substantially the same as
those contained in the Act, as the Act and such laws are constituted at the time
of such shipment or delivery; (ii) an article which may not, under the
provisions of Section 404 or 405 of the Act, be introduced into interstate
commerce; (iii) in violation of the requirements imposed upon Company by the
California Safe Drinking Water and Toxic Enforcement Act of 1986 ("California
Proposition 65"), and any other state or local laws and regulations imposing
requirements on Company which are substantially the same as California
Proposition 65, provided that such violation is not a result of Company
complying with the Specifications; or (iv) in violation of state or local laws
and regulations actually known to Company. This warranty will be continuing and
will survive delivery, inspection, acceptance and payment by IHF.
9. Company Warranties. The Company warrants and represents to IHF that,
as of the Effective Date, there are no pending or threatened lawsuits,
proceedings, claims, governmental actions, prior contracts or investigations,
which could in any way materially adversely affect the
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performance of its obligations under the terms of this Agreement, and that
during the term of this Agreement: (i) it will maintain, at its own cost and
expense, all licenses, permits and other authorizations necessary for the
manufacture of Products and the performance of its obligations under the terms
of this Agreement; provided, however, that to the extent reasonably requested by
Company, IHF will cooperate with the Company, at Company's expense, in acquiring
all such required licenses, permits and other authorizations; (ii) it will
comply with all applicable Federal, state and local laws and regulations in
carrying out its obligations hereunder; (iii) it will have good and marketable
title to the Products, free and clear of all encumbrances, and (iv) the Products
will substantially conform to the Specifications, P & L Specifications, Quality
Control Specifications and any other requirements set forth in this Agreement
and will be manufactured in accordance with good manufacturing practices. This
warranty will be continuing and will survive delivery, inspection, acceptance
and payment by IHF.
10. IHF Warranties. IHF represents and warrants that, as of the
Effective Date, there are no pending or threatened lawsuits, proceedings,
claims, governmental actions, prior contracts or investigations, which could in
any way materially adversely affect the performance of its obligations under the
terms of this Agreement, and that during the term of this Agreement: (i) it will
maintain, at its own cost and expense, all licenses, permits and other
authorizations necessary for the performance of its obligations hereunder;
provided, however, that to the extent reasonably requested by IHF, Company will
cooperate with IHF, at IHF's expense, in acquiring all such licenses, permits
and other authorizations; and (ii) it will comply with all applicable Federal,
state and local laws and regulations in carrying out its obligations under this
Agreement.
11. Non-Conforming Product. Any Products that do not substantially
conform to the Specifications, P & L Specifications and Quality Control
Specifications, or the warranties set forth in Sections 8 and 9 above,
respectively, may, in addition to IHF's other rights and remedies, be rejected
by IHF. Any products so rejected will be returned to the Company, together with
a reasonably detailed description of why the Products have been rejected, for
full credit or refund, as the case may be, including the shipping charges which
shall be paid by the Company, and Company will reimburse IHF for all reasonable
expenses of inspecting, unpacking, examining, repacking, storing and reshipping
any such rejected Product. Risk of Loss with respect to Products returned to
Company shall pass to Company upon delivery of the rejected products by IHF to
the carrier/shipping agent. All Products rejected by IHF and returned to the
Company will be replaced by the Company with conforming Products, and will be
shipped, at Company's risk and expense, to the location(s) designated by IHF.
The Price for any such replacement Products shall be the lesser of: (i) the
Price established as of the date of the Products were originally ordered by IHF
pursuant to Section 6, or (ii) the Price for the replacement Products as of the
date they are shipped by Company. If any Products consistently fail, in IHF's
reasonable judgment, to substantially confirm to the Specifications, P & L
Specifications and Quality Control Specifications, or the warranties set forth
in Section 8 and 9, and Company fails to correct such failure within thirty (30)
days following written notice from IHF, IHF may, in its sole discretion, elect
any or all of the following remedies: (i) cease purchasing any such Products
until such failure is corrected to IHF's reasonable satisfaction; (ii) require
Company to immediately discontinue manufacturing such Products until such time
as such failure is corrected to IHF's reasonable satisfaction; (iii) cancel any
Orders for such Products not yet shipped by Company;
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(iv) terminate this Agreement as to any or all of the Products, without penalty
or further obligation hereunder to Company; or (v) have any or all of the
Products manufactured by another party without penalty or further obligation to
Company hereunder.
12. Insurance. During the term of this Agreement, Company will maintain
policies of insurance for the following types of coverages in the amounts set
forth below:
(a) Worker's Compensation Insurance providing statutory benefits
and Employer's Liability Insurance with limits of not less than One
Million Dollars ($1,000,000)
(b) Comprehensive General Liability Insurance including
Contractual Liability. Fire Liability and Product Liability Coverages,
including bodily injury, property damage, personal injury with minimum
primary limits of not less than Five Million Dollars ($5,000,000)
combined limit per occurrence ("Underlying Insurance") plus Excess
Liability Insurance with limits of Five Million Dollars ($5,000,000)
(in excess of the Underlying Insurance) for each occurrence (in each
case, with the Broad Form Vendor's Endorsement).
Upon execution of this Agreement, the Company will provide IHF with a
certificate(s) of insurance from a financially sound insurance carrier(s)
acceptable to IHF evidencing the coverages described above. The policies for
Commercial General Liability Insurance and the Excess Liability Insurance shall
name IHF as an additional insured thereunder and all policies of insurance shall
provide for thirty (30) days prior written notice to IHF of any material change
or cancellation of coverage. Company will maintain the completed operations
coverage under its Commercial General Liability Insurance policy for not less
than two (2) years after the termination of this Agreement, and will pay all
premiums on all policies as and when the same become due.
13. (a) Company will indemnify, defend and hold IHF, its shareholders,
directors, officers, employees, agents, representatives and customers harmless
from and against any and all damages, liabilities, causes of action, claims,
suits, losses, costs and expenses (including reasonable attorneys' fees and
disbursements and any fines or penalties) (collectively, the "Liabilities"),
which IHF or such persons are required to pay or incur, arising out of or
relating to: (i) a breach by the Company of any of the warranties, promises,
covenants or other obligations on its part to be performed under this Agreement;
(ii) bodily injury (including death) to any person and/or property damage
resulting from the purchase, sale and/or use of the Products which results from
the negligence of the Company or a breach by the Company of any of the
warranties, promises, covenants or other obligations on its part to be performed
under this Agreement; (iii) any governmental enforcement proceedings against the
Company or IHF which results from the negligence of the Company or a breach by
the Company of any of the warranties, promises, covenants or other obligations
on its part to be performed under this Agreement; (iv) any governmental
enforcement proceeding against the Products which results from the negligence of
the Company or a breach by the Company of any of the warranties, promises,
covenants or other obligations on its part to be performed under this Agreement;
(v)
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any recall of the Products initiated by IHF or the Company, whether voluntarily
or by order of any court, which recall results from the negligence of the
Company or a breach by the Company of any of the warranties, promises, covenants
or other obligations on its part to be performed under this Agreement; and (vi)
any alleged patent infringement claim brought by a third party against IHF
relating to the manufacture of the Products by the Company. Except as otherwise
provided in this Agreement, the Company will promptly assume full and complete
responsibility for the investigation, defense, compromise and settlement of any
claim, suit or action arising out of, or relating or incidental to, the matters
enumerated in this subsection (a) following written notice of such from IHF, and
IHF will cooperate with the Company, at the Company's expense, in connection
therewith. Notwithstanding the foregoing, IHF reserves the right, in its sole
discretion and at its option and its sole expense, to participate in, or to
defend or prosecute, through its own counsel, any such claim, suit or action.
(b) IHF will indemnify, defend and hold the Company, its
shareholders, directors, officers, , employees, agents, and representatives,
harmless from and against any and all Liabilities which Company or such persons
are required to pay or incur, arising out of or relating to: (i) a breach by IHF
of any of the warranties, promises, covenants or other obligations on its part
to be performed under this Agreement; (ii) bodily injury (including death) to
any person and/or property damage resulting from the purchase, distribution or
sale of the Products which results from the negligence of IHF or a breach by IHF
of any of the warranties, promises, covenants or other obligations on its part
to be performed under this Agreement; (iii) any governmental enforcement
proceedings against the Company or IHF which result from the negligence of the
Company or a breach by the Company of any of the warranties, promises, covenants
or other obligations on its part to be preformed under this Agreement: (iv) any
alleged intellectual property infringement claim brought by a third party
against the Company pursuant to any state or federal trademark law. Except as
otherwise provided herein, IHF will promptly assume full and complete
responsibility for the investigation, defense, compromise and settlement of any
claim, suit or action arising out of, or relating or incidental to, the matters
enumerated in this subsection (b) following written notice of such from the
Company, and the Company will cooperate with IHF, at IHF's expense, in
connection therewith. Notwithstanding the foregoing, the Company reserves the
right, in its sole discretion and at its option and its sole expense, to
participate in, or to defend or prosecute, through its own counsel, any such
claim, suit or action.
14. Customer Complaints. Without affecting any of its rights or
remedies under this Agreement, IHF may, in its sole discretion and at its sole
expense, investigate customer complaints concerning the Products and shall have
the authority to settle such complaints, provided the dollar mount thereof does
not exceed five hundred dollars ($500.00) in each instance or $5,000.00 in the
aggregate for all complaints during any calendar year during the term of this
Agreement. To the extent the dollar amount required to settle such complaints
exceeds $5,000 in the aggregate for all complaints during a calendar year, IHF
shall obtain the prior consent of the Company before reaching settlement, which
consent shall not be unreasonably withheld. The Company will reimburse IHF, upon
demand and after IHF has furnished the Company with a reasonably detailed
description of any such complaints and settlements, for any settlements made in
accordance with this Section. If the dollar amount of any
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complaint exceeds five hundred dollars ($500.00), IHF shall tender such
complaint to the Company for handling by the Company in accordance with the
indemnification provisions of Section 13(a), unless otherwise mutually agreed
upon by IHF and Company.
15. Product Recall. Recall of Product(s) manufactured under this
agreement by IHF shall be effected after consultation with the Company. If a
recall of any Products is initiated by IHF or the Company, either voluntarily or
by order of any court, the Company will assist IHF in developing a recall
strategy and will work with IHF and all applicable governmental agencies in
monitoring the recall operation and in preparing such reports as may be required
in connection therewith. In such event, the Company will immediately issue a
full credit or refund, as the case may be, excluding the shipping charges
therefor which shall be paid by the Company and will promptly replace such
Products with conforming Products, and ship the same, at the Company's risk and
expense, to the location(s) designated by IHF; provided, however, the
obligations imposed on Company by this sentence shall not apply in the event
such recall does not result from the negligence of the Company. The Price for
any such replacement Products shall be the lesser of: (i) the Price established
as of the date the Products were originally ordered by IHF pursuant to Section
6, or (ii) the Price for the replacement Products as of the date they are
shipped by the Company. The Company will provide IHF with written instructions
regarding the disposition of all Products which have been recalled, and any
costs incurred for such will be borne by the Company.
16. Trademarks. Nothing contained in this Agreement will be deemed to
give to or create in the Company any right or interest in IHF's trademarks,
tradenames, logos, insignias, slogans or other commercial symbols (collectively,
"Trademarks") which will appear on the Products and/or the packaging and
labeling for the Products and the Company agrees not to contest IHF's rights or
interests therein. Except as provided in this Agreement (or upon the receipt of
written consent from IHF), the Company shall not use or authorize the use of the
Trademarks, or adopt or use any trademarks, tradenames, logos, insignias,
slogans or other commercial symbols confusingly similar to the Trademarks or any
package or label that colorably resembles those used in connection with the
Products. In the event Company breaches this covenant, IHF may, in addition to
its other rights and remedies, exercise its common law and statutory rights
against Company for infringement of the Trademarks.
17. Company Confidentiality. The Company shall, and shall use all
reasonable effort to cause each of its affiliates and officers, directors,
employees and advisors to, hold all non-public information disclosed to such
person by reason of this Agreement confidential and will not disclose any of
such information to any person unless legally required to disclose such
information; provided, however, that to the extent that any of them may become
so legally compelled they may only disclose such information if they shall first
have used reasonable efforts to obtain, and if practicable, shall have afforded
the other party the opportunity to obtain, an appropriate protective order or
other satisfactory assurance of confidential treatment for the information
required to be so disclosed. This Section 17 shall survive any termination or
expiration of this Agreement.
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18. IHF's Confidentiality. IHF hereby acknowledges that pursuant to its
rights under this Agreement, it will have the opportunity to review and inspect
the production facilities and production methods used by the Company in the
manufacture of the Products (collectively, "Company Secrets") which are
Company's exclusive and proprietary property. For this and other reasons, IHF
agrees that, during the term of this Agreement and after the termination hereof
for any reason, the Company Secrets will be held in confidence by IHF and will
not be disclosed to any person without the Company's prior written consent,
except to those employees, agents and representatives of IHF who need to know
such Company Secrets in order for IHF to perform its obligations under this
Agreement. The covenants contained in this Section will not apply to any Company
Secret which (i) is in the public domain or comes into the public domain through
no fault of IHF, (ii) is disclosed to IHF by a third party under no obligation
of confidentiality to the Company, or (iii) which is required to be disclosed by
statute, regulation, discovery in connection with litigation or other dispute
resolution, or other legal requirement.
19. Company's Non-Competition. In recognition of the IHF Information
disclosed or disseminated to the Company under this Agreement, the Company
hereby covenants and agrees that it will not, during the term of this Agreement
or for six (6) months after the termination hereof for any reason, manufacture,
distribute or sell, or cause to manufacture, distribute or sell, the Products or
any product competitive to the Products directly or indirectly to any customer
of IHF in Mexico. In addition, the Company agrees that for a period of one year
after termination of the Agreement for any reason it will not manufacture for
sale within Mexico a product substantially similar or directly competitive with
any of the Products covered by this Agreement. In the event of a breach of this
covenant, IHF will, without affecting any other rights or remedies it may have,
at law or in equity, be entitled to injunctive relief. If this covenant is
adjudicated by a court of competent jurisdiction to be invalid or unenforceable
because of the duration or area covered, the court making such determination
will have the power to reduce the duration and/or area, and in its reduced form,
such covenant will then be enforceable and will be enforced.
20. Term: Renewal Option. This Agreement will become effective on the
date the last of IHF or the Company has fully executed this Agreement
("Effective Date") and will remain in full force and effect for a period of two
(2) years from the Effective Date (the "Initial Term"), unless earlier
terminated as provided herein. Provided IHF is not at the time in default, IHF
will have the right to renew this Agreement, upon the same terms and conditions
as are in effect at the time of such renewal (subject to price adjustments as
mutually agreed upon by IHF and the Company), for two (2) consecutive renewal
terms of two (2) years each (the "Renewal Terms") by the delivery of one hundred
twenty (120) days advance written notice thereof to Company prior to the
expiration of the Initial Term or any Renewal Term, as the case may be;
provided, however, the Company, in the Company's sole discretion, shall have the
right to reject IHF's election to renew this Agreement by delivering written
notice thereof to IHF within thirty (30) days after Company's receipt of IHF's
notice to renew this Agreement. If Company fails to give timely written notice
of its rejection of IHF's election offer to renew this Agreement, such election
will be deemed accepted by the Company on the thirty-first (31st) day after the
Company's receipt of IHF's notice.
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21. Early Termination. This Agreement may be terminated by either party
at any time during the term hereof upon the occurrence of any of the following
events (collectively, "Events of Default"): (i) the other party becomes
insolvent, is adjudicated as bankrupt, seeks relief under any Federal or state
bankruptcy laws, has a receiver appointed for its assets or makes an assignment
for the benefit of its creditors, (ii) the other party fails to perform any of
its obligations under this Agreement, and, except as provided in subsection 21
(iii) below, fails to remedy such failure within thirty (30) days after written
notice thereof from the affected party, or, if such default cannot be reasonably
cured within thirty (30) days, commence to remedy such failure within such
30-day period and diligently pursue the same until corrected, (iii) a default by
IHF in the payment of any monetary obligation payable to the Company hereunder
and such default continues for thirty (30) days after the Company gives IHF
written notice of such nonpayment; provided however, IHF shall not be in default
in its failure to pay if the aggregate amount which is past due is not in excess
of $10,000 or if the past due amount relates to Products which IHF claims are
not in substantial conformity with the Specifications, P & L Specifications and
the Quality Control Specifications pursuant to the provisions of Section 11,
(iv) if the Company sells all or substantially all of its assets or stock to a
third party unless the purchaser of such assets or stock is a financially sound
person or entity as reasonably determined by IHF and such person or entity
assumes in writing the Company's obligations under this Agreement, or (v) if any
of the unforeseeable incidents described in Section 23 below occurs and
continues for a period of thirty (30) days. Upon the occurrence of an Event of
Default, the party electing to terminate this Agreement will give written notice
of its election to the other party and such termination will become effective on
the date specified in such notice. Any such termination by an electing party
will be without prejudice to any rights or remedies the electing party may have,
at law or in equity, or under this Agreement.
22. Duties Upon Termination. If this Agreement is terminated for any
reason: (i) all continuing duties and obligations of both parties, as set forth
herein, will continue notwithstanding such termination; (ii) all other rights
and privileges granted to the Company and IHF hereunder will terminate and the
Company will not make use of any of the Trademarks, (iii) the Company will
promptly return to IHF, at IHF's cost, any unused packaging and labeling
supplies on hand at the Company's plant at the time of the termination of this
Agreement, together with any printing and forming plates used in connection with
the manufacture of the Products, and IHF will purchase such supplies from the
Company, at the Company's cost and upon the terms provided under this Agreement
with respect to the purchase by IHF of the Products; provided, however, the
quantity of such supplies does not exceed the quantity needed to satisfy the two
(2) month forecast of Product purchases provided by IHF to the Company, as
described in Section 6 above; and (iv) the Company will promptly return to IHF,
at IHF's cost, any Products on hand at the Company's plant at the time of
termination of this Agreement, and IHF will purchase such Products from the
Company, at the Prices and upon such terms as are provided under this Agreement,
provided, however, the quantity thereof does not exceed the greater of (a) any
Orders on hand at the time of such termination or (b) 25% of the quantity
specified in the most recent two (2) month forecast of Product purchases
provided by IHF to the Company, as described in Section 6 above.
9 of 20
<PAGE>
23. Force Majeure. Neither party will be liable to the other for its
failure to comply with the terms and conditions of this Agreement if such
failure is caused by fire, flood, accident or other Act of God, war, riot,
insurrection, civil disorder, governmental regulation, action or embargo,
strike, labor unrest or other labor dispute, not resulting from the negligence
of the affected party, the party invoking the provisions of this Section 23 will
give the other party prompt notice in writing of the occurrence of such
incident, and will take all reasonable measures to eliminate its cause and
recommence the performance of its obligations as quickly as possible. Each party
agrees to give the other party notice of any potential or threatened labor
unrest or other labor dispute, which could have a material adverse effect on the
performance of its obligations under this Agreement. If the Company is excused
from its performance under this Agreement as a result of any of the causes
described in this Section 23, IHF may, during the time such performance by
Company is excused, obtain the Products from any other supplier or manufacturer.
If the Company is unable to manufacture the Products at its facility in Hurlock,
Maryland for any reason, the Company will use its best efforts to manufacture
the Products at an alternate facility, provided that the Company will not be
obligated to use its alternate facility (if any) to manufacture the Products to
the extent such use would have a material adverse effect on any of its
obligations to any other party as of the date its performance is excused
hereunder, and further provided, that if the facility can be used to manufacture
the Product, the Company shall only be obligated to do so in a manner which
permits it to satisfy the production requirements for the customers serviced by
such facility on a proportionately equal basis consistent with such customer's
prior demand. If IHF is excused form its performance hereunder as a result of
any of the causes described in this Section 23, upon notice to the Company, IHF
may postpone delivery of any Products manufactured or in the process of being
manufactured by the Company, or cancel all or any part of any Order for which
the Company has not yet purchased the raw materials for manufacture or otherwise
commenced or completed the manufacturing process, to the extent IHF postpones
delivery of any Products under the foregoing sentence, IHF shall reimburse the
Company for all reasonable expenses incurred by the Company in connection
therewith, including, without limitation, all storage costs and costs to rework
any of the Products. The time for performance hereunder will be extended for a
period equal to the duration of such incident, unless this Agreement is
terminated pursuant to the provisions of Section 21 above.
24. Notices. All notices, requests, demands and other communications
required or permitted under this Agreement will be in writing and may be
delivered in person (by hand, messenger or other conformable form of delivery),
or be sent by registered or certified mail, return receipt requested, postage
prepaid, addressed as follows, or by Federal Express or other nationally
recognized overnight courier service, addressed as follows, or by facsimile
transmission, to the following respective numbers, followed by a copy being
delivered in person, by mall, or by overnight courier as specified herein:
To IHF at:
International Home Foods, Inc.
1633 Littleton Road
Parsippany, NJ 07974
ATTN: Contract Management Office
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<PAGE>
with a copy to:
International Home Foods, Inc.
1633 Littleton Road
Parsippany, NJ 07974
ATTN: General Counsels Office
To Company at:
Roseland Distribution Company
c/o B&G Foods, Inc.
426 Eagle Rock Avenue
Roseland, New Jersey 07068
Attention: President
with a copy to:
Dechert, Price & Rhoads
30 Rockefeller Plaza
New York, New York 10112
Attention: Glyndwr P. Lobo
Either party may, by written notice to the other, specify a different address or
numbers for notice purposes. Any notice sent to the party to whom it is
addressed in accordance with this Section 24 will be deemed to have been given
when received, if personally delivered; if sent by registered or certified mail,
return receipt requested, upon the date of delivery shown on the receipt card,
or if no date is shown, the postmark thereon; or if sent via Federal Express or
other nationally recognized overnight courier, one (1) business day after
deposit with such overnight courier; or if sent by facsimile transmission, on
the day on which it is sent, if receipt of such transmission is confirmed by
telephone. If notice is received on a Saturday, Sunday or legal holiday, it will
be deemed to have been given and received on the next following business day.
25. Public Disclosure. During the term of this Agreement and after
termination, neither party shall, without first obtaining the written consent of
the other party, in any manner advertise, publicize, publish or otherwise draw
attention to the facts or circumstances surrounding this
11 of 20
<PAGE>
Agreement, or disclose any of the details connected with this Agreement to any
third party, except as required in the performance of its obligations under this
Agreement.
26. Independent Contractors. Nothing contained in this Agreement is to
be construed as creating an agency, joint venture, partnership or any other
relationship between IHF and the Company and neither party shall be deemed to be
the agent, servant, employee, partner, or joint venturer of the other party. The
Company will at all times be deemed to be an independent contractor of IHF,
solely responsible for the manner by and the form in which it fulfills its
obligations under this Agreement. Except as otherwise provided herein, neither
party will have the power or authority to act on behalf of or in the name of the
other party, or to bind the other party, either directly or indirectly, in any
manner or thing, without the affected party's prior written consent.
27. Assignment. Except as otherwise provided in Section 21(iv) and (v),
this Agreement and any rights granted hereunder may not be assigned, pledged,
sublicensed, transferred or otherwise disposed of, in whole or in part, either
voluntarily, by operation of law or otherwise, by either party unless with the
prior written consent of the other party, which notwithstanding anything herein
to the contrary, may be withheld by either party in such parties' sole and
absolute discretion. Any attempt by either party to make any such disposition of
this Agreement without the prior written consent of the other party or
consistent with the provisions of Section 21 (iv) or (v) will be void and may be
treated as grounds for termination of this Agreement.
28. Consent. Except as expressly provided in this Agreement, if either
party shall request the consent of the other party pursuant to the terms of this
Agreement, the party receiving such request shall not unreasonably withhold its
consent. Except as otherwise provided herein, any party receiving a request for
consent shall respond to such request as soon as is reasonably possible.
29. Severability. The invalidity of unenforceability of all or any part
of any provision of this Agreement will not render invalid or unenforceable any
other provision of this Agreement. If any provision of this Agreement is
rendered invalid or unenforceable, such provision will be interpreted and
enforced only to the extent that the provision is valid and enforceable.
30. Binding Effect. This Agreement shall inure to the benefit of the
parties hereto and shall be binding upon the parties hereto and their respective
successors and permitted assigns.
31. Governing Law. This Agreement will be construed as to both validity
and performance and will be enforced in accordance with and governed by the laws
and decisions of the State of New Jersey. The parties hereby consent to the
jurisdiction of the Federal or state courts in the State of New Jersey for the
adjudication of all matters arising or relating to this Agreement. The parties
hereby consent that venue of any action brought under this Agreement shall be in
New Jersey.
32. Headings and Sections. The use of headings and sections in this
Agreement is for convenience and reference purposes only, and is not intended to
create a severable contract, and
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<PAGE>
such headings shall not modify, limit, expand or affect this Agreement in any
manner whatsoever. Wherever required by the context, any gender shall include
any other gender, the singular shall include the plural, and the plural shall
include the singular.
33. Entire Agreement. This Agreement, including the exhibits,
constitutes the entire agreement of the parties, and supersedes all prior
agreements and understandings, oral and written, between the parties hereto with
respect to the subject matter.
34. Modification. This Agreement may not be modified, changed, amended,
discharged or terminated, nor may any provision be waived, except by a writing
signed by duly authorized representatives of both IHF and the Company.
35. Non-Waiver. The failure of either party to insist, in any one or
more instances, upon performance of any provision of this Agreement, or to take
advantage of any of its rights, will not be construed as a waiver of any such
provision or the relinquishment of any such rights, and such provision and such
rights will continue and remain in full force and effect. No single or partial
exercise by either party or any right or remedy hereunder will preclude the
further exercise thereof or the exercise of any other right or remedy.
36. Time is of the Essence. TIME IS OF THE ESSENCE IN THE PERFORMANCE
OF ALL TERMS AND CONDITIONS HEREIN SET FORTH TO BE PERFORMED. If any date for
the performance of any obligation under this Agreement falls on a date which is
a Saturday, Sunday, or legal holiday, the date for the performance of such
obligation shall be extended until the first date thereafter which is not a
Saturday, Sunday, or legal holiday.
37. Construction. The parties acknowledge that each party and, if it so
chooses, its counsel have reviewed and revised this Agreement and that the
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of this Agreement or any amendments or exhibits to this Agreement.
38. Counterparts. This Agreement is executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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<PAGE>
IN WITNESS WHEREOF, this Agreement is executed to be effective as of the
Effective Date.
B&G FOODS, INC. INTERNATIONAL
HOME FOODS, INC:
By:
--------------------------- ----------------------------
- ------------------------------- ----------------------------
Title Date Title Date
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<PAGE>
EXHIBIT "A"
Description of Product(s):
(1) Chopped garlic in water-based formulation packed in a 10 ounce
(260 gram) glass jar; jars packed 12 to a case.
15 of 20
<PAGE>
EXHIBIT "B"
Formulation specifications:
(1) Chopped garlic packed in a formulation of water, phosphoric acid,
xantana gum and guar gum. Product is identical to that packed
under the pre-existing co-packing agreement (extended May, 1998)
by and between IHF and the Company for the Productos Del Monte
labeled 260 gram (10 ounce) "Ajo Picado" product.
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<PAGE>
EXHIBIT "C"
Packaging and labeling specifications:
1) Chopped garlic, 10 ounce (260 gram) glass jar, labeled in
conformance with label and lid samples included as Exhibits C1
through C4.
17 of 20
<PAGE>
EXHIBIT "D"
Quality control specifications:
(1) All ingredients used in the formulation of product(s) under this
agreement shall be of the highest quality reasonably available.
(2) Manufacture of the product(s) subject to this agreement shall be
performed in a manner substantially identical to the manufacture
of the corresponding product(s) under the pre-existing co-packing
agreement by and between IHF and the Company.
(3) Product(s) contaminated with any particulate or liquid, in any
other way adulterated, or not in compliance with the provisions of
Paragraph 8 of this Agreement - "Product Warranties," is
specifically deemed non-conforming product(s).
(4) Unless IHF has agreed to modification(s) of Product(s)
formulation, product(s) whose formulation or appearance is
materially different from the corresponding product(s)
manufactured under the pre-existing co-packing agreement by and
between IHF and the Company shall be deemed non-conforming
product(s).
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<PAGE>
EXHIBIT "E"
Pricing:
(1) Chopped garlic, 10 ounce (260 gram) jar; packed 12 to a case;
standard price for the period beginning as of the Effective Date
of this Agreement and ending one year from the Effective Date of
this Agreement: $7.78 per case.
Pricing adjustment(s) for subsequent one-year period(s):
Adjustment to the standard price for the period beginning as of
the Effective Date of this Agreement and ending one year from the
Effective Date of this Agreement (the "benchmark period") shall
reflect and be equal to the net increase or decrease, relative to
the benchmark period, in the actual cost to the Company of certain
raw materials (garlic, glass jars, and metal jar lids, inclusive)
attributable to a case of product. Parties shall use their good
faith efforts to set a date as of which the aforementioned net
increase(s) and/or decrease(s) is determined.
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<PAGE>
EXHIBIT "F"
Raw materials, ingredients, and product(s) inspection specifications:
(1) Chopped garlic, 10 ounce (260 gram) jar; packed 12 to a case: raw
materials, ingredients, and finished product specifications
identical to that packed under the pre-existing co-packing
agreement (extended May, 1998) by and between IHF and the Company
for the Productos Del Monte labeled 260 gram (10 ounce) "Ajo
Picado" product.
20 of 20
EXHIBIT 2
TRANSITION SERVICES AGREEMENT
This TRANSITION SERVICES AGREEMENT (this "Agreement") is made as of
February 5, 1999, by and between International Home Foods, Inc., a Delaware
corporation ("Parent"), and M. Polaner, Inc. a Delaware corporation and wholly
owned subsidiary of Parent (collectively with Parent, the "Sellers"), and
Roseland Distribution Company, a Delaware corporation ("Purchaser").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Asset Purchase Agreement, dated as of
January 12, 1999, between Sellers and Purchaser (the "Asset Purchase
Agreement"), Sellers have agreed to sell to Purchaser and Purchaser has agreed
to Purchase from Seller the Purchased Assets (as defined in the Asset Purchase
Agreement).
WHEREAS, in connection therewith, Purchaser and Sellers desire that
Sellers provide Purchaser with certain transition services as set forth herein;
and
WHEREAS, capitalized terms used herein and not otherwise defined herein
have the meanings given to such terms in the Asset Purchase Agreement;
NOW, THEREFORE, in consideration of the premises and covenants set
forth herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Sellers and Purchaser agree as
follows:
1. Transition Services. During the term of this Agreement as set forth
in Section 4 below (the "Transition Period"), Sellers shall provide, or cause
its Affiliates to provide to Purchaser (or, if requested by Purchaser, to
Affiliates of Purchaser), as requested by Purchaser, the services set forth on
Annex A hereto in the manner and at a relative level of service consistent in
all material respects with that provided by Seller or its Affiliates to the
Acquired Business immediately prior to the date hereof and levels substantially
consistent with the levels provided during the year ended December 31, 1998.
2. Billing and Payment. Sellers shall invoice Purchaser for services
provided under this Agreement at the end of each fiscal month of Sellers during
the transition period. Such invoices shall set forth in reasonable detail the
services provided hereunder during such month and the charges therefor. All
invoices shall be paid by wire transfer not later than 30 days following receipt
by Purchaser of Seller's invoice in accordance with the instructions provided by
Sellers (in writing to Purchaser).
3. Validity of Documents. The parties hereto shall be entitled to rely
upon the genuineness, validity or truthfulness of any document, instrument or
other writing presented in connection with this Agreement unless such document,
instrument or other writing appears on its face to be fraudulent, false or
forged.
<PAGE>
4. Term of Agreement. The term of this Agreement shall commence on the
date hereof and shall continue (unless sooner terminated pursuant to the terms
hereof) for a period of ninety (90) days, or such shorter period as may be
provided in Annex A with respect to particular services described therein.
5. Partial Termination. Any and all of the services provided by Sellers
and its Affiliates hereunder are only terminable earlier than the period
specified in Annex A by Purchaser on 10 days' prior written notice to Seller.
Any such termination shall be final.
6. Assignment. This Agreement shall not be assignable in whole or in
part by any party hereto without the prior written consent of the other party
hereto, provided that Purchaser may assign its rights and obligations (i) as
collateral security to persons providing financing for the transactions
hereunder (ii) to any person acquiring, after the Closing, all or substantially
all of the business of Purchaser and (iii) to an Affiliate of Purchaser. No
assignment hereunder shall operate to release either party from its obligations
hereunder.
7. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York applicable to
agreements made and to be performed entirely within such State, without regard
to the conflicts of law principles of such State.
8. Limitation of Liability. Seller shall not be liable to Purchaser or
any third party for any special, consequential or exemplary damages (including
lost or anticipated revenues or profits relating to the same) arising from any
claim relating to this Agreement or any of the services provided hereunder,
whether such claim is based on warranty, contract, tort (including negligence or
strict liability) or otherwise, even if an authorized representative of Seller
is advised of the possibility or likelihood of the same.
9. Mediation. In the event a dispute arises between the parties arising
out of or relating to this Agreement or the transactions contemplated hereby,
prior to the commencement of any action, suit or proceeding relating thereto,
the parties shall submit to non-binding mediation.
10. Consent to Jurisdiction. Any action, suit or other proceeding
initiated by any Sellers or Purchaser against the other under or in connection
with this Agreement may be brought in the federal courts for the Southern
District of New York or any state court in New York County, New York, as the
party bringing such action, suit or proceeding shall elect, having jurisdiction
over the subject matter thereof. Purchase and Sellers hereby submit themselves
to the jurisdiction of any such court.
11. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
2
<PAGE>
12. Notices. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if delivered personally
or sent by registered or certified mail, postage prepaid, addressed as follows:
If the Seller:
International Home Foods, Inc.
1633 Littleton Road
Parsippany, New Jersey 07054
Attention: General Counsel
With a copy to:
Vinson & Elkins
3700 Trammell Crow Center
2001 Ross Avenue
Dallas, Texas 75201
Attention: Winston Oxley
If to Purchaser:
Roseland Distribution Company
c/o B&G Foods, Inc.
426 Eagle Rock Avenue
Roseland, New Jersey 07068
Attention: President
With a copy to:
Dechert, Price & Rhoads
30 Rockefeller Plaza
New York, NY 10112
Attention: Glyndwr P. Lobo
13. Modification, Nonwaiver, Severability. Neither this Agreement nor
any part hereof may be changed, altered or amended orally. Any modification must
be by written instrument signed by the parties. Failure by either party to
exercise promptly any right granted herein or to require strict performance of
any obligation imposed hereunder shall not be deemed a waiver of such right. If
any provision of this Agreement is held ineffective for any reason, the other
provisions shall remain effective.
14. Interpretation. The headings and captions contained in this
Agreement and in Annex A attached hereto are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement. The
use of the word "including" herein shall mean "including without limitation."
3
<PAGE>
15. No Strict Construction. The language used in this Agreement shall
be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
person.
16. Entire Agreement. This Agreement and the Asset Purchase Agreement
contain the entire agreement and understanding between the parties hereto with
respect to the subject matter hereof and supersede all prior agreements and
understandings, whether written or oral, relating to such subject matter.
17. Relationship of Parties. Except as specifically provided herein,
none of the parties shall act or represent or hold itself out as having
authority to act as an agent or partner of the other parties, or in any way bind
or commit the other party to any obligations. Nothing contained in this
Agreement shall be construed as creating a partnership, joint venture, agency,
trust or other association of any kind, each party being individually
responsible only for its obligations as set forth in this Agreement.
18. Force Majeure. If Sellers are prevented from complying, either
totally or in part, with any of the terms or provisions of this Agreement by
reason of fire, flood, storm, strike, law, order, proclamation, regulation,
ordinance, demand or requirement of any governmental authority, riot, war,
rebellion or other causes beyond the reasonable control of Sellers or other acts
of God, then upon written notice to Purchaser, the affected provisions and/or
other requirements of this Agreement shall be suspended during the period of
such disability and Sellers shall have no liability to Purchaser or any other
party in connection therewith. Sellers shall make all reasonable efforts to
remove such disability as soon as reasonably possible.
19. Notwithstanding anything to the contrary in this Agreement,
wherever under the terms of this Agreement Sellers are required to act in the
ordinary course and/or consistent with Sellers' past practice or levels, such
standards shall not apply to any acts of Sellers undertaken by either or both of
them in compliance with orders, requests or instructions given Sellers by
Purchaser pursuant to this Agreement, and Sellers shall not be liable to
Purchaser for not conforming to such standards regarding such acts.
4
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives as of the date and year first
set forth above.
INTERNATIONAL HOME ROSELAND DISTRIBUTION
FOODS, INC. CORPORATION
By: /S/James Krause By: /S/David Wenner
--------------------------- ---------------------------
James Krause David Wenner
Vice President President
M. POLANER, INC.
By: /S/ James Krause
---------------------------
James Krause
Vice President
5
<PAGE>
ANNEX A
TRANSITION SERVICES AGREEMENT
-----------------------------
SERVICES TO BE PROVIDED:
The following services will be provided at Sellers' direct variable cost
(excluding fixed overhead) for a period of 90 days unless otherwise specified:
A. SALES:
1. Sellers will process orders and invoices that are combined with
International Home Foods' products for a period of one (1) week after
Closing. All orders received after that period, at Purchaser's request,
would be forwarded to Purchaser. Purchaser to be charged a flat $50 per
invoice.
2. Sellers will provide all sales, authorization, promotion, and spending
reports through the period of such transition services.
3. Sellers will forward to Purchaser copies of all price lists with
Polaner products.
4. Sellers will provide Purchaser's representatives an opportunity to meet
with Sellers' personnel to give Purchaser background information on all
sales plans, programs and commitments. Specifically, Sellers will make
their personnel in Sellers' Parsippany, NJ office available for three
days and personnel in other off-site locations available for half a day
per location. Purchaser will be charged $25 per hour.
B. DISTRIBUTION:
1. Sellers will ship all Polaner orders with all orders calling for
delivery of International Home Foods products for a period of one (1)
week after the Closing. Purchaser will be charged actual freight plus
10%.
2. Sellers will, upon three days prior notice, ship all other orders based
on Purchaser's direction. Purchaser will be charged actual freight plus
10%.
3. At Purchaser's direction, Sellers will transfer all Polaner inventory
from International Home Foods' distribution centers to B&G Food's
distribution centers. All shipments will be charged at actual freight
plus 10% or, at Purchaser's option, Purchaser may arrange (free of
charge by Sellers) for the transportation of the Polaner inventory to
B&G Food's distribution centers. Purchaser will ensure that current
order fill rates will be maintained.
4. Sellers will provide Purchaser's representatives an opportunity to meet
with Seller's personnel to discuss all distribution plans, programs and
commitments, on the same terms as set forth in A.4 above.
6
<PAGE>
C. MARKETING:
1. Sellers will manage as is done currently, for a period of thirty (30)
days following the Closing, all consumer calls to the 800 number as
well as any internet or mailed requests and/or complaints from
customers. Sellers will provide to Purchaser reports on these requests
and complaints in the same fashion as they would be provided to the
marketing team at International Home Foods.
2. After thirty (30) days following the Closing, Sellers will forward all
calls, mail and internet requests to Purchaser.
3. Coupons: All coupons received will be forwarded to Purchaser for
disposition. All relevant marking information, support materials,
display materials, point-of-purchase materials, consumer reports, and
similar items will be forwarded to Purchaser.
4. Sellers will provide Purchaser's representatives an opportunity to meet
with Seller's personnel to discuss all marketing plans, programs and
commitments on the same terms as set forth in A.4 above.
5. Sellers will continue to provide Purchaser with Nielsen data relating
to the Acquired Business at Sellers' cost for a period of three months
following the Closing. Sellers will cooperate with Purchaser in
arranging for Purchaser to obtain is own servicing contract from
Nielson.
D. G&A:
Sellers will provide Purchaser with all appropriate reports and documentation as
is reasonably necessary or desirable to enable Purchaser to conduct the Acquired
Business following the Closing in a manner similar to which it has been
conducted by Sellers in the past.
7
EXHIBIT 3
GUARANTY
Guaranty dated as of January 12, 1999 (this "Guaranty"). In
consideration of International Home Foods, Inc. and M. Polaner, Inc.
(collectively, "Sellers") entering into the Asset Purchase Agreement (the "Asset
Purchase Agreement") of even date herewith between Roseland Distribution
Company, a Delaware corporation ("Purchaser") and a wholly-owned subsidiary of
the undersigned Guarantor (the "Guarantor"), and Sellers, the undersigned
Guarantor irrevocably, absolutely, and unconditionally:
1. Guaranties to Sellers the due and punctual payment, observance
and performance by Purchaser of all of Purchaser's liabilities and
obligations, whether present or future, express or implied, actual or
contingent, under or arising out of the Asset Purchase Agreement or any
certificate or other instrument or agreement furnished or to be furnished
to Sellers by Purchaser in connection therewith (the "Obligations");
2. Agrees with Sellers that whenever Purchaser shall fail to pay
or perform when due any of the Obligations, it will on demand by Sellers
from time to time pay or perform any and all of the same;
3. Agrees that Sellers shall not be required to resort first for
payment or performance of the Obligations to Purchaser or any other person
or corporation; and
4. Agrees that all of the Obligations shall be conclusively
presumed to have been created in reliance on this Guaranty.
Sellers will not be required, before exercising any of the rights,
powers or remedies conferred upon it in respect of Guarantor under this Guaranty
or by law:
1. to make demand of Purchaser;
2. to enforce or seek to enforce any claim, right or remedy
against Purchaser or any other person;
3. to make or file any claim in connection with the insolvency of
Purchaser or any other person; or
4. to take any action or obtain judgment in any court against
Purchaser or any other person.
Neither the liability of Guarantor under this Guaranty nor the rights,
powers and remedies conferred on Sellers under this Guaranty or by law will in
any way be released, prejudiced, diminished or affected by any of the following,
all of which are expressly waived:
1. the granting of time or indulgence to, or any compromise with
or agreement not to sue Purchaser, Guarantor or any other person or
Purchaser's abstaining from or delaying the collection of any payment or
amounts due;
2. the absence of any default by Purchaser or of any action taken
by Purchaser;
<PAGE>
3. Sellers obtaining or failing to obtain or perfect any other
guaranty or security (whether contemporaneously with this Agreement or not)
or the modification, variation, renewal, release, termination or discharge
by Sellers of any such security;
4. the insolvency, incapacity, disability, or any change in the
constitution, name, control or style of, Purchaser, Sellers, Guarantor or
any other person;
5. any invalidity, illegality, unenforceability, irregularity or
frustration in any respect of any of the Obligations; and
6. any act, omission or circumstances which, but for this
Guaranty, might operate to prejudice, affect or otherwise diminish the
liability of Guarantor hereunder.
This Guaranty is a continuing guaranty and will remain in full force
and effect until all the Obligations have been irrevocably paid, performed,
discharged and satisfied in full. This Guaranty shall be governed by, and
construed in accordance with, the internal laws of the State of New York.
Without prejudice to Sellers' rights against Purchaser as principal
obligor, Guarantor agrees as a separate and independent stipulation that any
Obligations which may not be recoverable as a guaranty (whether by reason of any
legal limitation, disability or incapacity on or of Seller or any other fact or
circumstance) or which are or become illegal, void, voidable, unenforceable,
discharged by any insolvency or irrecoverable (and whether or not known to
Purchaser, Guarantor or any other person) shall nevertheless be recoverable from
and enforceable against Guarantor as sole or principal debtor in respect thereof
and shall be paid or performed by Guarantor on demand.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly executed
and delivered as of the date first above written.
B&G FOODS, INC.
By: /S/David Wenner
--------------------------
Name: David Wenner
Title: President
2
EXHIBIT 4
CONSENT, WAIVER AND SECOND AMENDMENT
TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This Consent, Waiver and Second Amendment to the Second Amended and
Restated Credit Agreement is dated as of January 12, 1999 ("Agreement"), and is
by and among B&G FOODS, INC., a Delaware corporation ("Borrower"), B&G FOODS
HOLDINGS CORP., a Delaware corporation ("Holdings"), each of the Subsidiaries
party hereto, as guarantors (collectively, the "Subsidiary Guarantors"), the
financial institutions parties hereto (the "Lenders") and HELLER FINANCIAL,
INC., a Delaware corporation, Agent for the other Lenders party thereto and as a
Lender ("Agent").
WITNESSETH:
WHEREAS, Borrower, Lenders and Agent are parties to that certain Second
Amended and Restated Credit Agreement dated as of August 11, 1997 (as amended
from time to time, the "Credit Agreement") (capitalized terms not otherwise
defined herein shall have the definitions provided therefor in the Credit
Agreement) and to certain other documents executed in connection with the Credit
Agreement; and
WHEREAS, Holdings is a party to that certain Holdings Guaranty dated as
of December 27, 1996 in favor of Agent, for the benefit of Agent and Lenders (as
from time to time amended, restated, supplemented, modified or reaffirmed, the
"Holdings Guaranty"), pursuant to which Holdings has guaranteed the Obligations
of Borrower under the Credit Agreement and the other Loan Documents; and
WHEREAS, each of the Subsidiary Guarantors (other than Trappey's, MGF
and UN) is a party to that certain Second Amended and Restated Subsidiary
Guaranty dated as of August 11, 1997 in favor of Agent, for the benefit of Agent
and Lenders (as from time to time amended, restated, supplemented, modified or
reaffirmed, the "Existing Subsidiary Guaranty"), pursuant to which each such
Subsidiary Guarantor has guaranteed the Obligations of Borrower under the Credit
Agreement and the other Loan Documents; and
WHEREAS, Trappey's is a party to that certain Subsidiary Guaranty dated
as of August 15, 1997 in favor of Agent, for the benefit of Agent and Lenders
(as from time to time amended, restated, supplemented, modified or reaffirmed,
the "Trappey's Subsidiary Guaranty"), pursuant to which such Subsidiary
Guarantor has guaranteed the Obligations of Borrower under the Credit Agreement
and the other Loan Documents; and
WHEREAS, each of MGF and UN is a party to a Subsidiary Guaranty dated
as of July 17, 1998 in favor of Agent, for the benefit of Agent and Lenders
(each, as from time to time amended, restated, supplemented, modified or
reaffirmed, a "Maple Grove Subsidiary Guaranty";
<PAGE>
the Trappey's Subsidiary Guaranty and each Maple Grove Subsidiary Guaranty may
be individually referred to herein as an "Additional Subsidiary Guaranty" and
collectively as the "Additional Subsidiary Guaranties"), pursuant to which each
such Subsidiary Guarantor has guaranteed the Obligations of Borrower under the
Credit Agreement and the other Loan Documents; and
WHEREAS, the parties wish to amend the Credit Agreement as provided
herein; and
WHEREAS, Holdings wishes to reaffirm its Obligations under the Holdings
Guaranty; and
WHEREAS, each of the Subsidiary Guarantors wishes to reaffirm its
Obligations under the Existing Subsidiary Guaranty or the Additional Subsidiary
Guaranty to which it is a party, as applicable;
NOW, THEREFORE, the parties agree as follows:
1. Amendments to the Credit Agreement.
----------------------------------
A. Amendment to Subsection 1.1(B).
------------------------------
From and after the date hereof (the "Second Amendment Effective
Date"), subsection 1.1(B) of the Credit Agreement is amended by deleting the
first sentence of such subsection and inserting the following in substitution
therefor:
Subject to the satisfaction of the terms and conditions set
forth herein and in reliance upon the representations and warranties of
Borrower set forth herein, each Lender agrees, severally and not
jointly, to lend to Borrower from time to time from the Original
Closing Date to the Expiry Date its Pro Rata Share of the loans
requested by Borrower to be made by Lenders under this subsection
1.1(B), up to an aggregate maximum for all Lenders of $60,000,000 (as
the same may be reduced from time to time hereunder, the "Revolving
Loan Commitment"; the Revolving Loan Commitment of each Lender as of
the Second Amendment Effective Date is as set forth on the signature
pages to the Second Amendment).
B. Amendments to Subsection 1.2(A).
-------------------------------
(1) From and after the Second Amendment Effective Date,
subsection 1.2(A)(1) of the Credit Agreement is amended by deleting the first
sentence of such subsection and inserting the following in substitution
therefor:
the Revolving Loans and all other Obligations shall bear interest at a
per annum rate equal to the sum of the Base Rate plus the Base Rate
Margin.
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<PAGE>
(2) From and after the Second Amendment Effective Date, subsection
1.2(A)(2) of the Credit Agreement is amended by deleting the first sentence of
such subsection and inserting the following in substitution therefor:
the Revolving Loans and all other Obligations shall bear interest at a
per annum rate equal to the sum of the LIBOR plus the LIBOR Margin.
C. Amendment to Subsection 4.1.
---------------------------
From and after the Second Amendment Effective Date, subsection 4.1
of the Credit Agreement hereby is amended by deleting it and substituting
therefor as follows:
4.1 Capital Expenditure Limits. The aggregate amount of all
Capital Expenditures of Borrower and its Subsidiaries in any fiscal
year of Borrower will not exceed the amount set forth below for such
fiscal year.
Fiscal Year Maximum Capital Expenditures
----------- ----------------------------
1999 and each fiscal
year thereafter $4,000,000
"Capital Expenditures" will be calculated as illustrated on
Exhibit 4.6(C).
D. Amendment to Subsection 7.2.
---------------------------
From and after the Second Amendment Effective Date, subsection 7.2
of the Credit Agreement hereby is amended by inserting a new subsection 7.2(E)
as follows:
(E) If Availability during any period of fifteen (15) consecutive
Business Days is less than $2,000,000, BRS shall have made an
additional cash contribution to the common equity of Borrower of not
less than $5,000,000, which contribution shall have been made no later
than the tenth (10th) Business Day following the last day of such
fifteen (15) Business Day period.
E. Amendments to Section 10.1.
--------------------------
(1) From and after the Second Amendment Effective Date, subsection
10.1 of the Credit Agreement is hereby amended by deleting the defined term
"Commitment" in its entirety and inserting the following in substitution
therefor:
"Commitment" means, with respect to any Lender as of any date of
determination, the amount of such Lender's commitment to make Revolving
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<PAGE>
Loans, as set forth on the signature page of this Agreement opposite
such Lender's signature, on the signature page of any amendment to this
Agreement opposite such Lender's signature, or in a Lender Addition
Agreement, if any, executed by such Lender, whichever is most recent as
of such date of determination.
(2) From and after the Second Amendment Effective Date,
subsection 10.1 of the Credit Agreement is hereby amended by inserting the
following new defined term in proper alphabetical order:
"Adjustment Date" means February 1, May 1, August 1 and November
1 of each year.
"Availability" means, as of any date of determination, the
Revolving Loan Commitment less the sum of (a) the outstanding principal
balance of the Revolving Loan as of such date, plus (b) the outstanding
Risk Participation Liability as of such date.
"Base Rate Margin" shall mean, (i) as of the Second Amendment
Effective Date, 1.00% per annum, and (ii) thereafter, as of each
Adjustment Date, commencing with August 1, 1999, the Base Rate Margin
shall be adjusted, if necessary, to the applicable percent per annum
set forth in the pricing table below opposite the Senior Indebtedness
to EBITDA Ratio calculated for the relevant Calculation Period.
PRICING TABLE
-------------
Senior Indebtedness to EBITDA Ratio Base Rate Margin
----------------------------------- ----------------
Less than 1.0 to 1.0 0.75%
Equal to or greater than 1.0 to 1.0,
but less than 2.0 to 1.0 1.00%
Equal to or greater than 2.0 to 1.0 1.50%
If Borrower shall fail to deliver a Compliance Certificate by the date
required pursuant to subsection 4.6(C), effective as of the tenth
Business Day following the date on which such Compliance Certificate
was due, the Base Rate Margin shall be conclusively presumed to equal
the highest Base Rate Margin specified in the pricing table set forth
above until the date of delivery of the Compliance Certificate
"Calculation Period" means, as of any Adjustment Date, the
trailing twelve month period ending on the last day of the most
recently completed calendar
-4-
<PAGE>
quarter prior to such Adjustment Date.
"LIBOR Margin" shall mean, (i) as of the Second Amendment Effective
Date, 2.50% per annum, and (ii) thereafter, as of each Adjustment Date,
commencing with August 1, 1999, the LIBOR Margin shall be adjusted, if
necessary, to the applicable percent per annum set forth in the pricing table
below opposite the Senior Indebtedness to EBITDA Ratio calculated for the
relevant Calculation Period.
PRICING TABLE
-------------
Senior Indebtedness to EBITDA Ratio LIBOR Margin
----------------------------------- ------------
Less than 1.0 to 1.0 2.25%
Equal to or greater than 1.0 to 1.0,
but less than 2.0 to 1.0 2.50%
Equal to or greater than 2.0 to 1.0 3.00%
If Borrower shall fail to deliver a Compliance Certificate by the date
required pursuant to subsection 4.6(C), effective as of the tenth
Business Day following the date on which such Compliance Certificate
was due, the LIBOR Margin shall be conclusively presumed to equal the
highest LIBOR Margin specified in the pricing table set forth above
until the date of delivery of the Compliance Certificate
"Polaner Acquisition" means the acquisition by Roseland
Distribution from the Polaner Sellers of substantially all of the
assets of the Polaner Sellers related to the "Polaner" brand and any
other brands described in the Polaner Acquisition Agreement, and all
associated products, pursuant to the terms and conditions of the
Polaner Acquisition Agreement.
"Polaner Acquisition Agreement" means the Asset Purchase
Agreement to be dated on or about the Second Amendment Effective Date,
by and among Roseland Distribution and the Polaner Sellers, and the
other documents, instruments and agreements executed and delivered
pursuant thereto or in connection therewith.
"Polaner Sellers" means, collectively, International Home Foods,
Inc., a Delaware corporation and M. Polaner, Inc., a Delaware
corporation.
"Second Amendment" means that certain Consent, Waiver and Second
Amendment to Credit Agreement dated as of the Second Amendment
Effective Date among Borrower, Holdings, each Subsidiary Guarantor,
Agent and Lenders.
-5-
<PAGE>
"Second Amendment Effective Date" means January 12, 1999.
"Senior Indebtedness to EBITDA Ratio" means, for any Calculation
Period, the ratio of (i) Borrower's Total Indebtedness (calculated as
illustrated on Exhibit 4.6(C), but less Borrower's Subordinated
Indebtedness), to (ii) EBITDA (calculated as illustrated on Exhibit
4.6(C)) for the twelve (12) month period ending on the last day of such
month.
2. Consent and Waiver. Subsection 3.18 of the Credit Agreement
prohibits the Loan Parties from acquiring by purchase or otherwise all or any
substantial part of the business or assets or capital stock of any other Person
unless such acquisition constitutes a Permitted Acquisition or such acquisition
is consented to by the Requisite Lenders.
Borrower has requested that Agent and the Lenders consent to the
Polaner Acquisition by its Subsidiary, Roseland Distribution and to the
execution and delivery of the guaranty of Borrower in connection therewith. The
Polaner Acquisition does not satisfy the conditions outlined in subsection
3.18(ii) of the Credit Agreement for a Permitted Acquisition.
Agent and Requisite Lenders hereby consent to the consummation of the
Polaner Acquisition and to the execution and delivery of the guaranty (in form
and substance reasonably satisfactory to Agent) of Borrower in connection
therewith; provided, however, that:
(A) the Polaner Acquisition is completed no later than February 28,
1999, with no material deviations from the terms and conditions set
forth in the Polaner Acquisition Agreement,
(B) the most recent financial statements of the Polaner Sellers and all
other appraisals, accounting reviews, material due diligence reports,
projections, certificates and other materials and information required
to be delivered pursuant to subsection 3.18 of the Credit Agreement in
connection with the Polaner Acquisition shall have been provided to
Agent and shall be satisfactory to Agent (and Agent acknowledges that
all such materials have been delivered and are satisfactory as of the
Second Amendment Effective Date, provided that Borrower shall continue
to remain obligated to deliver such materials to Agent prior to the
closing of the Polaner Acquisition in the event Borrower discovers any
material new information or material changes in existing information in
the course of its due diligence regarding the Polaner Acquisition),
and, without duplication of the foregoing, the conditions precedent to
Permitted Acquisitions set forth in subsection 3.18 (other than
subsection 3.18(n)) of the Credit Agreement shall have been satisfied
in connection with the Polaner Acquisition,
(C) contemporaneously with the consummation of the Polaner Acquisition,
(i) if
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<PAGE>
necessary, Roseland Distribution shall execute and deliver such UCC
financing statements and such other Security Documents as the Agent may
request in order to grant to Agent, for the benefit of Agent and
Lenders, a first priority perfected security interest in and to
substantially all of the assets acquired pursuant to the Polaner
Acquisition; and (ii) all Liens on any of the assets acquired pursuant
to the Polaner Acquisition securing Indebtedness of the Polaner Sellers
or otherwise described on such schedule shall be released and
terminated in full or termination statements with respect thereto shall
be executed and delivered and made available for filing on the closing
date of the Polaner Acquisition; and
(D) the Acquisition Agreement shall have been collaterally assigned to
Agent, for the benefit of Agent and Lenders, pursuant to a Collateral
Assignment of Representations, Warranties, Covenants, Indemnities and
Rights reasonably satisfactory to Agent.
Nothing in this subsection 2 shall be construed by Borrower to be a waiver of
any other term or condition of the Credit Agreement or a consent to any other
transaction.
3. Representations and Warranties. To induce Agent and Lenders to enter
into this Agreement, Borrower, Holdings and each Subsidiary Guarantor represents
and warrants to Agent on behalf of the Lenders that the execution, delivery and
performance by Borrower, Holdings and each Subsidiary Guarantor of this
Agreement are within their respective corporate powers, have been duly
authorized by all necessary corporate action and do not and will not contravene
or conflict with any provision of law applicable to Borrower, Holdings or any
Subsidiary Guarantor, the Certificate of Incorporation or Bylaws of Borrower,
Holdings or any Subsidiary Guarantor, or any order, judgment or decree of any
court or other agency of government or any contractual obligation binding upon
Borrower, Holdings or any Subsidiary Guarantor; and the Credit Agreement and the
other Loan Documents, as amended or reaffirmed as of the date hereof, are the
legal, valid and binding obligation of each of Borrower, Holdings and each
Subsidiary Guarantor, enforceable against each such Person in accordance with
its terms.
4. Conditions. The effectiveness of the amendments stated in this
Agreement is subject to each of the following conditions precedent or, in the
case of clause (H) below, conditions subsequent:
(A) Execution of Agreement. This Agreement shall have been duly
executed and delivered by Borrower, Holdings, each Subsidiary Guarantor listed
on the signature pages hereof and by the Requisite Lenders.
(B) Fee Letters; Payment of Fees. Borrower shall have executed and
delivered fee letters to (a) the Lenders executing this Agreement which have
purchased a portion of the $10,000,000 increase in the Revolving Loan Commitment
provided for hereunder, setting forth
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<PAGE>
Borrower's agreement to pay certain fees to the Lenders in consideration for
such Commitment increase and the consents set forth herein, (b) the Lenders
executing this Agreement which have consented to the transactions set forth
herein but which have not purchased a portion of such Commitment increase,
setting forth Borrower's agreement to pay certain fees to the Lenders in
consideration for such consent, and (c) Agent, setting forth Borrower's
agreement to pay certain fees to Agent, and Borrower shall have paid or caused
to be paid to Agent and/or Lenders any such fees payable on the Second Amendment
Effective Date pursuant to any such fee letters.
(C) Notes. Borrower shall have executed and delivered to each
applicable Lender new notes evidencing the Revolving Loan Commitment of such
Lender after giving effect to the Commitment increase effected hereby.
(D) Side Letter. BRS shall have executed and delivered a letter
agreement setting forth its agreement that, if Availability during any period of
fifteen (15) consecutive Business Days is less than $2,000,000, BRS shall make
an additional cash contribution to the common equity of Borrower of not less
than $5,000,000, which contribution shall be made no later than the tenth (10th)
Business Day following the last day of such fifteen (15) Business Day period.
(E) No Default. No Default or Event of Default under the Credit
Agreement, as amended hereby, shall have occurred and be continuing.
(F) Warranties and Representations. The warranties and
representations of the Loan Parties contained in this Agreement, the Credit
Agreement, as amended hereby, and the other Loan Documents, shall be true and
correct as of the effective date hereof, with the same effect as though made on
such date.
(G) Consent of Holders of Subordinated Indebtedness. To the extent
consents, waivers or amendments are required based on the amendment or consent
provided for in this Agreement or the Polaner Acquisition, Borrower shall have
provided Agent with copies of all documents executed by the Borrower, Holdings
or the holders of Subordinated Indebtedness, which documents shall be in form
and substance satisfactory to Agent.
(H) Conditions Subsequent. (1) As promptly as practicable following
the Second Amendment Effective Date, Borrower shall execute and deliver such
modifications to the existing mortgages or deeds of trust in favor of Agent as
may be necessary to reflect the increase in the Revolving Loan Commitment
effected pursuant to this Agreement.
(2) Upon consummation of the Polaner Acquisition, Borrower shall have
delivered or caused to be delivered all documents and instruments necessary or
appropriate to evidence that Agent, on behalf of the Lenders, shall, upon
consummation of the Polaner Acquisition, have a first priority perfected
security interest in and to substantially all of the assets acquired by Roseland
Distribution pursuant to the Polaner Acquisition and, without duplication of the
foregoing, each
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<PAGE>
of the other conditions set forth in subsection 2 hereof shall have been met or
satisfied.
5. Miscellaneous.
-------------
(A) Captions. Section captions used in this Agreement are for
convenience only, and shall not affect the construction of this Agreement.
(B) Governing Law. This Agreement shall be a contract made under and
governed by the laws of the State of New York, without regard to conflict of
laws principles. Whenever possible each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
(C) Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same Agreement.
(D) Successors and Assigns. This Agreement shall be binding upon
Borrower, Holdings, each Subsidiary Guarantor, Agent and Lenders and their
respective successors and assigns, and shall inure to the sole benefit of each
of Borrower, Holdings, each Subsidiary Guarantor, Agent and Lenders and the
successors and assigns of each of Borrower, Holdings, each Subsidiary Guarantor,
Agent and Lenders.
(E) References. Any reference to the Credit Agreement contained in
any notice, request, certificate, or other document executed concurrently with
or after the execution and delivery of this Agreement shall be deemed to include
this Agreement unless the context shall otherwise require.
(F) Continued Effectiveness; Reaffirmation. Notwithstanding anything
contained herein, the terms of this Agreement are not intended to and do not
serve to effect a novation as to the Credit Agreement. The parties hereto
expressly do not intend to extinguish the Credit Agreement. Instead, it is the
express intention of the parties hereto to reaffirm the indebtedness created
under the Credit Agreement which is evidenced by the Notes and secured by the
Collateral. The Credit Agreement as amended hereby and each of the other Loan
Documents remains in full force and effect. Holdings hereby reaffirms its
continuing liability as a guarantor for the Obligations of Borrower under the
Credit Agreement pursuant to the Holdings Guaranty and acknowledges and agrees
that the Liens on its Collateral granted under the Loan Documents are continuing
and are hereby reaffirmed. Each of the Subsidiary Guarantors hereby reaffirms
its continuing liability as a guarantor for the Obligations of Borrower under
the Credit Agreement pursuant to the Existing Subsidiary Guaranty and the
Additional Subsidiary Guaranty, as applicable, and acknowledges and agrees that
the Liens on its Collateral granted under the Loan Documents are continuing and
are hereby reaffirmed.
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<PAGE>
(signatures pages follow)
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<PAGE>
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement
to be duly executed and delivered by its duly authorized officer as of the day
and year first above written.
B&G FOODS, INC., as Borrower
By: /s/David Wenner
-------------------------------
Title: President
----------------------------
S-1
<PAGE>
Commitment to make Revolving HELLER FINANCIAL, INC., as Agent and a
Loans Lender
$11,000,000
Percentage of Revolving By: /s/
Loan Commitment: ----------------------------------
18.33300% Title:
-------------------------------
S-2
<PAGE>
Commitment to make Revolving Loans BANKBOSTON, N.A.
$9,000,000 as a Lender
Percentage of Revolving
Loan Commitment: By: /s/
15.00000% ----------------------------------
Title: Managing Director
-------------------------------
S-3
<PAGE>
Commitment to make Revolving Loans BANK AUSTRIA CREDITANSTALT
CORPORATE $10,000,000 FINANCE, INC., as a Lender
Percentage of Revolving
Loan Commitment: By: /s/Clifford L. Weiss
16.66675% ----------------------------------
Title: Vice President
-------------------------------
By: /s/Catherine K. MacDonald
----------------------------------
Title: Vice President
-------------------------------
S-4
<PAGE>
Commitment to make Revolving Loans FIRST SOURCE FINANCIAL LLP, by
$10,000,000 FIRST SOURCE FINANCIAL INC., its
Percentage of Revolving agent/manager, as a Lender
Loan Commitment:
16.66675% By: /s/Kathi J. Inorio
----------------------------------
Title: Vice President
-------------------------------
S-5
<PAGE>
Commitment to make Revolving Loans IBJ WHITEHALL BANK & TRUST COMPANY,
$10,000,000 as a Lender
Percentage of Revolving
Loan Commitment: By: /s/Mark H. Minter
16.66675% ----------------------------------
Title: Managing Director
-------------------------------
S-6
<PAGE>
Commitment to make Revolving Loans THE BANK OF NEW YORK, as a Lender
$10,000,000
Percentage of Revolving By: /s/Frank S. Bridges
Loan Commitment: -------------------------------
16.66675% Title: Vice President
----------------------------
By:
-------------------------------
Title:
-----------------------------
S-7
<PAGE>
Guarantors:
B&G FOODS HOLDINGS CORP.
By: /s/David Wenner
-------------------------------
Title: President
-----------------------------
BGH HOLDINGS, INC.
By: /s/David Wenner
-------------------------------
Title: President
-----------------------------
ROSELAND DISTRIBUTION COMPANY,
formerly known as B&G FOODS, INC.
By: /s/David Wenner
-------------------------------
Title: President
-----------------------------
BLOCH & GUGGENHEIMER, INC.
By: /s/David Wenner
-------------------------------
Title: President
-----------------------------
S-8
<PAGE>
RWBV ACQUISITION CORP.
By: /s/David Wenner
-------------------------------
Title: President
-----------------------------
BURNS & RICKER, INC.
By: /s/David Wenner
-------------------------------
Title: President
-----------------------------
TRAPPEY'S FINE FOODS, INC.
By: /s/David Wenner
-------------------------------
Title: President
-----------------------------
MAPLE GROVE FARMS OF VERMONT, INC.
By: /s/David Wenner
-------------------------------
Title: President
-----------------------------
S-9
EXHIBIT 5
[GRAPHIC OMITTED]
B&G Foods, Inc.
426 Eagle Rock Ave.
Roseland, NJ 07068
PRESS RELEASE
-------------
ROSELAND, N.J., JANUARY 13, 1999: B&G Foods, Inc. announced today that it has
entered into a definitive agreement to purchase the Polaner(R) brand of fruit
spreads, preserves and wet spices from International Home Foods, Inc. Financial
terms of the acquisition were not disclosed. B&G has been the exclusive
co-packer of the Polaner products and currently sells and distributes the
products through its Store-Door distribution system in the greater New York
area. Completion of the acquisition is subject to Hart-Scott-Rodino review. Upon
completion of the acquisition, which is expected within one month, the Company
expects to add the Polaner(R) line to its national distribution network as well.
David L. Wenner, President and Chief Executive Officer of B&G, stated "B&G
intends to use its expertise at managing smaller, specialty brands to grow
Polaner(R) in both the grocery and produce departments of supermarkets. Our
acquisitions over the past several years have added the ability to reach other
channels of food distribution such as mass merchants, non-food outlets and
warehouse clubs. Opportunities to sell Polaner(R) products through those
channels will also be explored."
The statements in this press release that are not historical facts are
forward-looking statements reflecting the Company's current views as to future
events and financial performance with respect to the Polaner(R) acquisition.
These statements are subject to risks and uncertainties that could cause actual
results to differ materially from those set forth in this press release. Factors
that might cause such a difference include the possibility of lower sales
volumes for Polaner(R) products, higher costs of raw materials and reactions of
competitors to the transaction. Forward-looking statements speak only as of the
date made. B&G undertakes no obligation to update any forward-looking statement
to reflect events or circumstances arising after it is made.
B&G Foods, Inc. is a diversified food products company with 1998 proforma sales
of approximately $205,000,000. The company is headquartered in Roseland, New
Jersey and manufactures and sells B&G(R) brand pickles, peppers and specialty
items, Trappey(R) peppers, Vermont Maid(R) syrup, Regina(R) wine vinegars, Brer
Rabbit(R) molasses, Red Devil(R) hot sauces and Maple Grove Farms(R) syrups,
salad dressings and specialty items. It also manufactures and sells bagel chips
and other baked snacks under the Burns & Ricker(R), New York Style(R) and Regina
Panetini(R) trademarks. The company was acquired in December 1996 by the New
York investment firm Bruckmann, Rosser and Sherrill & Co., L.P.. Polaner will be
the company's fourth acquisition since its purchase by BRS.
Contact: Robert C. Cantwell
(973) 228-2500
