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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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): October 5, 1998
(September 24, 1998)
PRO-FAC COOPERATIVE, INC.
(Exact Name of Registrant as Specified in Charter)
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New York 0-20539 16-6036816
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(State or other jurisdiction of incorporation) (Commission File Number) (IRS Employer Identification Number)
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90 Linden Oaks, Rochester, New York 14625
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(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number Including Area Code: (716) 383-1850
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On September 24, 1998, Agrilink Foods, Inc., a wholly-owned subsidiary of
Pro-Fac Cooperative, Inc. (Nasdaq: PFACP) announced that it has completed the
acquisition of the Dean Foods Vegetable Company from Dean Foods Company (NYSE:
DF), of Franklin Park, Illinois. Included in this acquisition are the nationally
know Birds Eye brand and Dean's Freshlike and VegAll brands.
The transaction consisted of approximately $370 million in cash, an Agrilink
note in the amount of $30 million, and was net of the sale of the Agrilink
aseptic foods business, located in Benton Harbor, Michigan.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS:
(a)(4) and (b)(1) Financial statements of the business acquired and
pro forma financial information reflecting the transaction
are not included with this report and will be filed on or
before December 7, 1998.
(c) See Exhibit Index for a listing of exhibits.
2
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PRO-FAC COOPERATIVE, INC.
Date: October 5, 1998 BY: /s/ Earl L. Powers
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EARL L. POWERS,
VICE PRESIDENT FINANCE AND
ASSISTANT TREASURER
(Principal Financial Officer and
Principal Accounting Officer)
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EXHIBIT INDEX
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EXHIBIT
NUMBER DESCRIPTION
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2(a) Stock Purchase Agreement by and between Dean Foods Company and
Agrilink Foods, Inc. dated as of July 24, 1998.
2(b) Amendatory Agreement dated as of September 10, 1998 by and
between Dean Foods Company and Agrilink Foods, Inc. with respect
to the Stock Purchase Agreement and the Asset Transfer Agreement
dated July 24, 1998.
2(c) Secondary Amendatory Agreement dated as of September 23, 1998 by
and between Dean Foods Company and Agrilink Foods, Inc. with
respect to the Stock Purchase Agreement and the Asset Transfer
Agreement dated July 24, 1998.
2(d) Asset Transfer Agreement by and between Dean Foods Company and
Agrilink Foods, Inc. dated as of July 24, 1998.
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STOCK PURCHASE AGREEMENT
BY AND BETWEEN
DEAN FOODS COMPANY
AND
AGRILINK FOODS, INC.
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JULY 24, 1998
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TABLE OF CONTENTS
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1. Definitions..........................................................................2
2. Purchase and Sale of Target Shares..................................................10
(a) Basic Transaction.....................................................10
(b) Purchase Price and Transfer of Consideration..........................10
(c) Assumption of Certain Liabilities.....................................10
(d) The Closing...........................................................11
(e) Deliveries at the Closing.............................................11
(f) Closing Date Adjusted Net Working Capital Adjustment..................11
(i) Estimated Closing Date Adjusted Net Working
Capital.................................................11
(ii) Closing Date Adjusted Net Working Capital...............11
3. Representations and Warranties of the Seller........................................13
(a) Representations and Warranties Concerning the Seller, Dean
International and Holding Company..........................................13
(i) Organization............................................13
(ii) Authorization of Transaction............................13
(iii) Noncontravention........................................14
(iv) Holding Company Status..................................14
(v) Brokers' Fees...........................................16
(vi) Seller's Target-Related Intellectual Property...........16
(vii) Seller's Target-Related Employee Benefits...............16
(b) Representations and Warranties Concerning the Targets.................17
(i) Organization, Qualification, and Power..................17
(ii) Target Shares...........................................17
(iii) Noncontravention........................................17
(iv) Subsidiaries............................................18
(v) Financial Statements....................................18
(vi) Events Subsequent to Most Recent Fiscal Year End........18
(vii) Legal Compliance........................................20
(viii) Regulatory Matters......................................20
(ix) Tax Matters.............................................21
(x) Real Property...........................................22
(xi) Personal Property.......................................23
(xii) Intellectual Property...................................23
(xiii) Sufficiency of Assets...................................25
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(xiv) Inventory.............................................25
(xv) Contracts.............................................25
(xvi) Notes and Accounts Receivable.........................27
(xvii) Powers of Attorney....................................27
(xviii) Insurance.............................................27
(xix) Litigation............................................27
(xx) Arbitration...........................................28
(xxi) Product Warranty......................................28
(xxii) Employees.............................................28
(xxiii) Top Customers.........................................28
(xxiv) Employee Benefits.....................................28
(xxv) Guaranties............................................29
(xxvi) Environmental and Public Safety Matters...............29
(xxvii) Certain Business Relationships With the Seller and
Its Affiliates........................................30
(xxviii) Undisclosed Liabilities...............................30
(xxix) Books and Records.....................................30
(xxx) Annual Incentive Bonus Plan...........................31
(xxxi) Year 2000 Compliance..................................31
(xxxii) Disclosure............................................31
4. Representations and Warranties of the Buyer.........................................31
(a) Organization of the Buyer.............................................31
(b) Authorization of Transaction..........................................31
(c) Noncontravention......................................................31
(d) Brokers' Fees.........................................................32
(e) Financing.............................................................32
(f) Investment............................................................32
5. Pre-Closing Covenants...............................................................33
(a) General...............................................................33
(b) Regulatory Matters and Approvals......................................33
(c) Operation of Business of the Targets .................................33
(d) Operation of Business of the Aseptic Business.........................34
(e) Full Access to the Buyer..............................................34
(f) Full Access to the Seller.............................................34
(g) Notice of Developments................................................34
(h) Exclusivity to the Buyer..............................................34
(i) Exclusivity to the Seller.............................................35
(j) ......................................................................35
6. Post-Closing Covenants..............................................................35
(a) General...............................................................35
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(b) Section 338(h)(10) Election...........................................35
(c) Allocation of Purchase Price..........................................35
(d) Retention of and Access to Records....................................36
(e) Employees and Employee Benefit Plans..................................36
(f) DFVC Name Change. ....................................................38
(g) Non-Compete...........................................................38
(h) Post-Closing License of Seller's Dean Trademark.......................39
(i) Settlement of Seller Group Payments...................................40
(j) Release of IRB Guarantee. ...........................................40
7. Conditions to Obligation to Close...................................................40
(a) Conditions to Obligation of the Buyer.................................40
(b) Conditions to Obligation of the Seller................................42
8. Indemnification.....................................................................44
(a) General...............................................................44
(b) Indemnification of Buyer Indemnitees..................................44
(c) Indemnification of Seller Indemnitees.................................45
(d) Limitation on Indemnification Obligations.............................45
(e) Cooperation...........................................................46
(f) Third Party Claims Subject to Indemnification.........................46
(g) Exclusivity...........................................................48
9. Tax Matters.........................................................................48
(a) Preparation and Filing of Income Tax Returns..........................48
(b) Income Tax Refunds and Benefits.......................................49
(c) Cooperation on Tax Matters............................................49
(d) Control Rights........................................................50
(e) Expenses..............................................................50
(g) Certain Taxes.........................................................50
10. Termination.........................................................................51
(a) Termination of Agreement..............................................51
(b) Effect of Termination.................................................52
11. Miscellaneous.......................................................................52
(a) Press Releases and Public Announcements...............................52
(b) No Third-Party Beneficiaries..........................................52
(c) Expenses..............................................................52
(d) Entire Agreement......................................................52
(e) Succession and Assignment.............................................53
(f) Counterparts..........................................................53
(g) Headings..............................................................53
(h) Notices...............................................................53
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(i) Governing Law.........................................................54
(j) Amendments and Waivers................................................54
(k) Severability..........................................................54
(l) Construction..........................................................54
(m) Incorporation of Exhibits and Disclosure Schedules....................55
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Exhibit A - Closing Date Birds Eye License Agreement
Exhibit B - Continued Employee Severance Pay and Benefits
Exhibit C - Certain Title Commitment Items
Exhibit D - Substance of Opinion of General Counsel of the Seller
Exhibit E - Substance of Opinion of Special Counsel to Birds Eye Mexico
Exhibit F - Substance of Opinion of Counsel to the Buyer
Seller Disclosure Schedule - Exceptions to Representations and Warranties
Buyer Disclosure Schedule - Exceptions to Representations and Warranties
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is entered into on July
24, 1998, by and between Dean Foods Company, a Delaware corporation (the
"Seller"), and Agrilink Foods, Inc., a New York corporation (the "Buyer"). The
Buyer and the Seller are sometimes referred to herein as a "Party" and
collectively as the "Parties."
The Seller owns (i) directly, all of the outstanding capital stock of Dean
Foods Vegetable Company, a Wisconsin corporation ("DFVC"), and (ii) indirectly
through Dean Foods International Investments, Inc., a Delaware corporation and a
wholly-owned subsidiary of the Seller ("Dean International"), all of the
outstanding capital stock of BEMSA Holding, Inc., a Delaware corporation and a
wholly-owned subsidiary of Dean International ("Holding Company"). DFVC and
Holding Company directly own all of the issued and outstanding capital stock of
Birds Eye de Mexico SA de CV, a limited liability company organized under the
laws of Mexico ("Birds Eye Mexico" and, together with DFVC, the "Targets"). The
Buyer owns and operates an aseptic business conducted out of its Benton Harbor,
Michigan facility (the "Aseptic Business").
This Agreement contemplates a transaction in which the Seller will sell or
cause to be sold to the Buyer and/or one or more subsidiaries of the Buyer, for
consideration comprised of cash and the Aseptic Business of the Buyer (or, under
certain circumstances, for consideration comprised solely of cash), all of the
outstanding capital stock of DFVC and Holding Company. If the consideration
includes the Aseptic Business, the transfer of the Aseptic Business to the
Seller will be effected pursuant to the Asset Transfer Agreement by and between
the Seller and the Buyer of even date herewith (the "Asset Transfer Agreement").
In connection with such transaction (i) the Seller will transfer to the Buyer
and/or one or more subsidiaries of the Buyer all of the Seller's right, title
and interest in the trademarks of the Seller that are used in the businesses of
the Targets, subject to a royalty-free three-year license back to the Seller of
one of such trademarks for certain uses, (ii) the Seller will assign to the
Buyer or a subsidiary of the Buyer Seller's rights as licensor under the
agreement pursuant to which it licenses Kraft General Foods, Inc. ("Kraft") to
use certain of such trademarks and (iii) if the consideration includes the
Aseptic Business, the Buyer will grant to the Seller a royalty-free perpetual
license of certain of the Buyer's trademarks used in the Aseptic Business for
certain uses. In connection with the sale of the capital stock of DFVC and
Holding Company, the transferee of Seller's rights under the agreement referred
to in clause (ii) of the preceding sentence will assume Seller's obligations
thereunder and the Buyer will undertake certain severance obligations related to
employees of the Targets.
Now, therefore, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties, and
covenants herein contained, the Parties agree as follows.
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1. Definitions.
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act.
"Affiliated Group" means any affiliated group within the meaning of Code
Section 1504(a) or any similar group defined under a similar provision of state,
local or foreign law.
"All Cash Alternative" has the meaning set forth in Section 2(b).
"Aseptic Business" has the meaning set forth in the preface.
"Asset Transfer Agreement" has the meaning set forth in the preface.
"Birds Eye Mexico" has the meaning set forth in the preface.
"Birds Eye Mexico Series A Stock" means the Series A Stock of Birds Eye
Mexico.
"Birds Eye Mexico Series B Stock" means the Series B Stock of Birds Eye
Mexico.
"Birds Eye Dips Trademark" means "BIRDS EYE" for dairy based dips and for
caramel dips, U.S. Reg. No. 1,982,485.
"Buyer" has the meaning set forth in the preface.
"Buyer Disclosure Schedule" means the schedule entitled "Buyer Disclosure
Schedule" heretofore delivered by the Buyer, which schedule is arranged in
sections corresponding to the lettered and numbered subsections contained in
Section 4.
"Buyer Indemnitee" has the meaning set forth in Section 8(b).
"CERCLA" has the meaning set forth in Section 3(b)(xxvi)(E).
"Closed Premises" means the DFVC facilities and related real estate located
at Brillion and Cedar Grove, Wisconsin, Bellingham, Washington, and McAllen,
Texas.
"Closing" has the meaning set forth in Section 2(d).
"Closing Date" has the meaning set forth in Section 2(d).
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"Closing Date Birds Eye License Agreement" means a license agreement in
form and substance as set forth in Exhibit A attached hereto between the
transferee of the Seller's rights in and to the Birds Eye Dips Trademark, as
licensor, and the Seller, as licensee.
"Closing Date Adjusted Net Working Capital" means the amount equal to the
excess of (i) all inventory and trade receivables of the Targets as of the close
of business on the day immediately preceding the Closing Date over (ii) all
trade accounts payable and inventory-related accruals of the Targets as of the
close of business on the day immediately preceding the Closing Date, as finally
determined in accordance with Section 2(f)(ii)(A). Items included in Closing
Date Adjusted Net Working Capital shall be valued on the basis for their
valuation set forth in the notes to the Most Recent Balance Sheet, except that
inventory shall be valued on a first-in, first-out basis. The quantities and
types of inventory included in Closing Date Adjusted Net Working Capital shall
be the Targets' book inventory as of the close of business on the day
immediately preceding the Closing Date (reflecting any subsequent postings as of
the close of business on the day immediately preceding the Closing Date made in
accordance with the Targets' past practices), and no physical inventory shall be
conducted.
"Closing Date Adjusted Net Working Capital Statement" has the meaning set
forth in Section 2(f)(ii)(A).
"Closing Date Adjusted Net Working Capital Target" means $155,188,000.
"COBRA" means the requirement of Part 6 of Subtitle B of Title I of ERISA
and Code Section 4980B.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Confidentiality Agreement" means the letter agreement, dated April 24,
1998 between the Buyer and the Seller.
"Consolidated Income Tax Returns" has the meaning set forth in Section
9(a)(i).
"Continued Employees" has the meaning set forth in Section 6(e).
"Controlled Group" has the meaning set forth in Section 3(b)(xxiv).
"Control Group Liability" means any joint and several liability imposed by
law on entities that are Affiliates of each other.
"Damages" means all liabilities, demands, claims, actions or causes of
action, regulatory, legislative or judicial proceedings or investigations,
assessments, levies, losses, fines, penalties, damages, costs and expenses,
including, without limitation, reasonable fees and expenses of
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attorneys, accountants and other professionals sustained or incurred in
connection with the defense or investigation of any claim.
"Dean International" has the meaning set forth in the preface.
"Delaware General Corporation Law" means the General Corporation Law of the
State of Delaware.
"DFVC" has the meaning set forth in the preface.
"DFVC Common Stock" means any share of the Common Stock, par value $0.01
per share, of DFVC.
"DFVC Savings Plan" has the meaning set forth in Section 6(e)(iii).
"Employee Benefit Plan" means any (a) nonqualified deferred compensation or
retirement plan or arrangement, (b) qualified defined contribution retirement
plan or arrangement which is an Employee Pension Benefit Plan, (c) qualified
defined benefit retirement plan or arrangement which is an Employee Pension
Benefit Plan (including any Multiemployer Plan), or (d) Employee Welfare Benefit
Plan or fringe benefit or other retirement, bonus, or incentive plan or program,
including without limitation any stock option or other equity-based plan or
severance plan or arrangement.
"Employee Pension Benefit Plan" has the meaning set forth in ERISA Section
3(2).
"Employee Welfare Benefit Plan" has the meaning set forth in ERISA Section
3(1).
"Environmental Requirements" means all federal, state, local and foreign
statutes, regulations, ordinances and similar provisions having the force or
effect of law, all judicial and administrative orders and determinations, and
all common law, concerning pollution or protection of the environment and public
health and safety, including without limitation all those relating to the
presence, use, production, generation, handling, transportation, treatment,
storage, disposal, distribution, labeling, testing, processing, discharge,
release, threatened release, control or cleanup of any hazardous materials,
substances or wastes, chemical substances or mixtures, pesticides, pollutants,
contaminants, toxic chemicals, petroleum products or byproducts, asbestos,
polychlorinated biphenyls, noise or radiation.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Estimated Closing Date Adjusted Net Working Capital" has the meaning set
forth in Section 2(f)(i).
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"Estimated Cash Purchase Price" means the amount of cash set forth in
clause (i) of the first sentence of Section 2(b), before any adjustment or
increase referred to in such clause, or, in the event the All Cash Alternative
becomes applicable, the amount of cash set forth in the penultimate sentence of
Section 2(b), in either case increased by (i) any excess of Estimated Closing
Date Adjusted Net Working Capital over the Closing Date Adjusted Net Working
Capital Target or decreased by any excess of the Closing Date Adjusted Net
Working Capital Target over Estimated Closing Date Adjusted Net Working Capital
and (ii) the amount of the purchase price increase (if any) provided in Section
6(b).
"Existing Birds Eye License Agreement" means the Trademark License
Agreement, dated December 27, 1993, by and between the Seller and Kraft (a part
of Kraft's rights under which have been assigned by it to Orange-Co, Inc.).
"Farmers Processing" means Farmers Processing, Inc., a California
corporation.
"FDC Act" means the Federal Food, Drug and Cosmetic Act, as amended from
time to time.
"Fiduciary" has the meaning set forth in ERISA Section 3(21).
"Financial Statements" has the meaning set forth in Section 3(b)(v).
"Foreign Plans" has the meaning set forth in Section 3(b)(xxiv).
"GAAP" means United States generally accepted accounting principles as in
effect from time to time.
"Governmental Entities" has the meaning set forth in Section 3(b)(vii).
"Hart-Scott-Rodino Act" means the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended from time to time.
"Holding Company" has the meaning set forth in the preface.
"Holding Company Common Stock" means any share of the Common Stock, no par
value per share, of Holding Company.
"Income Tax" means any federal, state, local or foreign income tax,
including any interest, penalty, or addition thereto, whether disputed or not.
"Income Tax Return" means any return, declaration, report, claim for
refund, or information return or statement relating to Income Taxes, including
any schedule or attachment thereto, and including any amendment thereof.
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"Indemnified Party" means a party that is entitled to indemnification from
another party pursuant to Section 8.
"Indemnifying Party" means a party that is required to provide
indemnification to another party pursuant to Section 8.
"Independent Firm" has the meaning set forth in Section 2(f)(ii)(A).
"Intellectual Property" means (a) all inventions (whether patentable or
unpatentable and whether or not reduced to practice), all improvements thereto,
and all patents, patent applications, and patent disclosures, together with all
reissuances, continuations, continuations-in-part, revisions, extensions, and
reexaminations thereof, (b) all trademarks, service marks, trade dress, logos,
trade names, and corporate names, together with all translations, adaptations,
derivations, and combinations thereof and including all goodwill associated
therewith, and all applications, registrations, and renewals in connection
therewith, (c) all copyrightable works, all copyrights, and all applications,
registrations, and renewals in connection therewith, (d) all applications,
registrations, and renewals in connection therewith, (e) all trade secrets and
confidential business information (including ideas, research and development,
know-how, formulas, compositions, manufacturing and production processes and
techniques, technical data, designs, drawings, specifications, customer and
supplier lists, pricing and cost information, and business and marketing plans
and proposals), (f) all computer software (including data and related
documentation), (g) all other proprietary rights, and (h) all copies and
tangible embodiments thereof (in whatever form or medium).
"IRB" means the Village of Fairwater, Wisconsin, Tax Exempt Adjustable Mode
Industrial Development Refunding Revenue Bonds, Series 1990, for the benefit of
DFVC in the original principal amount of $2.45 million.
"IRB Guarantee" means the Guarantee Agreement, dated May 1, 1997, between
the Seller and Wachovia Bank of North Carolina with respect to the IRB.
"Knowledge of the Seller" means (i) the actual knowledge, without special
investigation, of William McManaman, the Vice President, Finance and Chief
Financial Officer of the Seller, or Jeffrey P. Shaw, Thomas E. Osetek, Richard
L. Claiborn or Byron Johnson, the President, Senior Vice President, Sales and
Marketing, Vice President, Finance and Vice President, Manufacturing,
respectively, of DFVC, and (ii) the actual knowledge, without independent
investigation, of the Seller which arises from the review of an executed
certificate of each of the Persons described above under (i) regarding the
accuracy of the representations and warranties of the Seller contained in
Section 3 of the July 16, 1998 draft of this Agreement, which certificates were
distributed by the Seller prior to the date of this Agreement to such Persons
along with the representations and warranties of the Seller contained in Section
3 of the July 16, 1998 draft of this Agreement and the July 14, 1998 draft of
the Seller Disclosure Schedule.
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"Kraft" has the meaning set forth in the preface.
"Leased Premises" has the meaning set forth in Section 3(b)(x)(B).
"Mexican Premises" means the real property owned by Birds Eye Mexico and
the facilities thereon.
"Most Recent Balance Sheet" means the statement of assets and liabilities
with respect to the fiscal year ended May 31, 1998 contained in the Financial
Statements.
"Most Recent Fiscal Year End" has the meaning set forth in Section 3(b)(v).
"Multiemployer Plan" has the meaning set forth in ERISA Section 3(37).
"Non-Compete Businesses" has the meaning set forth in Section 6(g).
"Non-Compete Period" has the meaning set forth in Section 6(g).
"Objection Notice" has the meaning set forth in Section 2(f)(ii)(A).
"Owned Premises" has the meaning set forth in Section 3(b)(x)(A).
"Parties" has the meaning set forth in the preface.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization or a Governmental Entity.
"Proprietary Information" means "Proprietary Information" as such term is
used in the Confidentiality Agreement.
"Purchase Price" has the meaning set forth in Section 2(b).
"Records Retention Date" has the meaning set forth in Section 6(d).
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"Section 338(h)(10) Election" has the meaning set forth in Section 6(b).
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"Security Interest" means any mortgage, pledge, lien, encumbrance, charge,
or other security interest, other than (a) mechanic's, materialmen's and similar
liens being contested in good faith if the related payment obligation is then
due and payable, (b) liens for taxes not yet due and payable or for taxes that
the taxpayer is contesting in good faith, (c) purchase money liens and liens
securing rental payments under capital lease arrangements, (d) other liens
arising in the ordinary course of business and not incurred in connection with
the borrowing of money and (e) solely with respect to owned real property, other
encumbrances which, in the aggregate, do not materially adversely affect the
value of such real property or the owner's ability to use such real property for
its intended purpose.
"Seller" has the meaning set forth in the preface.
"Seller Disclosure Schedule" means the schedule entitled "Seller Disclosure
Schedule" heretofore delivered by the Seller, which schedule is arranged in
sections corresponding to the lettered and numbered subsections contained in
Section 3.
"Seller Indemnitee" has the meaning set forth in Section 8(c).
"Seller Plans" has the meaning set forth in Section 3(b)(vii).
"Seller's Dean Trademark" means the bird-on-mailbox logo of the Seller,
U.S. Reg. Nos. 1,342,947, 1,343,368, 1,500,715, 1,519,979 and 1,953,924.
"Seller's Retirement Plan" has the meaning set forth in Section 6(e)(iv).
"Seller's Savings Plan" has the meaning set forth in Section 3(a)(vii).
"Seller's Target-Related Intellectual Property" has the meaning set forth
in Section 3(a)(vi).
"Silage-Related Litigation" means (i) Southern Michigan Beef Company and
Decaturland Investments vs. DFVC, Case No. 97-42-482-CK-H (State of Michigan in
the Circuit Court for the County of Van Buren), (ii) Steve Hovander and Star
Hovander d/b/a Hovander Farms vs. DFVC, No. 97-2-00707-7 (Superior Court of the
State of Washington in and for the County of Whatcom) and (iii) Richard J. Cipri
vs. DFVC et al., File No. 92-37-137-CE-B (State of Michigan in the Circuit Court
for the County of Van Buren) and any other litigation arising out of the same
facts and circumstances as such litigation.
"Subsidiary" means, with respect to any Person, any corporation, limited
liability company, partnership, association or other business entity of which
(i) if a corporation, a majority of the total voting power of shares of stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited
liability company, partnership, association or other business
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entity, a majority of the partnership or other similar ownership interest
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more Subsidiaries of that Person or a combination thereof. For
purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a limited liability company, partnership, association or
other business entity if such Person or Persons shall be allocated a majority of
limited liability company, partnership, association or other business entity
gains or losses or shall be or control any managing director or general partner
of such limited liability company, partnership, association or other business
entity.
"SWDA" has the meaning set forth in Section 3(b)(xxvi)(E).
"Targets" has the meaning set forth in the preface.
"Targets' Dean-Related Packaging/Labels" means all of the packaging and
label inventory (including label inventory affixed to finished goods) of the
Targets that exists (or which has been ordered by the Targets but not yet
delivered) at the Closing Date which bears the Seller's Dean Trademark.
"Targets' Intellectual Property" has the meaning set forth in Section
3(b)(xii)(B).
"Target Shares" means all of the outstanding DFVC Common Stock and Birds
Eye Mexico Series A Stock and Birds Eye Mexico Series B Stock.
"Taxes" means all taxes, charges, fees, premiums, levies, penalties or
other assessments imposed by any United States federal, state or local or
foreign taxing authority, including, but not limited to, Income Taxes, franchise
or capital stock taxes, sales taxes, use taxes, gross receipts taxes, real or
personal property taxes, excise taxes, transfer taxes, payroll, withholding,
social security or other taxes (including taxes or premiums for unemployment
insurance or similar governmental impositions), including any interest,
penalties or additions attributable thereto.
"Third Party Claims" shall mean any claims for Damages which are asserted
or threatened by a Person, other than a Party or a successor or assign of a
Party, against any Indemnified Party or to which an Indemnified Party is subject
from such a Person.
"Threshold Amount" has the meaning set forth in Section 8(d)(ii).
"Title Insurance Commitments" has the meaning set forth in Section
3(b)(x)(D).
"WARN Act" has the meaning set forth in Section 6(e)(vi).
2. Purchase and Sale of Target Shares.
(a) Basic Transaction. On and subject to the terms and conditions of
this Agreement, the Buyer agrees that it will purchase from the Seller and Dean
International, and the
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Seller agrees that it will (and will cause Dean International to) sell to the
Buyer, for the consideration specified in Section 2(b), all of the outstanding
capital stock of DFVC and Holding Company, and the Seller agrees that in
connection with such purchase and sale it will (i) transfer all of the Seller's
right, title and interest in and to Seller's Target-Related Intellectual
Property to the Buyer, subject to the Closing Date Birds Eye License Agreement
and (ii) assign to the Buyer Seller's rights as licensor under the Existing
Birds Eye License Agreement. It is expressly agreed by the Parties that the
Buyer may choose to have title to some or all of such Target Shares and Seller's
Target-Related Intellectual Property and/or the Existing Birds Eye License
Agreement conveyed to one or more Subsidiaries of the Buyer rather than to the
Buyer, provided that each such Subsidiary and the particular assets to which it
is to take title are identified to the Seller at least 15 days prior to the
Closing Date. In such event, except to the extent the context otherwise
requires, each of the references to the Buyer herein (including without
limitation in the representations and warranties of the Buyer in Section 4)
shall be a reference not only to the Buyer but also to each such Subsidiary.
(b) Purchase Price and Transfer of Consideration. The consideration
referred to in Section 2(a) is (i) $390,000,000 in cash, adjusted as provided in
Section 2.2(f)(ii) and increased by the amount of the purchase price increase
(if any) provided in Section 6(b), and (ii) the Aseptic Business of the Buyer
(collectively, the "Purchase Price"). For the convenience of the Parties, any
cash payment will be made solely to the Seller, which will be responsible for
forwarding to Dean International its portion of such cash payment. It is
expressly agreed by the Parties that the Seller may choose to have the Aseptic
Business conveyed to one or more subsidiaries of the Seller rather than to the
Seller, provided that each such Subsidiary and the particular assets to which it
is to take title are identified to the Buyer at least 15 days prior to the
Closing Date. Notwithstanding the foregoing, unless the Closing has occurred
prior to September 22, 1998 or the Parties have otherwise agreed in writing (in
their respective sole discretion), and unless prior to such date all applicable
waiting periods (and any extensions thereof) under the Hart-Scott-Rodino Act
with respect to the transfer of the Aseptic Business to the Seller shall have
expired or otherwise been terminated (in either case without threat by any
Governmental Entity of any action, suit or proceeding described in Section
7(a)(iv) based on any antitrust statute, regulation, rule or other restriction),
then effective on such date the consideration referred to in Section 2(a) and
the "Purchase Price" shall each be $523,000,000 in cash, adjusted as provided in
Section 2.2(f)(ii) and increased by the amount of the purchase price increase
(if any) provided in Section 6(b) (the "All Cash Alternative"). If the All Cash
Alternative becomes applicable, the Asset Transfer Agreement shall terminate in
accordance with the terms thereof.
(c) Assumption of Certain Liabilities. In connection with the purchase
and sale contemplated herein, the transferee of Seller's rights as licensor
under the Existing Birds Eye License Agreement shall assume Seller's obligations
thereunder (and, if such transferee is a Subsidiary of the Buyer, the Buyer
shall guarantee such Subsidiary's performance of the assumed obligations).
(d) The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Kirkland & Ellis in
Chicago, Illinois, commencing
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at 9:00 a.m. local time on the second business day following the satisfaction or
waiver of all conditions to the obligations of the Parties to consummate the
transactions contemplated hereby (other than conditions with respect to actions
the respective Parties will take at the Closing itself) or such other date and
time as the Parties may mutually determine (the date and time of the Closing,
the "Closing Date").
(e) Deliveries at the Closing. At the Closing, (i) the Seller will
deliver to the Buyer the various certificates, instruments and documents
referred to in Section 7(a), (ii) the Buyer will deliver to the Seller the
various certificates, instruments and documents referred to in Section 7(b),
(iii) the Seller and Dean International will deliver or cause to be delivered to
the Buyer stock certificates representing all of the Holding Company Common
Stock and all of the Target Shares owned by the Seller, endorsed in blank or
accompanied by duly executed assignment documents, (iv) the Buyer will pay to
the Seller in cash, by wire transfer or delivery of other immediately available
funds, an amount equal to the Estimated Cash Purchase Price and (v) if the All
Cash Alternative has not become applicable, the transfer of the Aseptic Business
to the Seller pursuant to the Asset Transfer Agreement shall be consummated.
(f) Closing Date Adjusted Net Working Capital Adjustment.
(i) Estimated Closing Date Adjusted Net Working Capital. At least
3 business days in advance of the Closing, the Seller shall prepare in
good faith and deliver to the Buyer an estimate of Closing Date
Adjusted Net Working Capital ("Estimated Closing Date Adjusted Net
Working Capital").
(ii) Closing Date Adjusted Net Working Capital.
(A) Determination of Closing Date Adjusted Net Working
Capital. Within 45 days of the Closing Date, the Buyer and its
independent auditors shall deliver to the Seller a statement of
Closing Date Adjusted Net Working Capital (the "Closing Date
Adjusted Net Working Capital Statement"). The Buyer and its
auditors will (i) make available to the Seller and its agents,
attorneys and accountants upon reasonable advance notice all
records and work papers necessary to understand the Closing Date
Adjusted Net Working Capital Statement and to calculate Closing
Date Adjusted Net Working Capital and (ii) allow the Seller and
its agents, attorneys and accountants upon reasonable advance
notice to interview any Buyer or Target personnel or independent
auditor personnel significantly involved in the preparation of
the Closing Date Adjusted Net Working Capital Statement. If the
Seller disagrees with the computation of Closing Date Adjusted
Net Working Capital contained in the Closing Date Adjusted Net
Working Capital Statement, the Seller may, within 30 days after
receipt of the Closing Date Adjusted Net Working Capital
Statement, deliver a notice (the "Objection Notice") to the Buyer
setting forth the objections of the Seller and, to the
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extent reasonably possible, Closing Date Adjusted Net Working
Capital as determined by the Seller. The Buyer and the Seller
will use reasonable efforts to resolve any disagreements as to
the computation of Closing Date Adjusted Net Working Capital, but
if they do not obtain a final resolution within 15 days after the
Buyer has received the Objection Notice, the Buyer and the Seller
will jointly retain Arthur Andersen LLP, or, if such firm is
unwilling to serve, another independent accounting firm of
recognized national standing that is not a public accountant of
the Buyer, the Seller or any of their respective Affiliates (an
"Independent Firm") to resolve any remaining disagreements. If
the Buyer and the Seller are unable to agree on the choice of an
Independent Firm, the choice will be selected by lot from those
top five accounting firms that are Independent Firms or, if no
top five accounting firm is an Independent Firm or is willing to
serve, selected by lot from those Independent Firms that are
willing to serve. The Buyer and the Seller will direct the chosen
Independent Firm to render a determination within 30 days of its
retention and the Buyer and the Seller and their respective
agents will cooperate with the chosen Independent Firm during its
engagement. The chosen Independent Firm will consider only those
issues related to the determination of Closing Date Adjusted Net
Working Capital set forth in the Objection Notice which the Buyer
and the Seller have been unable to resolve. The determination of
the chosen Independent Firm will be based on and consistent with
the definition of Closing Date Adjusted Net Working Capital
included herein. The determination of the chosen Independent Firm
will be conclusive and binding upon the Buyer and the Seller. In
any proceeding described above in this paragraph, all of the
costs and expenses of the Buyer (including reasonable attorneys'
fees and expenses) shall be borne by the Buyer, all of the costs
and expenses of the Seller (including reasonable attorneys' fees
and expenses) shall be borne by the Seller and all costs and
expenses of the chosen Independent Firm shall be borne by the
Buyer in the event that the Closing Date Adjusted Net Working
Capital reflected in the Closing Date Adjusted Net Working
Capital Statement, as adjusted to reflect the resolution by the
Parties of any objections of the Seller to the Closing Date
Adjusted Net Working Capital Statement, is lower than Closing
Date Adjusted Net Working Capital; otherwise the Seller shall
bear all the costs and expenses of the chosen Independent Firm.
(B) Payment. If Closing Date Adjusted Net Working Capital
exceeds Estimated Closing Date Adjusted Net Working Capital, the
Buyer shall pay to the Seller within 5 business days of the final
determination of Closing Date Adjusted Net Working Capital the
amount of such excess, which shall be payable in cash by wire
transfer or delivery of other immediately available funds. If
Closing Date Adjusted Net Working Capital
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is less than Estimated Closing Date Adjusted Net Working Capital,
the Seller shall pay to the Buyer within 5 business days of the
final determination of Closing Date Adjusted Net Working Capital
the amount of such deficit, which shall be payable in cash by
wire transfer or delivery of other immediately available funds.
No interest shall be paid with respect to any adjustment amount
due and timely paid pursuant to this subsection.
3. Representations and Warranties of the Seller.
(a) Representations and Warranties Concerning the Seller, Dean
International and Holding Company. The Seller represents and warrants to the
Buyer that, subject in the case of the representations and warranties in each
particular section below to the exceptions set forth in the corresponding
section of the Seller Disclosure Schedule:
(i) Organization. Each of the Seller, Dean International and Holding
Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. Holding Company is duly
authorized to conduct business and is in good standing under the laws of
each jurisdiction where such qualification is required. Holding Company has
corporate power and corporate authority to carry on the businesses in which
it is engaged and to own and use the properties owned or used by it.
(ii) Authorization of Transaction. The Seller has full corporate power
and corporate authority to execute and deliver this Agreement and all other
agreements contemplated hereby to which the Seller is or is to be a party
and to perform its obligations hereunder and thereunder. The board of
directors of the Seller has duly approved this Agreement and all other
agreements contemplated hereby to which the Seller is or is to be a party
and has duly authorized the Seller's execution and delivery of this
Agreement and all such other agreements and the consummation of the
transactions on the part of the Seller contemplated hereby and thereby.
This Agreement and all such other agreements constitute the valid and
legally binding obligations of the Seller, enforceable in accordance with
their respective terms, except as enforceability may be limited by
bankruptcy or other laws affecting creditor's rights generally and
limitations on the availability of equitable remedies. Dean International
has full corporate power and corporate authority to sell the Target Shares
of Holding Company as contemplated by this Agreement. The board of
directors of Dean International, and the Seller as the sole stockholder of
Dean International, have duly approved such sale.
(iii) Noncontravention. Neither the execution and delivery of this
Agreement and the other agreements contemplated hereby to which the Seller
is or is to be a party, nor the consummation of the transactions on the
part of the Seller or Dean International contemplated hereby and thereby,
(i) violates any constitution,
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statute, regulation, rule, injunction, judgment, order, decree, ruling,
charge or other restriction of any government, governmental agency or court
to which the Seller, Dean International or Holding Company is subject
(except that no representation or warranty is made with respect to any
antitrust statute, regulation, rule or other restriction) or any provision
of the charter or bylaws of the Seller, Dean International or Holding
Company or (ii) conflicts with, results in a breach of, constitutes a
default under, results in the acceleration of, creates in any party the
right to accelerate, terminate, modify or cancel, or requires any notice
under, any agreement, contract, lease, license, instrument or other
arrangement to which the Seller, Dean International or Holding Company is a
party or by which any of them is bound or to which any of their assets is
subject (or results in the imposition of any Security Interest upon any of
their assets). Neither the Seller, Dean International nor Holding Company
needs to give any notice to, make any filing with or obtain any
authorization, consent or approval of, any government or governmental
agency in order for the Parties to consummate the transactions contemplated
by this Agreement, other than in connection with the provisions of the
Hart-Scott-Rodino Act and the Securities Exchange Act, and other than any
other notice, filing, authorization, consent or approval that has been
given, made or obtained.
(iv) Holding Company Status.
(A) Holding Company was formed on June 4, 1998 solely for the
purpose of holding capital stock of Birds Eye Mexico. Holding Company
has no asset other than capital stock of Birds Eye Mexico and cash,
has conducted no business or operations, has incurred no liabilities
or obligations other than expenses related to its incorporation and
its continuing corporate existence and has not had any employees.
(B) The entire authorized capital stock of Holding Company
consists of 200 shares of Holding Company Common Stock, 100 of which
are issued and outstanding and none of which are held in treasury.
Such outstanding shares are owned of record by Dean International,
free and clear of any restrictions on transfer (other than any
restrictions under the Securities Act and state securities laws),
Security Interests or purchase rights. Neither the Seller, Dean
International nor Holding Company is a party to any option, warrant,
purchase right or other contract or commitment that could require any
of them to issue, sell, transfer or otherwise dispose of any capital
stock of Holding Company (other than this Agreement). Neither the
Seller nor Dean International is a party to any voting trust, proxy or
other agreement or understanding with respect to the voting of any
capital stock of Holding Company. The section of the Seller Disclosure
Schedule corresponding to this Section 3(a)(iv)(B) lists the directors
and officers of Holding Company.
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(C) The section of the Seller Disclosure Schedule corresponding
to this Section 3(a)(iv)(C) lists all state, local and foreign Income
Tax Returns filed with respect Holding Company since its formation,
indicates which of those Income Tax Returns have been audited, and
indicates which of those Income Tax Returns are currently the subject
of audit. Holding Company is not a party to any tax allocation or
sharing agreement which allocates tax liability to Holding Company
independently of the allocation elected under Treasury Regulation
Section 1.1552-1. Since its formation, Holding Company has not been a
member of an Affiliated Group filing a consolidated U.S. federal
Income Tax Return (other than a group the common parent of which was
the Seller), and Holding Company has no liability for the taxes of any
Person (other than any of the Seller and its Subsidiaries) under Reg.
Section 1.1502-6 (or any similar provision of state, local or foreign
law), as a transferee or successor, by contract or otherwise.
(D) Holding Company has timely filed all tax and information
returns required to be filed and has paid or has accrued on its books
and set up an adequate reserve for the payment of all Taxes reflected
on such returns required to be paid in respect of the periods covered
by such returns and has accrued on its books and set up an adequate
reserve for the payment of all Taxes anticipated to be payable in
respect of periods through the end of the calendar month preceding the
date hereof. Holding Company is not delinquent in the payment of any
Taxes, assessment or governmental charge. No deficiencies for any
Taxes have been proposed, asserted or assessed against Holding Company
that have not been resolved or settled, and no requests for waivers of
the time to assess any Taxes against Holding Company are pending or
have been agreed to. Holding Company is not currently the subject of
an audit or examination of any of its tax returns by the Internal
Revenue Service or any state, municipal or other taxing authority.
Holding Company is not a party to any action or proceeding by any
Governmental Entities for the assessment or collection of Taxes.
Deferred taxes of Holding Company have been accounted for in
accordance with GAAP.
(v) Brokers' Fees. Neither the Seller nor any of its Subsidiaries has
any liability or obligation to pay any fees or commissions to any broker,
finder or agent with respect to the transactions contemplated by this
Agreement for which the Buyer or any of its Subsidiaries (including the
Targets and Holding Company subsequent to the Closing) could become liable
or obligated.
(vi) Seller's Target-Related Intellectual Property. The section of the
Seller Disclosure Schedule corresponding to this Section 3(a)(vi)
identifies each patent or trademark registration or pending application
which has been issued to or is filed by
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the Seller with respect to any of the Seller's Intellectual Property, in
each case that is used by either Target in the conduct of its business
("Seller's Target-Related Intellectual Property"). The Seller has made
available to the Buyer correct and complete copies of all such patents,
registrations and applications. No trade name or unregistered trademark
owned by the Seller is used by either of the Targets in connection with its
business. With respect to each item of Seller's Target-Related Intellectual
Property (in the case of each such item other than a United States item, to
the Knowledge of the Seller): (i) Seller possesses all right, title and
interest in and to the item, free and clear of any Security Interest,
license, agreement, consent or other restriction which adversely affects
the use or ownership of such item; (ii) the item is not subject to any
outstanding injunction, judgment, order, decree, ruling or charge; and
(iii) no action, suit, proceeding, hearing, investigation, charge,
complaint, claim or demand is pending or, to the Knowledge of the Seller,
threatened against the Seller or any of its Subsidiaries which challenges
the legality, validity, enforceability, use or ownership of the item.
(vii) Seller's Target-Related Employee Benefits. The section of the
Seller Disclosure Schedule corresponding to this Section 3(a)(vii) lists
each Employee Benefit Plan that the Seller maintains (other than any
severance arrangement for which neither the Buyer nor any of its
Subsidiaries (including the Targets and Holding Company subsequent to the
Closing) could become liable or obligated) under which any employee of
either of the Targets is provided coverage (the "Seller Plans"). Seller has
made available to Buyer true and correct copies of all such Employee
Benefit Plans. The Dean Foods Company Savings and Investment Plan (the
"Seller's Savings Plan") has previously received a determination letter
from the Internal Revenue Service that the plan is qualified under Section
401(a) of the Code and nothing has occurred since the date of such
determination that would materially and adversely affect the qualification
of such plan. The Seller's Savings Plan has been maintained and
administered in compliance in all material respects with ERISA and the
Code.
(b) Representations and Warranties Concerning the Targets. The Seller
represents and warrants to the Buyer that, subject in the case of the
representations and warranties in each particular section below to the
exceptions set forth in the corresponding section of the Seller Disclosure
Schedule:
(i) Organization, Qualification, and Power. Each of the Targets is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization. Each of the Targets is duly authorized to
conduct business and is in good standing under the laws of each other
jurisdiction where such qualification is required. Each of the Targets has
corporate (or limited liability company, as applicable) power and corporate
(or limited liability company, as applicable) authority to carry on the
businesses in which it is engaged and to own and use the
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properties owned or used by it. The section of the Seller Disclosure
Schedule corresponding to this Section 3(b)(i) lists the directors and
officers of each of the Targets.
(ii) Target Shares. The entire authorized capital stock of DFVC
consists of 3,000 shares of DFVC Common Stock, 1,000 of which are issued
and outstanding and none of which are held in treasury. The entire
authorized capital stock of Birds Eye Mexico consists of (x) 1,000 shares
of Birds Eye Mexico Series A Stock, all of which are issued and outstanding
and none of which are held in treasury, and (y) 5,000 shares of Birds Eye
Mexico Series B Stock, all of which are issued and outstanding and none of
which are held in treasury. Such outstanding shares are owned of record as
set forth in the section of the Seller Disclosure Schedule corresponding to
this Section 3(b)(ii), in each case free and clear of any restrictions on
transfer (other than any restrictions under the Securities Act and state
securities laws), Security Interests or purchase rights. Neither the
Seller, Dean International, Holding Company nor either of the Targets is a
party to any option, warrant, purchase right or other contract or
commitment that could require any of them to issue, sell, transfer, or
otherwise dispose of any capital stock of either of the Targets (other than
this Agreement). Neither the Seller, Dean International nor Holding Company
is a party to any voting trust, proxy or other agreement or understanding
with respect to the voting of any capital stock of either of the Targets.
(iii) Noncontravention. The consummation of the transactions
contemplated by this Agreement do not (i) violate any constitution,
statute, regulation, rule, injunction, judgment, order, decree, ruling,
charge or other restriction of any government, governmental agency or court
to which either of the Targets is subject (except that no representation or
warranty is made with respect to any antitrust statute, regulation, rule or
other restriction) or any provision of the charter or bylaws (or similar
governing documents) of either of the Targets or (ii) conflict with, result
in a breach of, constitute a default under, result in the acceleration of,
create in any party the right to accelerate, terminate, modify or cancel,
or require any notice under, any material agreement, contract, lease,
license, instrument or other arrangement to which either of the Targets is
a party or by which either of them is bound or to which any of their assets
is subject (or result in the imposition of any Security Interest upon any
of their assets). Neither of the Targets needs to give any notice to, make
any filing with or obtain any authorization, consent or approval of, any
government or governmental agency in order for the Parties to consummate
the transactions or perform the obligations contemplated by this Agreement,
other than in connection with the provisions of the Hart-Scott-Rodino Act,
and other than any notice, filing, authorization, consent or approval that
has been given, made or obtained.
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(iv) Subsidiaries. Neither of the Targets has any Subsidiary. Neither
of Targets owns any interest in any other corporation, partnership, joint
venture or other business entity, other than the ownership by DFVC of
shares of Birds Eye Mexico Series B Stock and of one-half of the capital
stock of Farmers Processing.
(v) Financial Statements. The financial statements previously
delivered to the Buyer (collectively, the "Financial Statements"),
consisting of an unaudited statement of assets and liabilities (and notes
thereto) as of May 31, 1998 (the "Most Recent Fiscal Year End") and
unaudited income and cash flows (and notes thereto) for the fiscal years
ended May 31, 1998 and May 25, 1997 for the Targets, have been derived from
the internal books and records of the Targets, which have been maintained
in a manner consistent with the accounting practices of the Seller, and the
financial information reflected in the Financial Statements is included in
the Seller's consolidated financial statements which are prepared in
accordance with GAAP consistently applied. The Seller makes no other
representation or warranty with respect to the Financial Statements.
(vi) Events Subsequent to Most Recent Fiscal Year End. Since the Most
Recent Fiscal Year End, there has not been any material adverse change in
the business, operations or financial condition of the Targets taken as a
whole. Without limiting the generality of the foregoing, since that date:
(A) neither of the Targets has sold, leased, transferred or
assigned any material assets, tangible or intangible, except for sales
of inventory in the ordinary course of its business;
(B) no party (including either of the Targets) has accelerated,
terminated, made material modifications to or canceled any material
agreement, contract, lease or license to which either of the Targets
is a party or by which either of them is bound;
(C) neither of the Targets has made any material capital
expenditures materially in excess of the budgeted amount for capital
expenditures previously provided to the Buyer by the Seller;
(D) neither of the Targets has made any material capital
investment in, or any material loan to, any other Person;
(E) there has not been any increase in the obligations owed by
either of the Targets for borrowed money;
(F) neither of the Targets has mortgaged, pledged or subjected to
any Security Interest any of its assets or properties;
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(G) neither of the Targets has waived or released any of its
material rights;
(H) neither of the Targets has granted any license or sublicense
of any material rights under or with respect to any of its
Intellectual Property;
(I) there has been no change made or authorized in the charter or
bylaws (or similar governing documents) of either of the Targets;
(J) neither of the Targets has issued, sold or otherwise disposed
of any of its capital stock, or granted any options, warrants or other
rights to purchase or obtain (including upon conversion, exchange or
exercise) any of its capital stock;
(K) neither of the Targets has experienced any material damage,
destruction or loss (whether or not covered by insurance) to its
property;
(L) neither of the Targets has made any loan to, or entered into
any other transaction with, any of its directors or officers other
than the advance or reimbursement of reasonable business expenses
incurred or to be incurred in the ordinary course of business;
(M) neither of the Targets has entered into any employment
contract with any of its directors or officers or any collective
bargaining agreement, written or oral, or modified the terms of any
existing such contract or agreement;
(N) neither of the Targets has granted any increase in the
compensation payable or to become payable to any of its directors or
officers, except for annual increases in the ordinary course of
business consistent with past practice;
(O) neither of the Targets has adopted, amended, modified or
terminated any bonus, profit-sharing, incentive, severance or other
plan, contract or commitment for the benefit of any of its directors
and officers (or taken any such action with respect to any other
Employee Benefit Plan);
(P) neither of the Targets has made any other material change in
employment terms for any of its directors or officers outside the
ordinary course of its business;
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(Q) neither of the Targets has made any change in its accounting
principles for financial reporting;
(R) neither of the Targets has experienced any material adverse
change in its business, operations or financial condition; and
(S) neither of the Targets has committed to any of the foregoing.
(vii) Legal Compliance. Each of the Targets has complied in all
material respects with all applicable laws (including rules, regulations,
codes, plans, injunctions, judgments, orders, decrees, rulings and charges
thereunder) of federal, state, local and foreign governments (and all
departments, agencies and political subdivisions thereof) (collectively,
"Governmental Entities"). No material investigation, review, inquiry or
proceeding by any Governmental Entity with respect to either of the Targets
is pending or, to the Knowledge of the Seller, threatened. None of the
Targets currently is subject to any agreement, contract or decree with any
Governmental Entity arising out of any current or previously existing
violations or alleged violations.
(viii) Regulatory Matters. Each of the Targets possesses all
regulatory permits, licenses and other governmental authorizations and
approvals which it is required by applicable law to obtain, all of which
have been duly obtained and are in full force and effect; each of the
Targets is in compliance in all material respects with the respective terms
and conditions thereof, and there are no material proceedings pending or,
to the Knowledge of the Seller, threatened seeking to revoke, cancel or
suspend, or to adversely modify, any thereof. The consummation of the
transactions contemplated hereby will not result in the revocation,
cancellation, suspension or adverse modification of any thereof.
(ix) Tax Matters.
(A) The section of the Seller Disclosure Schedule corresponding
to this Section 3(b)(ix)(C) lists all state, local and foreign Income
Tax Returns filed with respect to either of the Targets for taxable
periods ended on or after May 28, 1995, indicates which of those
Income Tax Returns have been audited, and indicates which of those
Income Tax Returns are currently the subject of audit.
(B) Neither of the Targets is a party to any tax allocation or
sharing agreement which allocates tax liability to the Targets
independently of the allocation elected under Treasury Regulation
Section 1.1552-1. With respect to taxable periods beginning on or
after January 1, 1988, neither of the Targets (A) has been a member of
an Affiliated Group filing a
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consolidated U.S. federal Income Tax Return (other than a group the
common parent of which was the Seller) or (B) has any liability for
the taxes of any Person (other than any of the Seller and its
Subsidiaries) under Reg. Section 1.1502-6 (or any similar provision of
state, local or foreign law), as a transferee or successor, by
contract, or otherwise.
(C) Each of DFVC and Holding Company is a member of a selling
consolidated group (within the meaning of Section 338(h)(10)(A)(i) of
the Code) of which the Seller is the common parent.
(D) The Targets have each timely filed all tax and information
returns required to be filed and paid (or the Seller has paid or
caused to be paid on behalf of the Targets), or have accrued on their
respective books and set up adequate reserves for the payment of, all
Taxes reflected on such returns or required to be paid in respect of
the periods covered by such returns and have accrued on their
respective books and set up an adequate reserve for the payment of all
Taxes anticipated to be payable in respect of periods through the end
of the calendar month preceding the date hereof. Neither Target is
delinquent in the payment of any Taxes, assessment or governmental
charge. No deficiencies for any Taxes have been proposed, asserted or
assessed against either Target that have not been resolved or settled,
and no requests for waivers of the time to assess any Taxes against
either Target are pending or have been agreed to. Neither of Targets
is currently the subject of an audit or examination of any of its tax
returns by the Internal Revenue Service or any state, municipal or
other taxing authority. Neither Target is a party to any action or
proceeding by any Governmental Entity for the assessment or the
collection of Taxes. Deferred taxes of each Target have been accounted
for in accordance with GAAP.
(E) Each of the Targets has withheld amounts from its employees
and stockholders in compliance with the tax withholding provisions of
applicable federal, state and local laws, has filed all federal, state
and local returns and reports for all periods for which such returns
or reports are due with respect to income tax withholding, social
security, unemployment taxes, income and other Taxes (and all payments
or deposits with respect to such taxes have been timely made) and has
notified all employees and stockholders of their obligations to file
all forms, statements and reports with it in accordance with
applicable federal, state and local tax laws and have taken reasonable
steps to insure that such employees and stockholders have filed all
such forms, statements and reports with it.
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(x) Real Property.
(A) The section of the Seller Disclosure Schedule corresponding
to this Section 3(b)(x)(A) lists all real property that either of the
Targets owns (the "Owned Premises"). With respect to each such parcel
of owned real property:
i. the identified owner has good and marketable title to the
parcel of real property, free and clear of any Security Interest,
easement, covenant or other restriction, except for Security
Interests, easements, covenants and other restrictions which have
been disclosed by the Title Insurance Commitment for the
respective real property and other easements and restrictions
existing generally with respect to properties of a similar
character which do not affect materially and adversely the
current use, occupancy or value, or the marketability of title,
of the property subject thereto (provided that for purposes of
indemnification pursuant to Section 8 the representations and
warranties contained in this Section 3(b)(x)(A)(i) shall be
deemed made as if the items described on Exhibit C were not
included in the Title Commitments);
ii. there are no pending or, to the Knowledge of the Seller,
threatened condemnation proceedings, lawsuits or administrative
actions relating to the property or other matters affecting
materially and adversely the current use, occupancy or value
thereof;
iii. there are no outstanding options or rights of first
refusal to purchase the parcel of real property, or any portion
thereof or interest therein; and
iv. there are no parties (other than the respective Target)
in possession of the parcel of real property, other than tenants
under any leases disclosed in the section of the Seller
Disclosure Schedule corresponding to Section 3(b)(x)(B) who are
in possession of space to which they are entitled.
(B) The section of the Seller Disclosure Schedule corresponding
to this Section 3(b)(x)(B) lists all real property leased or subleased
to or by either of the Targets (the "Leased Premises").
(C) None of the businesses conducted by either of the Targets on
any of the Owned Premises or Leased Premises, and, to the Knowledge of
the
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Seller, none of the improvements included in the Owned Premises or the
Leased Premises, is in material violation of any building line or use
or occupancy restriction, limitation, condition or covenant of record,
any zoning or building law, code or ordinance, or any public utility
or other easement.
(D) The Seller has delivered or caused to be delivered to the
Buyer (i) copies of recent ALTA (or equivalent) title insurance
commitments with respect to each of the Owned Premises, other than the
Mexican Premises and the Brillion, Cedar Grove and Ft. Atkinson,
Wisconsin facilities, committing to insure title in such real estate,
subject in each case only to the exceptions contained therein
(collectively, the "Title Insurance Commitments"). The Seller has
delivered or caused to be delivered to the Buyer correct and complete
copies of all existing title insurance policies and surveys in the
possession or control of the Seller with respect to the Owned
Premises.
(xi) Personal Property. Each of the Targets has good title to, or a
valid leasehold in, or a contractual or common law right to use, all of the
personal property it uses in the conduct of its business, free and clear of
all Security Interests.
(xii) Intellectual Property.
(A) Neither of the Targets has infringed upon, misappropriated or
violated any Intellectual Property rights of third parties, nor has
either of the Targets received any complaint, claim, demand or notice
alleging any such infringement, misappropriation or violation
(including any claim that either of the Targets must license or
refrain from using any Intellectual Property rights of any third
party). To the Knowledge of the Seller, no third party has infringed
upon, misappropriated or violated any Intellectual Property rights of
either of the Targets in any respect.
(B) The section of the Seller Disclosure Schedule corresponding
to this Section 3(b)(xii)(B) identifies each patent or registration
which has been issued to either of the Targets with respect to any of
the Intellectual Property of the Targets and identifies each pending
patent application or application for registration which either of the
Targets has made with respect to any of the Intellectual Property of
the Targets (the "Targets' Intellectual Property"). The section of the
Seller Disclosure Schedule corresponding to this Section 3(b)(xii)(B)
also identifies each license, agreement or other permission which
either of the Targets has granted to any third party with respect to
any of the Targets' Intellectual Property (together with any
exceptions). The Seller has made available to the Buyer correct and
complete copies of all such patents, registrations, applications,
licenses, agreements
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and permissions (as amended to date). The section of the Seller
Disclosure Schedule corresponding to this Section 3(b)(xii)(B) also
identifies each trade name or trademark of a third party used by
either of the Targets in connection with its business, other than any
trade names or trademarks of third parties used by either of the
Targets under private label arrangements for such third parties. With
respect to each item of the Targets' Intellectual Property required to
be so identified in the Seller Disclosure Schedule: (i) the relevant
Target possess all right, title and interest in and to the item, free
and clear of any Security Interest, license or other restriction; (ii)
the item is not subject to any outstanding injunction, judgment,
order, decree, ruling or charge; (iii) no action, suit, proceeding,
hearing, investigation, charge, complaint, claim or demand is pending
or, to the Knowledge of the Seller, threatened against either of the
Targets which challenges the legality, validity, enforceability, use
or ownership of the item; and (iv) neither of the Targets has ever
agreed to indemnify any Person for or against any infringement,
misappropriation or other conflict with respect to the item.
(C) The section of the Seller Disclosure Schedule corresponding
to this Section 3(b)(xii)(C) identifies each item of Intellectual
Property that any third party (other than Seller) owns or licenses as
licensee and that either of the Targets uses pursuant to license,
sublicense, agreement or permission, other than any trade names or
trademarks of third parties used by either of the Targets under
private label arrangements for such third parties. With respect to
each item of Intellectual Property required to be so identified in the
Seller Disclosure Schedule, neither of the Targets has granted any
sublicense or similar right with respect to the license, sublicense,
agreement or permission.
(xiii) Sufficiency of Assets. The assets owned or leased by the
Targets or which the Targets have a contractual right to use, together with
Seller's Target-Related Intellectual Property, include all of the assets
necessary for the conduct of the Targets' businesses as conducted on the
date of this Agreement.
(xiv) Inventory. The inventory of each of the Targets is of a quality
and quantity which is usable or saleable in the ordinary course of its
business, except to the extent of the reserve for inventory writedown
reflected in the Most Recent Balance Sheet as adjusted in accordance with
past custom and practice for operations and transactions through the
Closing Date. Each ingredient and finished product included in the
inventory of each of the Targets: (i) complies in all material respects
with (x) the FDC Act and all acts amending or supplementing the FDC Act
(including, without limitation, the Food Additive Amendment of 1958), and
(y) the pure food and drug laws of each and all states of the United States
into which any such product would normally be shipped by the respective
Target, (ii) is not adulterated or misbranded within the meaning of the FDC
Act or such state laws,
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(iii) is not prohibited from being introduced into interstate commerce
under the provisions of Sections 404 or 505 of the FDC Act, and (d) does
not contain a hazardous substance or a banned substance.
(xv) Contracts. The section of the Seller Disclosure Schedule
corresponding to this Section 3(b)(xv) lists the following contracts and
other agreements to which either of the Targets is a party:
(A) any partnership, joint venture or other similar agreement or
arrangement;
(B) any agreement concerning confidentiality or noncompetition;
(C) any agreement with the Seller or an Affiliate of the Seller
(other than between the Targets);
(D) any employment agreement or change in control agreement with
any of its directors, officers or employees;
(E) any collective bargaining agreement;
(F) any indenture, mortgage, promissory note, loan agreement,
guaranty or other agreement or commitment for the borrowing of money
or any related security agreement;
(G) any agreement under which it has advanced or loaned any
amount to any of its directors, officers and employees other than the
advance or reimbursement of reasonable business expenses incurred or
to be incurred in the ordinary course of business;
(H) any agreement under which either of the Targets is lessee or
lessor of or holds or operates any real property;
(I) any agreement under which either of the Targets is lessee or
lessor of or holds or operates any material personal property;
(J) any warehouse agreement;
(K) any agreement for the sale or purchase of products or
services other than purchase or sale orders entered into in the
ordinary course of business;
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(L) any agreement under which a sale of any of the Owned Premises
is pending;
(M) any environmental indemnity agreement for the benefit of a
party other than either of the Targets;
(N) any license, sublicense, agreement or permission (as licensee
or licensor) with respect to any of Targets' Intellectual Property;
(O) any co-pack, tolling or supply agreement; or
(P) any other agreement or group of related agreements with the
same party involving more than $250,000 per year and not terminable by
the Target that is a party thereto on 6 months' or less notice without
penalty.
The Seller has made available to the Buyer a correct and complete copy of each
such contract or agreement. With respect to each such contract or agreement
(insofar as the following relates to any party thereto other than a Target, to
the Knowledge of the Seller): (i) the contract or agreement is in full force and
binding upon the parties thereto; (ii) no party is in breach or default, and no
event has occurred which with notice or lapse of time would constitute a breach
or default, or permit termination, modification or acceleration, under the
contract or agreement; and (iii) no party has repudiated any provision of the
contract or agreement. The Seller has also made available to the Buyer a written
summary of the significant terms (other than with respect to pricing and
specifications) of the letter agreement, dated June 15, 1998, by and between the
Seller and Ball Corporation (relating to the supply of cans to the Seller).
(xvi) Notes and Accounts Receivable. The notes and accounts receivable
of each of the Targets are reflected properly on its books and records, are
valid receivables subject to no setoffs or counterclaims, are collectible
at their aggregate face amount, except to the extent of the allowances for
deductions and the reserve for bad debts reflected in the Most Recent
Balance Sheet as adjusted in accordance with past custom and practice for
operations and transactions through the Closing Date.
(xvii) Powers of Attorney. There are no outstanding powers of attorney
executed on behalf of either of the Targets.
(xviii) Insurance. The section of the Seller Disclosure Schedule
corresponding to this Section 3(b)(xviii) contains a description of all
policies of fire, liability, workers' compensation and other forms of
insurance providing insurance coverage to or for either of the Targets, and
the name of the owner of each such policy. All premiums with respect
thereto have been paid when due and no notice of cancellation or
termination has been received with respect to any such policy. All
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such policies and the coverage provided thereunder will continue to be in
full force and effect through the Closing Date (but, except in the case of
coverage under those policies owned solely by either of the Targets, if
any, the coverage provided to or for the Targets thereunder may be canceled
as of the Closing Date). No such insurer has any right of payment, whether
by way of set-off, indemnity or otherwise, of any nature whatsoever,
against either Target in respect of any recovery under any such policy.
(xix) Litigation. The section of the Seller Disclosure Schedule
corresponding to this Section 3(b)(xix) sets forth each instance in which
either of the Targets: (i) is subject to any outstanding injunction,
judgment, order, decree, ruling or charge or (ii) is a party to any action,
suit, proceeding, hearing or investigation of, in or before any court or
quasi-judicial or administrative agency of any federal, state, local or
foreign jurisdiction. The section of the Seller Disclosure Schedule
corresponding to this Section 3(b)(xix) also sets forth all actions, suits,
proceedings, hearings or investigations of, in or before any court or
quasi-judicial or administrative agency of any federal, state, local or
foreign jurisdiction with which, to the Knowledge of the Seller, either of
the Targets has been threatened.
(xx) Arbitration. Neither of the Targets is a party to, or bound by,
any decree, order or arbitration award (or agreement entered into in any
administrative, judicial or arbitration proceeding) with respect to or
affecting its properties, assets, personnel or business activities.
(xxi) Product Warranty. Neither of the Targets has made any oral or
written warranties with respect to the quality or absence of defects of its
products which it has sold and which are in force as of the date hereof.
There are no claims pending or, to the Knowledge of the Seller, anticipated
or threatened against either of the Targets with respect to the quality of
or absence of defects in such products. Neither of the Targets has paid or
been required to pay direct, incidental or consequential damages to any
person in connection with any of such products.
(xxii) Employees. To the Knowledge of the Seller, no executive, key
employee or significant group of employees plans to terminate employment
with either of the Targets during the next 12 months. Neither of the
Targets has experienced any strike or material grievance, claim of unfair
labor practice, or other collective bargaining dispute within the past two
years. To the Knowledge of the Seller, there is no organizational effort
presently being made or threatened by or on behalf of any labor union with
respect to employees of either of the Targets.
(xxiii) Top Customers. The section of the Seller Disclosure Schedule
corresponding to this Section 3(b)(xxiii) sets forth a complete and correct
list of the top 10 customers by dollar volume of the Targets, taken as a
whole, during the fiscal
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year ended May 31, 1998. Except in the ordinary course, to the Knowledge of
the Seller none of such customers intends to cease doing business with
either of the Targets or to significantly reduce the general level of
business it is currently doing with either of the Targets.
(xxiv) Employee Benefits. The section of the Seller Disclosure
Schedule corresponding to this Section 3(b)(xxiv) lists each Employee
Benefit Plan of either of the Targets in which the employees of the Targets
participate on the date hereof. The Seller has made available to the Buyer
true and correct copies (or summaries) of all such Employee Benefit Plans.
Except as set forth in the section of the Seller Disclosure Schedule
corresponding to this Section 3(b)(xxiv), DFVC does not participate in or
contribute to any Employee Benefit Plan that is a Multiemployer Plan. DFVC
has not incurred any liability to the PBGC, the Internal Revenue Service,
any Multiemployer Plan or otherwise with respect to any Employee Pension
Benefit Plan currently or previously maintained by members of the
controlled group of companies (as defined in Sections 414(b) and (c) of the
Code) that includes the Seller (the "Controlled Group") that has not been
satisfied in full, and no condition exists that presents a material risk to
any member of the Controlled Group of incurring such a liability, other
than any liability for premiums due to the PBGC. The Targets would not
incur any withdrawal liability under any Multiemployer Plan of the Targets
if a complete withdrawal were to occur under such Plan as of the Closing
Date. No payment (excluding any payment the right to which was created
subsequent to the Closing Date) that will be made by any Target to any DFVC
Continued Employee after the Closing Date on account of the transactions
contemplated by this Agreement will be non-deductible to the Targets or
subject to excise tax, under Code Section 280G or Code Section 4999, nor
will any Target be required to "gross up" any DFVC Continued Employee
because of the imposition of such excise tax. The Seller will make
available to the Buyer within 30 days after the date of this Agreement
information regarding the post-retirement medical benefits currently
provided to employees of the Targets and the obligations existing under FAS
106 with respect to such employees.
Each Employee Benefit Plan which is maintained by Birds Eye Mexico (the "Foreign
Plans") has been maintained and administered in all material respects in
accordance with all applicable laws.
(xxv) Guaranties. Neither of the Targets is a guarantor or otherwise
is responsible for any liability or obligation (including indebtedness) of
any other Person.
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(xxvi) Environmental and Public Safety Matters.
(A) Each of the Targets and, to the Knowledge of the Seller, its
predecessors has complied in all material respects and is in
compliance in all material respects with all Environmental
Requirements.
(B) Without limiting the generality of the foregoing, each of the
Targets has obtained, has complied in all material respects with and
is in compliance in all material respects with all material permits,
licenses and other authorizations required to be obtained by it
pursuant to Environmental Requirements applicable to its Owned
Premises and Leased Premises.
(C) Neither of the Targets has received any written or oral
notice, report or other information regarding any actual or alleged
violation of Environmental Requirements, or any actual or alleged
liabilities or potential liabilities (whether accrued, absolute,
contingent, unliquidated or otherwise), including any investigatory,
remedial or corrective obligations, under any Environmental
Requirements, relating to any of the Owned Premises or Leased
Premises.
(D) None of the following exists at any of the Owned Premises or
Leased Premises: (1) underground storage tanks, (2)
asbestos-containing material in any friable and damaged form or
condition, (3) materials or equipment containing polychlorinated
biphenyls or other hazardous substances or (4) landfills, surface
impoundments or disposal areas.
(E) Neither of the Targets has treated, stored, disposed of,
arranged for or permitted the disposal of, transported, handled or
released any substance, including without limitation any hazardous
substance, or owned or operated any property or facility, in a manner
that has given or would give rise to any liability, including any
liability for response costs, corrective action costs, personal
injury, property damage, natural resources damages or attorney fees,
pursuant to the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA"), or the Solid Waste
Disposal Act, as amended ("SWDA"), or any other Environmental
Requirements; nor, to the Knowledge of the Seller, has any predecessor
of either of the Targets done so.
(F) This Section 3(b)(xxvi) contains the sole and exclusive
representations and warranties of the Seller with respect to
environmental and public safety matters, including without limitation
any arising under any Environmental Requirements, to the exclusion
among others of the Seller's representations and warranties in Section
3(b)(vii).
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(xxvii) Certain Business Relationships With the Seller and Its
Affiliates. Neither of the Targets has been involved in any business
arrangement or relationship (including without limitation any support
service arrangement) with the Seller or any of its Affiliates other than
the Targets within the past 12 months, and the Seller and such Affiliates
do not own any material asset, tangible or intangible (other than Seller's
Target-Related Intellectual Property), which is used in the business of
either of the Targets.
(xxviii) Undisclosed Liabilities. To the Knowledge of the Seller, all
of the obligations or liabilities (whether accrued, absolute, contingent,
unliquidated or otherwise, whether due or to become due, and regardless of
when asserted) that would have been required to be reflected, disclosed or
reserved against in the Most Recent Balance Sheet, in accordance with the
accounting practices of the Seller, have been so reflected, disclosed or
reserved against in such Balance Sheet, or in the notes thereto.
(xxix) Books and Records. The corporate records books, transfer books
and stock ledgers of the Targets are complete and accurate in all material
respects and reflect all meetings, consents and other material actions of
the organizers, incorporators, stockholders, boards of directors, and
committees of the boards of directors of each of the Targets, and all
transactions in their respective capital stocks, since their respective
inception.
(xxx) Annual Incentive Bonus Plan. The Seller's Annual Incentive Bonus
Plan for its 1999 fiscal year, insofar as it relates to employees of the
Targets, has been prepared in accordance with the Seller's past practice
and custom.
(xxxi) Year 2000 Compliance. To the Knowledge of the Seller, the
amounts budgeted by the Targets for fiscal year 1999 with respect to
ensuring that the computer systems (including all hardware, software,
firmware, operating systems and application programs) owned by the Targets
are year 2000 compliant are sufficient to bring the computer systems owned
by the Targets as of the date of this Agreement into year 2000 compliance.
(xxxii) Disclosure. No representation or warranty by the Seller in
this Agreement or in any document, written statement, certificate or
schedule required to be furnished to the Buyer pursuant hereto or in
connection with the transactions contemplated hereby, contains any untrue
statement of a material fact.
4. Representations and Warranties of the Buyer. The Buyer represents and
warrants to the Seller that, subject in the case of the representations and
warranties in each particular section below to the exceptions set forth in the
corresponding section of the Buyer Disclosure Schedule:
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(a) Organization of the Buyer. The Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation.
(b) Authorization of Transaction. The Buyer has full corporate power
and corporate authority to execute and deliver this Agreement and all other
agreements contemplated hereby to which the Buyer is or is to be a party and to
perform its obligations hereunder and thereunder. The board of directors of the
Buyer has duly approved this Agreement and all other agreements contemplated
hereby to which the Buyer is or is to be a party and has duly authorized the
Buyer's execution and delivery of this Agreement and all such other agreements
and the consummation of the transactions on the part of the Buyer contemplated
hereby and thereby. This Agreement and all such other agreements constitute the
valid and legally binding obligations of the Buyer, enforceable in accordance
with their respective terms, except as enforceability may be limited by
bankruptcy or other laws affecting creditor's rights generally and limitations
on the availability of equitable remedies.
(c) Noncontravention. Neither the execution and delivery of this
Agreement and the other agreements contemplated hereby to which the Buyer is or
is to be a party, nor the consummation of the transactions on the part of the
Buyer contemplated hereby and thereby, (i) violates any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge or other
restriction of any government, governmental agency or court to which the Buyer
is subject (except that no representation or warranty is made with respect to
any antitrust statute, regulation, rule or other restriction) or any provision
of the charter or bylaws (or similar governing documents) of the Buyer or (ii)
conflicts with, results in a breach of, constitutes a default under, results in
the acceleration of, creates in any party the right to accelerate, terminate,
modify or cancel, or requires any notice under, any agreement, contract, lease,
license, instrument or other arrangement to which the Buyer is a party or by
which it is bound or to which any of its assets is subject (or results in the
imposition of any Security Interest upon any of its assets). The Buyer does not
need to give any notice to, make any filing with or obtain any authorization,
consent or approval of, any government or governmental agency in order for the
Parties to consummate the transactions contemplated by this Agreement, other
than in connection with the provisions of the Hart-Scott-Rodino Act.
(d) Brokers' Fees. Neither the Buyer nor any of its Subsidiaries has
any liability or obligation to pay any fees or commissions to any broker, finder
or agent with respect to the transactions contemplated by this Agreement for
which the Seller or any of its Subsidiaries could become liable or obligated.
(e) Financing. The Buyer has furnished to the Seller correct and
complete copies of written confirmations from third parties which provide the
Buyer with adequate financing in connection with the transactions contemplated
by this Agreement (excluding any financing that would be required if the All
Cash Alternative becomes applicable), and the Buyer shall provide to the Seller
on or before August 10, 1998 correct and complete copies of (i) a written
agreement from
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a third party which provides the Buyer with adequate financing to consummate the
transactions contemplated by this Agreement (excluding any financing that would
be required if the All Cash Alternative becomes applicable) and (ii) a highly
confident letter with respect to financing the additional cash consideration to
be paid by the Buyer if the All Cash Alternative becomes applicable (the form
and substance of which written agreement and highly confident letter shall be
reasonably acceptable to the Seller).
(f) Investment. The Buyer understands that the capital stock of DFVC
and Holding Company has not been, and shall not be, registered under the
Securities Act, or under any state securities laws, and is being offered and
sold in reliance upon United States federal and state exemptions for
transactions not involving any public offering. The Buyer acknowledges that it
is acquiring the capital stock of DFVC and Holding Company solely for its own
account for investment purposes, and not with a view to, or intention to effect,
the distribution thereof in violation of the Securities Act or any applicable
state securities laws, and that the capital stock of DFVC and Holding Company
may not be disposed of in contravention of the Securities Act or any applicable
state securities laws. The Buyer represents that it is a sophisticated investor
with knowledge and experience in business and financial matters, is able to
evaluate the risks and benefits of the investment in the capital stock of DFVC
and Holding Company, has received certain information concerning each of the
Targets and has had the opportunity to obtain additional information as desired
in order to evaluate the merits of and the risks inherent in purchasing the
capital stock of DFVC and Holding Company.
5. Pre-Closing Covenants. The Parties agree as follows with respect to
the period between the execution of this Agreement and the Closing.
(a) General. Each of the Parties shall use its reasonable best efforts
to take all action and to do all things necessary, proper or advisable in order
to consummate and make effective, as soon as reasonably practicable, the
transactions contemplated by this Agreement (including satisfaction, but not
waiver of, the closing conditions set forth in Section 7). The Seller shall take
such further action (including the execution and delivery of such further
instruments and documents) as the Buyer reasonably may request in connection
with (i) changing title to the name of DFVC with respect to any real property
which is owned by DFVC but the title to which is not in the name of DFVC and
(ii) removing any Security Interest listed on Exhibit C on any of the Owned
Premises, all at the sole cost and expense of the Seller.
(b) Regulatory Matters and Approvals. Each of the Parties shall (and
the Seller shall cause Dean International, Holding Company and each of the
Targets to) give any notices to, make any filings with, and use its reasonable
best efforts to obtain any authorizations, consents and approvals of,
governments and governmental agencies in connection with the matters referred to
in Sections 3(a)(iii), 3(b)(iii) and 4(c). Without limiting the generality of
the foregoing, the Buyer and the Seller shall each file any Notification and
Report Forms and related material that it may be required to file in connection
with the transactions contemplated by this Agreement with the Federal Trade
Commission and the Antitrust Division of the United States Department of Justice
under the
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Hart-Scott-Rodino Act, shall each use its reasonable best efforts to obtain an
early termination of the applicable waiting period, and shall each make any
further filings pursuant thereto that may be necessary, proper or advisable.
(c) Operation of Business of the Targets The Seller shall cause each
of the Targets to conduct its business only in the ordinary course and
consistent with past practice, including causing each of the Targets to use all
commercially reasonable efforts to preserve intact its present business and
organization, to keep available the services of its current officers and
employees, to preserve its relationships with customers, suppliers and others
having business dealings with it and to maintain in full force and effect all
material contracts, documents and arrangements. The Seller shall also cause each
of the Targets to not make any material change to its inventory management
practices and to manage its inventories in accordance with past custom and
practice. The foregoing notwithstanding, the Parties expressly contemplate and
the restriction contained in the preceding sentence shall not apply to, and
Seller shall be permitted to engage in, the historical practice of the Seller to
sweep cash out of bank accounts of the Targets on a daily basis.
(d) Operation of Business of the Aseptic Business. The Buyer shall
cause the Aseptic Business to conduct its business only in the ordinary course
and consistent with past practice, including causing the Aseptic Business to use
all commercially reasonable efforts to preserve intact its present business and
organization, to keep available the services of its current officers and
employees, to preserve its relationships with customers, suppliers and others
having business dealings with it and to maintain in full force and effect all
material contracts, documents and arrangements. The Buyer shall also cause the
Aseptic Business to not make any material change to its inventory management
practices and to manage its respective inventories in accordance with past
custom and practice.
(e) Full Access to the Buyer. The Seller shall cause each of the
Targets to permit representatives of the Buyer to have full access at all
reasonable times, and in a manner so as not to interfere unreasonably with the
normal business operations of such Target, to all premises, properties,
personnel, books, records (including tax records and accounting work papers),
contracts and documents of or pertaining to such Target. The Buyer shall treat
and hold all information it receives from either of the Targets in the course of
the access contemplated by this Section 5(e) as Proprietary Information.
(f) Full Access to the Seller. The Buyer shall permit representatives
of the Seller to have full access at all reasonable times, and in a manner so as
not to interfere unreasonably with the normal business operations of the Aseptic
Business, to all premises, properties, personnel, books, records (including tax
records and accounting work papers), contracts and documents of or pertaining to
the Aseptic Business. The Seller shall treat and hold all information it
receives from the Buyer in the course of the access contemplated by this Section
5(f) as Proprietary Information.
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(g) Notice of Developments. Each Party shall give prompt written
notice to the other in the event its own representations and warranties are
discovered to be untrue as of the time made or in the event such Party
determines that such representations and warranties shall be untrue as if made
at and as of the Closing Date. No disclosure by any Party pursuant to this
Section 5(g), however, shall be deemed to amend or supplement the Seller
Disclosure Schedule or the Buyer Disclosure Schedule or to cure any
misrepresentation or breach of warranty.
(h) Exclusivity to the Buyer. After the execution and delivery of this
Agreement, the Seller shall not (and shall not cause or permit Dean
International, Holding Company or either of the Targets to) solicit, initiate,
participate in discussions of or encourage the submission of any proposal or
offer from any Person relating to any or all of the capital stock of either of
the Targets or of Holding Company or to the acquisition of all or substantially
all of the assets of either of the Targets or of Holding Company (including any
acquisition structured as a merger, consolidation or share exchange). The Buyer
acknowledges that prior to the execution and delivery of this Agreement, the
Seller has solicited indications of interest in and/or bids regarding such
transactions.
(i) Exclusivity to the Seller. After the execution and delivery of
this Agreement, the Buyer shall not solicit, initiate, participate in
discussions of or encourage the submission of any proposal or offer from any
Person relating to the acquisition of all or substantially all of the Aseptic
Business (including any acquisition structured as a merger, consolidation or
share exchange).
(j) Title Insurance Commitments. The Seller will use its commercially
reasonable efforts to obtain and cause to be delivered to the Buyer prior to the
Closing an ALTA (or equivalent) title insurance commitment with respect to each
of the Brillion, Cedar Grove and Ft. Atkinson, Wisconsin Owned Premises and a
certificate of a Governmental Entity of Mexico regarding liens with respect to
the Mexican Premises.
6. Post-Closing Covenants. The Parties agree as follows with respect to
the period following the Closing.
(a) General. In case at any time after the Closing any further action
is necessary to carry out the purposes of this Agreement, each of the Parties
will take such further action (including the execution and delivery of such
further instruments and documents) as the other Party reasonably may request,
all at the sole cost and expense of the requesting Party (unless the requesting
Party is entitled to indemnification therefor under Section 8). Each of the
Parties shall, and shall cause its officers, directors, employees and
accountants, and each of its Subsidiaries, to assist and cooperate fully with
the other Party and its officers, employees, accountants, counsel, financial
advisors and other representatives (as reasonably requested), in connection with
the preparation of any reports, schedules and other documents required to be
filed as a result of the transactions contemplated hereunder pursuant to the
requirements of federal and state securities laws, including for illustrative
purposes only, the preparation of audited financial statements and pro forma
financial information in connection with any reporting obligation under Section
13 or 15(d) of the Securities Exchange Act and Form 8-K.
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(b) Section 338(h)(10) Election. At the option of the Buyer, and
provided written request is made of the Seller by the Buyer on or before the
Closing, the Seller will join with the Buyer in making an election under Section
338(h)(10) of the Code (and any corresponding elections under state or local tax
law) (collectively a "Section 338(h)(10) Election") with respect to the purchase
and sale of the capital stock of DFVC and Holding Company hereunder, and if such
Election is made by the Buyer, the Purchase Price and the Estimated Cash
Purchase Price shall automatically be increased by an amount equal to exactly
$13,200,000. Any such request to the Seller shall constitute Buyer's
representation and warranty that it is eligible to make the Section 338(h)(10)
Election.
(c) Allocation of Purchase Price. The Parties agree that for tax
purposes: (i) the Seller's Target-Related Intellectual Property will be valued
at $105 million; and (ii) the balance of the Purchase Price will be allocated to
the Holding Company Common Stock and to the Target Shares owned by the Seller
(or, in the event there is a timely Section 338(h)(10) Election, will be
allocated, together with the liabilities of DFVC and other relevant items, to
the assets of Holding Company and DFVC (including the Birds Eye Mexico Series A
Stock and Series B Stock held by Holding Company and DFVC) as the Buyer
determines consistent with the Code and applicable rules and regulations
thereunder). In the event the Purchase Price includes the Aseptic Business, the
value of the Aseptic Business for purposes of the foregoing will be determined
by appraisal as provided in the Asset Transfer Agreement. The Buyer will notify
the Seller of its allocations pursuant to (ii) above no later than 60 days after
the Closing Date. The Seller will have 30 days to review and approve such
allocations, such approval not to be unreasonably withheld or delayed. The
Seller and the Buyer agree to report the allocation of the Purchase Price in a
manner entirely consistent with such valuations and allocations and agree to act
in accordance with such valuations and allocations in the preparation of
financial statements and filing of all tax returns (including, without
limitation, filing Form 8594 (or Form 8023 in the event a Section 338(h)(10)
Election is made by the Buyer and the Seller) with its Federal income tax return
for the taxable year that includes the date of the Closing) and in the course of
any tax audit, tax review or tax litigation relating thereto.
(d) Retention of and Access to Records. Until the seventh anniversary
of the Closing Date (the "Records Retention Date"), the Buyer shall (and shall
cause each of its Subsidiaries, including the Targets, to) permit the Seller and
its attorneys, accountants, agents and designees such access to, and right to
copy, the records and documents of Holding Company and each of the Targets which
exist at the Closing (regardless of whether such documents or records are in the
possession of Holding Company, a Target, the Buyer or an Affiliate of the Buyer)
as the Seller may deem reasonably necessary or reasonably desirable. Any such
examination and copying shall be at the expense of the Seller, shall be
performed at the place where such records and documents are regularly maintained
and shall not unreasonably interfere with the normal business activities of the
furnishing party. In the event that the Buyer (or any of its Affiliates) intends
to destroy any of such records or documents prior to the Records Retention Date,
it shall so notify the Seller in writing
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at least 90 days before taking such action (and the Seller shall have the right
to review and remove at its expense any of such records or documents to be
destroyed).
(e) Employees and Employee Benefit Plans.
(i) Subject to the succeeding provisions of this Section 6(e),
the Buyer will cause the Targets to continue in employment immediately
following the Closing Date (or, in the case of an employee within
clause (ii) of this sentence, immediately following the date of his or
her commencement of or return to active employment) (i) each employee
on the Targets' active payroll on the Closing Date and (ii) each
employee of the Targets not on the Targets' active payroll on the
Closing Date on account of an approved leave of absence, disability
leave or layoff if such employee returns to active employment with the
respective Target immediately upon the conclusion of any such leave or
layoff, or within the period required by law or any applicable
collective bargaining agreement (all employees continuing such
employment being referred to herein as "Continued Employees"). Such
continued employment and the benefits to be provided to the Continued
Employees shall recognize the date of hire and time of service with
the respective Target and its Affiliates (and their respective
predecessors) for all purposes except as otherwise expressly provided
in this Section 6(e). Nothing contained in this (i) shall confer upon
any Continued Employee the right to continued employment by the
respective Target for any period of time after immediately after the
Closing Date (or date of commencement of or return to active
employment, as applicable) which is not otherwise required by law or
the terms of any applicable collective bargaining agreement. The
Targets shall continue to be bound by, and the Buyer will cause the
Targets to honor the terms of, each collective bargaining agreement
which applies to the Continued Employees. The Buyer shall cause DFVC,
at its sole expense, to provide each Continued Employee with any
severance pay and benefits applicable to such Continued Employee
pursuant to Exhibit B.
(ii) Effective as of the Closing Date, the Continued Employees
shall cease to be covered under the employee benefit plans of the
Seller, if any, and shall participate under the employee benefit
plans, programs and policies maintained or established by the
respective Target. Each employee benefit plan, program or policy
maintained or established by either Target with respect to any
Continued Employees shall credit the Continued Employees covered
thereby for all purposes (unless such crediting would result in a
duplication of benefits) with the service that was recognized
immediately prior to the Closing Date under the comparable plan of the
Seller or the comparable plan of the respective Target maintained
immediately prior to the Closing and, with respect to each plan that
is an Employee Welfare Benefit Plan, the Continued Employees shall be
covered without regard to any waiting period or pre-existing condition
restriction and shall receive credit for all deductibles, co-payments
and other out-of-pocket expenses incurred under the Seller's plans
during
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the portion of the applicable plan year that precedes the Closing
Date. The Seller shall use its reasonable best efforts (i) to assign
or otherwise transfer to DFVC any group policy or contract governing
welfare benefits for the DFVC Continued Employees that is maintained
on a stand-alone basis for such employees and (ii) if requested by the
Buyer, in the case of a group policy or contract governing welfare
benefits for DFVC Continued Employees and other employees of the
Seller, to assign or otherwise transfer to DFVC the portion of the
policy or contract covering the DFVC Continued Employees.
(iii) Effective as of the Closing Date, the Buyer shall cause
DFVC to establish for the DFVC Continued Employees a defined
contribution plan, or make the DFVC Continued Employees eligible for
an existing defined contribution plan of the Buyer, that is qualified
under Section 401(a) of the Code (the "DFVC Savings Plan"). Upon the
Seller's receipt of evidence satisfactory to it relative to the
establishment or the availability of the DFVC Savings Plan and that
such Plan is qualified under Section 401(a) of the Code, the Seller
shall cause the trustee of the Seller's Savings Plan to transfer the
account balances of the Continued Employees in the Seller's Savings
Plan to the DFVC Savings Plan, including without limitation, any
outstanding participant loans.
(iv) Effective as of the Closing Date, the Continued Employees
shall cease active participation in the Dean Foods Company Retirement
Plan (the "Seller's Retirement Plan"). The Seller shall retain all
assets of the Seller's Retirement Plan and the liabilities for
benefits of the Continued Employees accrued through the Closing Date
under the Seller's Retirement Plan. Each Continued Employee will be
entitled to a distribution of his or her benefits accrued as of the
Closing Date under the Seller's Retirement Plan after the employee, in
addition to satisfying the otherwise applicable requirements for
commencement of his or her benefits under the terms of such Plan, has
retired or is terminated from employment with DFVC.
(v) The Seller agrees that it shall be solely responsible for the
provision of health care continuation coverage required pursuant to
the terms of COBRA for those former employees of DFVC whose
entitlement to such continuation coverage occurred before the Closing
Date. The Buyer shall cause DFVC, to the extent required, to offer
"continuation coverage" under its group health plans to all Continued
Employees and to comply with all notice and other requirements under
COBRA or similar state statue so that the Seller shall have no
liability or obligation under COBRA or a similar state statue to the
Continued Employees as a result of the transactions contemplated by
this Agreement.
(vi) The Buyer shall cause DFVC, for a period of 90 days after
the Closing Date, not to cause any of the Continued Employees to
suffer "employment loss" for purposes of the Worker Adjustment and
Retraining Notification Act and
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related regulations (the "WARN Act"), if such employment loss could
create any liability for the Seller.
(f) DFVC Name Change. Immediately following the Closing, the Buyer
shall change the name of DFVC to a name which is different from and not
confusingly similar to "Dean Foods Vegetable Company" and which does not contain
the word "Dean." The Buyer acknowledges that, subject to (h) below, neither it
nor Holding Company nor either of the Targets will have any right, title or
interest in or to the name "Dean" or any variation thereof subsequent to the
Closing Date.
(g) Non-Compete. The Seller agrees not to (and to cause its
Subsidiaries not to), during the period of 5 years following the Closing (the
"Non-Compete Period"), directly or indirectly own any interest in, manage,
control, participate in, consult with, render services for or in any manner
engage in, any business engaged in the manufacture or sale of frozen or canned
vegetable products (other than vegetable dips, snack dips, guacamole dips,
pickles or pickle-related products), within any geographical area in which, at
the Closing Date, either of the Targets engages in such business (the
"Non-Compete Businesses"); provided that nothing herein shall prohibit the
Seller and its Subsidiaries from: (i) acquiring any interest in any Person
which, directly or indirectly, engages in any of the Non-Compete Businesses and
subsequently managing, controlling, participating in, consulting with or
rendering services for such Person or engaging through such Person in any of the
Non-Compete Businesses, so long as (x) the sale of the products which relate to
the Non-Compete Businesses on a worldwide basis does not account for more than
the lesser of (1) $50,000,000 in sales on an annual basis and (2) 5% of the
sales of such Person either immediately before or after such acquisition or (y)
if within 270 days of such acquisition the Seller disposes of to a Person which
is not an Affiliate of the Seller, or enters into a definitive agreement with a
Person which is not an Affiliate of the Seller to dispose of, that portion of
the acquired business that engages in the Non-Compete Businesses; or (ii) owning
less than 20% of the equity securities or other interest in any Person, provided
such ownership is passive other than the exercise of shareholder rights. If, at
the time of enforcement of this Section, a court holds that the restrictions
stated herein are unreasonable under circumstances then existing, the Buyer and
the Seller agree that the maximum period, scope or geographical area reasonable
under such circumstances shall be substituted for the stated period, scope or
area. The Parties agree that money damages would not be an adequate remedy for
any breach of this Section. Therefore, in the event of a breach or threatened
breach of this Section, the Buyer or its successors or assigns may, in addition
to other rights and remedies existing in their favor, apply to any court of
competent jurisdiction for specific performance and/or injunctive or other
relief in order to enforce, or prevent any violation of, the provisions hereof
(without posting a bond or other security). Seller agrees that the restrictions
contained in this Section are reasonable.
(h) Post-Closing License of Seller's Dean Trademark. Subject to the
terms and conditions of this Section, the Seller grants to the Buyer and the
Targets, for a period of up to 2 years from the Closing Date, the right to use
the Targets' Dean-Related Packaging/Labels on frozen or canned vegetable
products sold by the Targets subsequent to the Closing in accordance with the
past
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custom and practice of the Targets. The Buyer shall cause any such product on
which any of the Targets' Dean-Related Packaging/Labels is used to be of a
character and quality substantially equivalent to the character and quality of
such product manufactured and sold, or caused to be manufactured and sold, by
the Targets before the Closing Date. The Buyer shall cause the Targets to not
use any other mark, name, style or design in association with any of the
Targets' Dean-Related Packaging/Labels or to in any way alter or modify any of
the Targets' Dean-Related Packaging/Labels (including without limitation any
Seller's Dean Trademark thereon) without the prior written consent of the
Seller. The Buyer shall cause the Targets to destroy and not use any damaged or
imperfect Targets' Dean-Related Packaging/Labels. From time to time upon
reasonable notice, the Seller shall have the right, at its expense, to conduct
inspections during normal business hours of the manufacturing operations of the
Targets to ensure that the Targets are complying with the foregoing obligations.
(i) Settlement of Seller Group Payments. The Seller shall periodically
pay over to the Buyer all payments received by the Seller or any of its
Subsidiaries subsequent to the Closing Date which relate to the receivables of
either of the Targets, net of any deductions taken against the receivables of
the Seller or any of its Affiliates attributable to either of the Targets. The
amounts of such payments and related deductions attributable to the Targets
shall be as specified by the party making the payment; provided that the amount
of any such payments and deductions not specified by the party making the
payment as relating to either of the Targets shall be determined by the Seller
in good faith subject to the reasonable approval of the Buyer.
(j) Release of IRB Guarantee. Not later than the first anniversary of
the Closing Date, the Buyer shall either (i) cause the Seller to be fully and
forever released in a writing satisfactory to the Seller from all obligations
under the IRB Guarantee or (ii) fully satisfy and discharge all indebtedness to
which the IRB Guarantee relates and provide the Seller with evidence thereof
satisfactory to the Seller.
7. Conditions to Obligation to Close.
(a) Conditions to Obligation of the Buyer. The obligation of the Buyer
to consummate the Closing is subject to satisfaction of the following
conditions:
(i) the representations and warranties of the Seller set forth in
Section 3 shall be true and correct in all material respects at and as
of the Closing Date as if made at and as of the Closing Date, except
for the effects of actions contemplated herein or permitted hereunder;
(ii) if the All Cash Alternative has not become applicable, the
representations and warranties of the Seller set forth in Section 4 of
the Asset Transfer Agreement shall be true and correct in all material
respects at and as of the Closing Date as if made at and as of the
Closing Date, except for the effects of actions contemplated
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herein or permitted hereunder or contemplated in or permitted under
the Asset Transfer Agreement;
(iii) the Seller shall have performed and complied in all
material respects with all of its covenants hereunder (and under the
Asset Transfer Agreement unless the All Cash Alternative has become
applicable) that are to be performed or complied with prior to the
Closing;
(iv) no action, suit or proceeding shall be pending before any
court or quasi-judicial or administrative agency of any federal,
state, local or foreign jurisdiction or before any arbitrator wherein
an unfavorable injunction, judgment, order, decree, ruling or charge
would (A) prevent consummation of any of the transactions contemplated
by this Agreement (excluding the transfer of the Aseptic Business to
the Seller if the All Cash Alternative has become applicable), (B)
cause any of the transactions contemplated by this Agreement
(excluding the transfer of the Aseptic Business to the Seller if the
All Cash Alternative has become applicable) to be rescinded following
consummation, (C) affect materially and adversely the right of the
Buyer to own the capital stock of DFVC and Holding Company and to
control Holding Company and the Targets, (D) affect materially and
adversely the right of Holding Company or DFVC to own the capital
stock of Birds Eye Mexico owned by it or (E) affect materially and
adversely the right of the Targets (taken as a whole) to own their
assets and to operate their businesses (and no such injunction,
judgment, order, decree, ruling or charge shall be in effect);
(v) the Seller shall have delivered to the Buyer a certificate to
the effect that each of the conditions specified above in Section
7(a)(i)-(iv) is satisfied;
(vi) all applicable waiting periods (and any extensions thereof)
under the Hart-Scott-Rodino Act with respect to the transactions
contemplated by this Agreement (excluding the transfer of the Aseptic
Business to the Seller if the All Cash Alternative has become
applicable) shall have expired or otherwise been terminated and the
Parties, Dean International and the Targets shall have received all
other material authorizations, consents, and approvals of governments
and governmental agencies referred to in Sections 3(a)(iii), 3(b)(iii)
and 4(c) and in the sections of the Seller Disclosure Schedule and
Buyer Disclosure Schedule corresponding thereto;
(vii) the Buyer shall have received from the Seller intellectual
property transfer documents in recordable form with respect to the
transfer of the Seller's Target-Related Intellectual Property;
(viii) the Buyer shall have received from the Seller a duly
executed assignment document with respect to the Existing Birds Eye
License Agreement;
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(ix) the Buyer shall have received from the General Counsel of
the Seller an opinion as to the respective matters set forth in
Exhibit D attached hereto, based on customary reliance and subject to
customary qualifications and, insofar as such opinion relates to
matters of Wisconsin law, subject to the assumption that Wisconsin law
does not differ from Illinois law to any extent material to such
opinion, addressed to the Buyer, and dated as of the Closing Date;
(x) the Buyer shall have received from special counsel to Birds
Eye Mexico an opinion as to the respective matters set forth in
Exhibit E attached hereto, based on customary reliance and subject to
customary qualifications, addressed to the Buyer, and dated as of the
Closing Date;
(xi) the Buyer shall have received from each person who is,
immediately prior to the Closing, a director or officer of Holding
Company or either of the Targets and who has been identified to the
Seller by the Buyer in writing at least 20 days prior to the Closing
as being subject to this condition, his written resignation, effective
as of the Closing, from each position as a director or officer of each
of the Targets; and
(xii) all actions to be taken by the Seller, Dean International,
Holding Company and the Targets in connection with consummation of the
transactions contemplated hereby and all certificates, opinions,
instruments and other documents required to effect the transactions
contemplated hereby shall be reasonably satisfactory to the Buyer.
The Buyer may waive any condition specified in this Section 7(a) if it executes
a writing so stating at or prior to the Closing.
(b) Conditions to Obligation of the Seller. The obligation of the
Seller to consummate the Closing is subject to satisfaction of the following
conditions:
(i) the representations and warranties of the Buyer set forth in
Section 4 shall be true and correct in all material respects at and as
of the Closing Date as if made at and as of the Closing Date, except
for the effects of actions contemplated herein or permitted hereunder;
(ii) if the All Cash Alternative has not become applicable, the
representations and warranties of the Buyer set forth in Section 3 of
the Asset Transfer Agreement shall be true and correct in all material
respects at and as of the Closing Date as if made at and as of the
Closing Date, except for the effects of actions contemplated herein or
permitted hereunder or contemplated in or permitted under the Asset
Transfer Agreement;
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(iii) the Buyer shall have performed and complied in all material
respects with all of its covenants hereunder (and under the Asset
Transfer Agreement unless the All Cash Alternative has become
applicable) that are to be performed or complied with prior to the
Closing;
(iv) no action, suit or proceeding shall be pending before any
court or quasi-judicial or administrative agency of any federal,
state, local or foreign jurisdiction or before any arbitrator wherein
an unfavorable injunction, judgment, order, decree, ruling or charge
would (A) prevent consummation of any of the transactions contemplated
by this Agreement (excluding the transfer of the Aseptic Business to
the Seller if the All Cash Alternative has become applicable), (B)
cause any of the transactions contemplated by this Agreement
(excluding the transfer of the Aseptic Business to the Seller if the
All Cash Alternative has become applicable) to be rescinded following
consummation or (C) unless the All Cash Alternative has become
applicable, affect materially and adversely the right of the Seller to
own and control the Aseptic Business and to operate its businesses
(and no such injunction, judgment, order, decree, ruling, or charge
shall be in effect);
(v) the Buyer shall have delivered to the Seller a certificate to
the effect that each of the conditions specified above in Section
7(b)(i)-(iv) is satisfied;
(vi) the Seller shall have procured all third party
authorizations, consents and approvals required under its credit
facilities identified in the section of the Seller Disclosure Schedule
corresponding to Section 3(a)(iii);
(vii) all applicable waiting periods (and any extensions thereof)
under the Hart-Scott-Rodino Act with respect to the transactions
contemplated by this Agreement (excluding the transfer of the Aseptic
Business to the Seller if the All Cash Alternative has become
applicable) shall have expired or otherwise been terminated and the
Parties, Dean International and the Targets shall have received all
other material authorizations, consents, and approvals of governments
and governmental agencies referred to in Sections 3(a)(iii), 3(b)(iii)
and 4(c) and in the sections of the Seller Disclosure Schedule and
Buyer Disclosure Schedule corresponding thereto;
(viii) the Seller and the transferee of its rights in and to the
Birds Eye Dips Trademark shall have entered into the Closing Date
Birds Eye License Agreement;
(ix) the Seller shall have received from the transferee of
Seller's rights as licensor under the Existing Birds Eye License
Agreement a duly executed assumption document with respect to such
License Agreement (and, if applicable, the related guarantee
contemplated in Section 2(c));
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(x) the Seller shall have received from special counsel to the
Buyer an opinion as to the respective matters set forth in Exhibit F
attached hereto, based on customary reliance and subject to customary
qualifications, addressed to the Seller, and dated as of the Closing
Date; and
(xi) all actions to be taken by the Buyer in connection with
consummation of the transactions contemplated hereby and all
certificates, opinions, instruments and other documents required to
effect the transactions contemplated hereby shall be reasonably
satisfactory in form and substance to the Seller.
The Seller may waive any condition specified in this Section 7(b) if it executes
a writing so stating at or prior to the Closing.
8. Indemnification.
(a) General. From and after the Closing, the Parties shall be
indemnified as provided in this Section 8. For the purposes of this Section 8,
each Party shall be deemed to have remade all of its representations and
warranties contained in this Agreement at the Closing with the same effect as if
originally made at the Closing; provided that for purposes thereof the Seller
Disclosure Schedule shall be deemed amended to reflect any changes therein
furnished to the Buyer by the Seller in writing in connection with the Closing
that are contemplated herein or permitted herein.
(b) Indemnification of Buyer Indemnitees. The Seller shall indemnify,
save and keep the Buyer and its successors and permitted assigns, and their
respective directors, officers, employees and agents, and the heirs, executors
and personal representatives of each of the foregoing (each a "Buyer Indemnitee"
and collectively the "Buyer Indemnitees"), harmless against and from all Damages
sustained or incurred by any Buyer Indemnitee as a result of or arising out of:
(i) any inaccuracy in or breach of any representation and
warranty made by the Seller to the Buyer herein or in any other
document executed in connection with the Closing;
(ii) any breach by the Seller of, or failure of the Seller to
comply with, any of the covenants or obligations under this Agreement
to be performed by the Seller (including, without limitation, the
obligations of the Seller under this Section 8);
(iii) any Control Group Liability of the Seller or any of its
Affiliates arising out of events occurring or circumstances existing
prior to the Closing Date which is not directly attributable to
Holding Company or either of the Targets;
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(iv) any judgment rendered in, or settlement approved by the
Seller of, the Silage-Related Litigation;
(v) any Income Taxes of Holding Company or the Targets for which
the Seller is responsible under Section 9(a); or
(vi) the Seller's failure to satisfy its obligations under any
Seller Plan.
(c) Indemnification of Seller Indemnitees. The Buyer shall indemnify,
save and keep the Seller and Dean International and their respective successors
and permitted assigns, and their respective directors, officers, employees and
agents, and the heirs, executors and personal representatives of each of the
foregoing (each a "Seller Indemnitee" and collectively the "Seller
Indemnitees"), harmless against and from all Damages sustained or incurred by
any Seller Indemnitee as a result of or arising out of:
(i) any inaccuracy in or breach of any representation and
warranty made by the Buyer to the Seller herein or in any other
document executed in connection with the Closing;
(ii) any breach by the Buyer, or failure of the Buyer to comply
with, any of the covenants or obligations under this Agreement to be
performed by the Buyer (including, without limitation, the obligations
of the Buyer under this Section 8);
(iii) the operations, acts, omissions or status of Holding
Company or either of the Targets, except to the extent the Seller is
required to provide indemnification under Section 8(b) with respect to
any Damages as a result of or arising out of events occurring or
circumstances existing prior to the Closing Date; or
(iv) the IRB Guarantee.
(d) Limitation on Indemnification Obligations.
(i) All representations and warranties of the Seller and the
Buyer contained in this Agreement, other than any intentional
misrepresentation (which shall not be subject to any survival period),
the representations and warranties of the Seller in Sections 3(b)(ix)
and 3(a)(vii) and any representation and warranty of the Buyer
pursuant to Section 6(b), shall survive the Closing and continue in
full force and effect for a period of 18 months thereafter. Each of
the representations and warranties of the Seller contained in Section
3(b)(ix) and any representation and warranty of the Buyer pursuant to
Section 6(b) shall survive the Closing and continue in full force and
effect until thirty days after the expiration of the statute of
limitations applicable to the subject thereof. Each of the
representations and warranties of the Seller contained in Section
3(a)(vii) shall survive the Closing and
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continue in full force and effect thereafter. A claim by a Buyer
Indemnitee or a Seller Indemnitee for indemnification under Section
8(b)(i) or 8(c)(i), respectively, shall be ineffective unless such
Person delivers a written claim for indemnification within the
survival period specified in this Section 8(d)(i) as applicable to the
representation or warranty that is the subject of such claim.
(ii) Notwithstanding anything to the contrary contained herein,
(A) the Buyer Indemnitees shall only be entitled to indemnification
pursuant to Section 8(b)(i) once the aggregate amount otherwise
payable to the Buyer Indemnitees pursuant to such Section exceeds an
amount equal to $5,000,000 (the "Threshold Amount"), and after such
aggregate amount exceeds such dollar amount the Buyer Indemnitees
shall be entitled to seek indemnification only for indemnification
claims above the Threshold Amount, and (B) the indemnification to
which the Buyer Indemnitees are entitled pursuant to Section 8(b)(i)
shall be subject to an aggregate ceiling equal to $125,000,000;
provided that such Threshold Amount and such ceiling shall not apply
to any breaches of representation and warranties contained in Sections
3(b)(ix) or 3(a)(vii) or to any intentional misrepresentation.
(e) Cooperation. Subject to the provisions of Section 8(f), the
Indemnifying Party shall have the right, at the Indemnifying Party's own
expense, to participate in the defense of any Third Party Claim, and if said
right is exercised, the Indemnifying Party and the Indemnified Party shall
cooperate in the investigation and defense of said Third Party Claim.
(f) Third Party Claims Subject to Indemnification.
(i) Promptly following the receipt of notice of a Third Party
Claim for which it may seek indemnification hereunder, the party
receiving the notice of the Third Party Claim shall notify the
Indemnifying Party of such Third Party Claim. The failure to give such
notice shall not relieve the Indemnifying Party of its obligations
under this Agreement except to the extent that the Indemnifying Party
is prejudiced as a result of the failure to give such notice. Within
15 business days after receipt of the notice by the Indemnifying Party
pursuant to the preceding sentence, the Indemnifying Party shall
notify the Indemnified Party whether it elects to undertake the
defense of the Third Party Claim. If the Indemnifying Party elects to
undertake the defense of such Third Party Claim, it shall do so at its
own expense with counsel of its own choosing and it shall acknowledge
in writing its indemnification obligations as provided in this
Agreement to the Indemnified Party as to such Third Party Claim. If
the Indemnifying Party elects not to defend such Third Party Claim or
fails to pursue the defense of such Third Party Claim diligently, the
Indemnified Party shall have the right to undertake the defense of
such Third Party Claim through counsel of its own choosing. The Party
that defends the Third Party Claim shall keep the other Party fully
advised of the progress and disposition of such claim.
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(ii) In the event the Indemnifying Party elects not to undertake
the defense of a Third Party Claim or fails to pursue diligently the
defense of such claim and the Indemnified Party litigates or otherwise
contests or settles the Third Party Claim, then, provided that and to
the extent that a final determination has been made that the
Indemnified Party is entitled to indemnification therefor hereunder,
the Indemnifying Party shall promptly reimburse the Indemnified Party
for amounts paid to litigate or otherwise contest or settle such claim
and all amounts paid in satisfaction of a judgment against the
Indemnified Party in contesting such claim and in providing its right
to indemnification hereunder, all in accordance with the provisions of
this Section 8.
(iii) No Third Party Claim will be settled by the Indemnifying
Party or the Indemnified Party without the consent of the other, which
consent will not be unreasonably withheld or delayed; provided,
however, that if such claim asserts that the Indemnifying Party is
jointly and severally liable and the Indemnified Party shall be fully
released from all liability relating to such Third Party Claim in
connection with such settlement, the Indemnifying Party shall not be
required to obtain the consent of the Indemnified Party. If, however,
the Indemnified Party refuses to consent to a bona fide offered
settlement which the Indemnifying Party wishes to accept, the
Indemnified Party shall be required to continue to defend such Third
Party Claim free of any participation by the Indemnifying Party, at
the sole expense of the Indemnified Party. In such event, the
Indemnifying Party shall pay to the Indemnified Party the amount of
the offer of settlement which the Indemnified Party refused to accept,
plus the costs and expenses incurred by the Indemnified Party prior to
the date the Indemnifying Party notifies the Indemnified Party of the
offer of settlement for which the Indemnified Party is entitled to
indemnification, all in accordance with the terms of this Section 8,
and, upon the payment or receipt of such amount, as the case may be,
the Indemnifying Party shall have no further liability with respect to
such Third Party Claim. The Indemnifying Party shall be entitled to
recover from the Indemnified Party any additional expenses incurred by
the Indemnifying Party as a result of the decision of the Indemnified
Party to pursue the matter.
(iv) In lieu of the provisions set forth above, the following
provisions shall apply with respect to the Silage-Related Litigation.
The Seller shall assume and control the defense of the Silage-Related
Litigation with counsel of its own choice. The Seller shall have the
exclusive right to settle any such Litigation. The Buyer and DFVC
shall have no right to participate in the defense of the
Silage-Related Litigation or in connection with any settlement
discussions related thereto or to make any decision or determination
in connection therewith. However, the Buyer will, and will cause DFVC
to, cooperate with the Seller and its counsel in the contest or
defense of such Litigation, including making available their personnel
and providing
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such testimony and access to their books and records as shall be
reasonably requested by the Seller, at the sole cost and expense of
the Seller.
(g) Exclusivity.
(i) Except to the extent such limitation is prohibited by law and
such prohibition is not waivable by the Buyer Indemnitees, the
indemnification provisions of this Section 8 shall constitute the
exclusive remedy of the Buyer Indemnitees in connection with this
Agreement or the transactions contemplated herein, including without
limitation for any of the matters described in Sections 8(b). To the
maximum extent permitted by law, each of the Buyer Indemnitees waives
the benefit of any such prohibition.
(ii) Except to the extent such limitation is prohibited by law
and such prohibition is not waivable by the Seller Indemnitees, the
indemnification provisions of this Section 8 shall constitute the
exclusive remedy of the Seller Indemnitees in connection with this
Agreement or the transactions contemplated herein, including without
limitation for any of the matters described in Sections 8(c). To the
maximum extent permitted by law, each of the Seller Indemnitees waives
the benefit of any such prohibition.
9. Tax Matters.
(a) Preparation and Filing of Income Tax Returns.
(i) The Seller will include the income of DFVC (including any
deferred income triggered into income by Reg. 'SS'1.1502-13 and any
excess loss accounts taken into income under Reg. 'SS'1.1502-19) on
the Seller's federal consolidated or applicable consolidated or
combined state or local Income Tax return (collectively, "Consolidated
Income Tax Returns") for all periods through the Closing Date and pay
any Income Taxes attributable to such income. For purposes of
preparing all such Consolidated Income Tax Returns, the income of
DFVC will be apportioned to the period up to and including the
Closing Date and the period after the Closing Date by closing the
books of DFVC as of the end of the day on which the Closing occurs.
(ii) The Seller shall prepare or cause to be prepared and file or
cause to be filed all Income Tax returns (other than Consolidated
Income Tax Returns) for the Targets for all periods ending on or prior
to the Closing Date which are filed after the Closing Date and shall
pay all Income Taxes attributable to the taxable income reported on
such Income Tax returns. All such Income Tax returns shall be prepared
and filed in a manner consistent with past practice of the Seller.
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(iii) The Buyer shall prepare or cause to be prepared and file or
cause to be filed any Income Tax returns (other than Consolidated
Income Tax Returns) of the Targets for Tax periods which begin before
the Closing Date and end after the Closing Date. The Buyer shall
submit each such Income Tax return to the Seller for the Seller's
review and approval at least 20 days prior to the due date for filing
such Income Tax return. The Seller shall pay to the Buyer within 10
days after the date on which Taxes are paid with respect to such
periods an amount equal to the portion of such Taxes which relates to
the portion of such Tax period ending at the end of the day on which
the Closing occurs.
(iv) Notwithstanding the foregoing, the Seller shall have no
obligation to pay any Income Taxes of either Target that are
attributable to any transaction not in the ordinary course of business
occurring subsequent to the Closing Date. For purposes of this Section
9(a), the income of the Targets will be apportioned to the period up
to and including the end of the day on which the Closing occurs and
the period thereafter by closing the books of the Targets as of the
end of such day. Any credits relating to a Tax period that begins
before and ends after the end of the day on which the Closing occurs
shall be taken into account as though the relevant Tax period ended at
the end of such day. All determinations necessary to give effect to
the foregoing allocations shall be made in a manner consistent with
the prior practice of the respective Target.
(b) Income Tax Refunds and Benefits. Any Income Tax refunds that are
received by the Buyer or either of the Targets, and any amounts credited against
Income Tax to which the Buyer or either of the Targets becomes entitled, that
relate to Tax periods or portions thereof ending on or before the end of the day
on which the Closing occurs shall be for the account of the Seller, and the
Buyer shall pay over to the Seller any such refund or the amount of any such
credit within 10 days after receipt thereof or entitlement thereto. The Buyer
will, and will cause the Targets to, cooperate with the Seller in obtaining such
refunds (or reduction in Income Tax liability), including through the filing of
amended Income Tax returns or refund claims. The Seller agrees to reimburse the
Buyer and the Targets for any Income Taxes resulting from the disallowance of
such Income Tax refund or credit on audit or otherwise.
(c) Cooperation on Tax Matters. The Buyer and the Seller shall, and
the Buyer shall cause the Targets to, cooperate fully, as and to the extent
reasonably requested by the other party, in connection with the filing of all
Tax returns pursuant to this Section 9 and any audit, litigation or other
proceeding with respect to Taxes. Such cooperation shall include (i) the
retention and (upon the other party's request) provision of records and
information which are reasonably relevant to any such audit, litigation or other
proceeding, (ii) making available, on a mutually convenient basis, personnel
(including officers, directors, employees and agents) to provide additional
information and explanation of any material provided hereunder and (iii) making
available, on a mutually convenient basis, personnel reasonably required as
witnesses or for purposes of providing information or documents in connection
with any administrative or judicial
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proceeding relating to taxes. The Buyer and the Seller agree, and the Buyer
agrees to cause the Targets, (i) to retain all books and records (including
Income Tax Returns and work papers) with respect to Tax matters pertinent to the
Targets relating to any Tax period beginning before the Closing Date until the
expiration of the statute of limitations (and, to the extent notified by the
Buyer or the Seller, any extensions thereof) for the respective Tax periods, and
to abide by all record retention agreements entered into with any taxing
authority, and (ii) to give the other party reasonable written notice prior to
transferring, destroying or discarding any such books and records and, if the
other party so requests, to allow the other party to take possession of such
books and records. The Buyer and the Seller further agree, upon request, to
provide the other party with all information that either party may be required
to report pursuant to Section 6043 of the Code and all Treasury Department
Regulations promulgated thereunder.
(d) Control Rights. The party responsible under this Agreement for
filing the relevant Income Tax Return shall control any audits by, disputes
with, and administrative, judicial or other proceedings by or against taxing
authorities related thereto. Subject to the preceding sentence, in the event an
adverse determination may result in each party having responsibility for any
amount of Income Taxes under this Agreement, each party shall be entitled to
fully participate in that portion of the proceedings relating to the Income
Taxes with respect to which it may incur liability hereunder. For purposes of
this Section 9(d), the term "participation" shall include (i) participation in
conferences, meetings or proceedings with any tax authority, the subject matter
of which includes an item for which such party may have liability hereunder,
(ii) participation in appearances before any court or tribunal, the subject
matter of which includes an item for which a party may have liability hereunder
and (iii) with respect to the matters described in clauses (i) and (ii),
participation in the submission and determination of the content of the
documentation, protests, memoranda of fact and law, briefs and the conduct of
oral arguments and presentations.
(e) Expenses. The Buyer and the Seller shall bear their own expenses
incurred in connection with audits and other administrative or judicial
proceedings relating to Income Taxes for which such party and its Affiliates are
liable under this Agreement.
(f) Post-Closing Transactions not in the Ordinary Course. The Buyer
and the Seller agree to report all transactions not in the ordinary course of
business occurring after the day on which the Closing occurs on Buyer's federal
income tax return to the extent permitted by Reg. 'SS'1.1502-76(b)(1)(B). The
Buyer agrees to indemnify the Seller and its Affiliates for any additional
Income Tax owed by the Seller (including Income Tax owed by the Seller due to
this indemnification payment) resulting from any transaction described in the
preceding sentence.
(g) Certain Taxes. All transfer, documentary, sales, use, stamp,
registration and other such Taxes and fees (including any penalties and
interest) incurred in connection with this Agreement (including any New York
State Gains Tax, New York City Transfer Tax and any similar tax imposed in other
states or subdivisions), shall be paid by the Buyer when due, and the Buyer
will, at its own expense, file all necessary Tax returns and other documentation
with respect to all such transfer, documentary, sales, use, stamp, registration
and other Taxes and fees, and, if required
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by applicable law, the Seller will, and will cause its Affiliates to, join in
the execution of any such Tax returns and other documentation.
10. Termination.
(a) Termination of Agreement. Either or both of the Parties may
terminate this Agreement with the prior authorization of its or their board(s)
of directors as provided below:
(i) the Parties may terminate this Agreement by mutual written
consent at any time prior to the Closing;
(ii) the Buyer may terminate this Agreement by giving written
notice to the Seller at any time prior to the Closing: (A) in the
event the Seller has breached its representations, warranties,
covenants or agreements contained in this Agreement, in any respect
material to the transactions contemplated by this Agreement, the Buyer
has notified the Seller of the breach, and the breach has continued
without cure for a period of 30 days after such notice; (B) if the
Closing shall not have occurred on or before October 15, 1998 by
reason of the failure of any condition precedent under Section 7(a)
(unless the failure results primarily from the Buyer breaching any
representation, warranty, covenant or agreement contained in this
Agreement or, unless the All Cash Alternative has become applicable,
in the Asset Transfer Agreement); or (C) a court of competent
jurisdiction or a governmental regulatory or administrative agency or
commission shall have issued an order, decree or ruling or taken any
other action permanently restraining, enjoining or otherwise
prohibiting the transactions contemplated by this Agreement (excluding
the transfer of the Aseptic Business to the Seller if the All Cash
Alternative has become applicable) and such order, decree, ruling or
other action shall have become final and non-appealable; and
(iii) the Seller may terminate this Agreement by giving written
notice to the Buyer at any time prior to the Closing: (A) in the event
the Buyer has breached its representations, warranties, covenants or
agreements contained in this Agreement or, unless the All Cash
Alternative has become applicable, in the Asset Transfer Agreement in
any respect material to the transactions contemplated by this
Agreement, the Seller has notified the Buyer of the breach, and the
breach has continued without cure for a period of 30 days after such
notice; (B) if the Closing shall not have occurred on or before
October 15, 1998 by reason of the failure of any condition precedent
under Section 7(b) (unless the failure results primarily from the
Seller breaching any representation, warranty or covenant contained in
this Agreement or, unless the All Cash Alternative has become
applicable, in the Asset Transfer Agreement); or (C) a court of
competent jurisdiction or a governmental regulatory or administrative
agency or commission shall have issued an order, decree or ruling or
taken any other action permanently restraining, enjoining or otherwise
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prohibiting the transactions contemplated by this Agreement (excluding
the transfer of the Aseptic Business to the Seller if the All Cash
Alternative has become applicable) and such order, decree, ruling or
other action shall have become final and non-appealable.
(b) Effect of Termination. If any Party terminates this Agreement
pursuant to Section 10(a), all rights and obligations of the Parties hereunder
shall terminate without any liability of any Party to any other Party (except
for any liability of any Party then in breach and except for rights and
obligations under the Confidentiality Agreement, which shall survive any such
termination).
11. Miscellaneous.
(a) Press Releases and Public Announcements. Neither Party (nor any of
its Affiliates) shall issue any press release or make any public announcement or
disclosure relating to the subject matter of this Agreement without the prior
written approval of the other Party, which approval shall not be unreasonably
withheld or delayed, unless such disclosure is required by applicable law or
governmental regulation or by order of a court of competent jurisdiction (in
which case prior to making such disclosure the Party which proposes to make such
disclosure shall give written notice to the other Party, describing in
reasonable detail the proposed content of such disclosure, and shall permit the
other Party to review and comment upon the form and substance of such
disclosure).
(b) No Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns; provided, however, that the provisions of
Section 8 concerning indemnification are intended for the benefit of the
Indemnified Parties and their respective heirs, executors, personal
representatives, successors and assigns.
(c) Expenses. Whether or not the transactions contemplated by this
Agreement are consummated, all costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the
Party incurring such expenses; provided that (i) the Buyer shall promptly pay
all out-of-pocket expenses incurred by the Seller or any of its Subsidiaries in
connection with any assistance or cooperation requested by the Buyer pursuant to
the second sentence of Section 6(a) and (ii) the Seller shall promptly pay all
out-of-pocket expenses incurred by the Buyer or any of its Subsidiaries in
connection with any assistance or cooperation requested by the Buyer pursuant to
the second sentence of Section 6(a).
(d) Entire Agreement. This Agreement, the Asset Transfer Agreement and
the Confidentiality Agreement constitute the entire agreement between the
Parties and supersede any prior understandings, agreements or representations by
or between the Parties, written or oral, to the extent they related in any way
to the subject matter hereof.
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(e) Succession and Assignment. This Agreement shall be binding upon
and inure to the benefit of the Parties and their respective successors and
permitted assigns. No Party may assign either this Agreement or any of its
rights, interests or obligations hereunder without the prior written approval of
the other Party.
(f) Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original but which together shall constitute one and
the same instrument.
(g) Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(h) Notices. All notices, requests, demands, claims and other
communications hereunder shall be in writing. Any notice, request, demand, claim
or other communication hereunder shall be sent by registered or certified mail,
return receipt requested, postage prepaid and addressed to the intended
recipient as set forth below:
If to the Seller:
Dean Foods Company
3600 N. River Road
Franklin Park, IL 60131-2185
Attention: President
With a copy (which shall not constitute notice to the Seller) to:
Kirkland & Ellis
200 E. Randolph Drive
Chicago, IL 60601
Attention: Brian D. Hogan, Esq.
If to the Buyer:
Agrilink Foods, Inc.
90 Linden Place
Rochester, NY 14625
Attn: Dennis M. Mullen, Chief Executive Officer
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With a copy (which shall not constitute notice to the Buyer) to:
Harris Beach & Wilcox, LLP
130 East Main Street
Rochester, NY 14604
Attn: David M. Mehalick, Esq.
or by any other means (including personal delivery, expedited courier, messenger
service, telecopy, telex, ordinary mail or electronic mail). No such notice,
request, demand, claim or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
Party may change the address to which notices, requests, demands, claims and
other communications to it hereunder are to be delivered by giving the other
Party notice in the manner herein set forth.
(i) Governing Law. This Agreement shall be governed by and construed
in accordance with the domestic laws of the State of Illinois without giving
effect to any choice or conflict of law provision or rule (whether of the State
of Illinois or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Illinois.
(j) Amendments and Waivers. The Parties may mutually amend any
provision of this Agreement at any time prior to the Closing with the prior
authorization of their respective boards of directors. No amendment of any
provision of this Agreement shall be valid unless the same shall be in writing
and signed by the Parties. No waiver by any Party of any default, misrepre
sentation or breach of warranty or covenant hereunder shall, unless expressly so
provided therein, be deemed to extend to any prior or subsequent default,
misrepresentation or breach of warranty or covenant hereunder or affect in any
way any rights arising by virtue of any prior or subsequent occurrence.
(k) Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(l) Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context otherwise requires. The
word "including" shall mean "including, without limitation." As used in this
Agreement (including any amendments hereto), the masculine, feminine or neuter
gender and the singular or plural number shall be deemed to include the others
whenever the context so requires.
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For purposes of this Agreement, the Targets shall be deemed to be Affiliates of
the Seller prior to the Closing Date and Affiliates of the Buyer after the
Closing Date.
(m) Incorporation of Exhibits and Disclosure Schedules. The Exhibits
identified in this Agreement, the Seller Disclosure Schedule and the Buyer
Disclosure Schedule are incorporated herein by reference and made a part hereof.
*****
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first above written.
AGRILINK FOODS, INC.
By:
--------------------------------------
Title:
-----------------------------------
DEAN FOODS COMPANY
By:
--------------------------------------
Title:
-----------------------------------
<PAGE>
<PAGE>
EXHIBIT A
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (including Schedule A hereto, this "Agreement") is
made on [_____________], 1998, by and between Agrilink Foods, Inc., a New York
corporation ("Licensor"), and Dean Foods Company, a Delaware corporation
("Licensee"). Certain capitalized terms used herein are defined in Section 1.
Recitals:
Pursuant to the Stock Purchase Agreement, dated July 24, 1998, by and
between Licensee and Licensor (the "Stock Purchase Agreement"), Licensee is
transferring to Licensor all of Licensee's right, title and interest in the
trademark set forth on Schedule A attached hereto (the "Trademark").
Licensee is engaged in the vegetable dip, snack dip and guacamole dip
business (the "Continuing Business") and utilizes the Trademark in connection
therewith.
As provided in the Stock Purchase Agreement, Licensee is transferring the
Trademark to Licensor subject to a royalty-free three-year license back to
Licensee of the Trademark for use in the Continuing Business.
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which the parties acknowledge, the parties agree as follows:
1. Definitions
In this Agreement, the following terms shall have the following meanings:
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act.
"Confidential Information" means and includes all information relating to
Dip Products, together with all information concerning any party's business
activities, processes, technology, know-how of every kind, customers, suppliers,
contracts, finances, personnel, research, plans, policies and intentions,
including matters which, though technically not confidential or trade secrets,
might prove prejudicial to the relevant party if disclosed to others.
Confidential Information shall not include information which (a) is or becomes
publicly known otherwise than by a breach of this or any other agreement, (b) is
already known to the disclosing party prior to disclosure by the party claiming
the information was Confidential Information, (c) is disclosed to the disclosing
party by
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a third party who has a legal right to make the disclosure or (d) is required to
be disclosed to the public by applicable law. The parties acknowledge that any
party shall be permitted to disclose Confidential Information required to be
disclosed by law to certain governmental authorities and, in such circumstances,
the disclosing party shall take all reasonable steps to protect the
confidentiality of such Confidential Information.
"Dean Logo" means the bird-on-mailbox logo of Licensee, U.S. Reg. Nos.
1,519,979 and 1,342,947.
"Dip Product" means a vegetable dip, snack dip or guacamole dip product
which is presently or hereafter manufactured, distributed or sold by Licensee or
any of its Affiliates.
"Permitted Use" means use of the Trademark in association with the sale of
a Dip Product.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization or a governmental entity (or any
department, agency or political subdivision thereof).
"Promotional and Advertising Material" means labels, packages, advertising
brochures, catalogues and other written or graphic material, all media
advertising including television, radio, newspaper and other media advertising
and all other materials upon which the Trademark is placed.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"Term" means a term commencing as of the date hereof and ending upon the
third anniversary of the date of this Agreement.
"Territory" means anywhere in the United States or Canada.
2. Grant of Rights
2.1. Subject to the terms and conditions of this Agreement, Licensor grants
to Licensee an exclusive right (including without limitation as against
Licensor) to use the Trademark for any Permitted Use in the Territory during the
Term.
2.2. Licensor shall maintain at its expense the registration of the
Trademark currently in effect as described on Schedule A attached hereto.
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3. No Royalty
3.1. Licensee will have the right to use the Trademark for any Permitted
Use during the Term of this Agreement on a royalty-free basis. Licensee shall
have no obligation to use the Trademark or to sell or attempt to sell any Dip
Products in association with the Trademark.
4. Rights of Ownership
4.1. Licensee acknowledges that:
(a) the Trademark is the exclusive property of Licensor;
(b) nothing in this Agreement gives Licensee any right, title or
interest in or to the Trademark by itself or in combination with
any other words, except in accordance with this Agreement; and
(c) all use and any goodwill generated through the use of the
Trademark shall enure exclusively to the benefit of Licensor.
5. Standards
5.1. Dip Products manufactured and sold, or caused to be sold, by Licensee
in association with the Trademark shall be of a character or quality
substantially equivalent to the respective standards, specifications and
operating procedures relating to Dip Products manufactured and sold, or caused
to be sold, by Licensee before the date of this Agreement.
5.2. Licensee shall use the Trademark only for a Permitted Use.
5.3. Licensee shall not use any other mark, name, style or design (other
than the Dean Logo on the back panel of product packaging) in association with
the Trademark without the written consent of Licensor, which consent shall not
be unreasonably withheld. Licensee shall not add to or modify the Trademark
without the prior written consent of Licensor.
5.4. Licensee shall not register or attempt to register the Trademark or
any other mark, name, style or design which is confusingly similar to the
Trademark, but shall fully cooperate with Licensor by providing any and all
information and materials and executing whatsoever documents as may be
reasonably necessary to facilitate the registration, renewal or maintenance of
the Trademark or the enforcement of the Trademark against infringement, as may
be requested by Licensor at the expense of Licensor; and Licensee shall have no
obligation to maintain the Trademark other than providing such information and
materials and executing such documents.
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6. Right to Inspect
6.1. Licensee shall maintain a vigorous quality control and safety
assurance program with respect to Dip Products. From time to time during the
Term and upon reasonable notice, Licensor shall have the right to appoint at its
expense an independent quality inspector or other representative or professional
to conduct inspections during normal business hours of the manufacturing
operations of Licensee for Dip Products on which Licensee uses the Trademark and
to ensure that Licensee is complying with its obligations under this Agreement.
In addition, from time to time during the Term, Licensor shall have the right to
request and receive samples of Licensee's Promotional and Advertising Material
for Dip Products, and to approve of any material changes therein or thereof from
the versions used by the Seller prior to the Closing Date, which approval shall
not be unreasonably withheld or delayed. Licensor shall cause any inspector or
other representative or professional appointed pursuant to this Section to
execute a confidentiality agreement in favor of Licensee, the form of such
confidentiality agreement to be acceptable to Licensee in its reasonable
judgment.
7. Infringement
7.1. Licensee shall promptly notify Licensor of any conflicting use or any
act of infringement, passing-off or unfair competition involving the Trademark
or any marks which may be confusingly similar to the Trademark which come to
Licensee's attention.
7.2. Licensor, at its own expense, shall have the exclusive right to
institute, defend and settle any litigation or proceedings involving the
Trademark. At Licensor's expense, Licensee shall cooperate with Licensor and
shall supply such information and do such acts as are reasonably requested by
Licensor or desirable in relation to any such litigation or proceedings.
Notwithstanding the foregoing, if Licensor fails to pursue or diligently pursue
a claim or action against a third party which is infringing on the Trademark
(each of such determinations to be made in the good faith judgment of Licensee),
Licensee shall have the right to commence litigation or take any other action
against such third party, with counsel of its own choice, at the sole cost and
expense of (and with any recovery for the sole benefit of) Licensee. In such
event, Licensee shall keep Licensor fully advised of the progress and
disposition of such litigation or action. Licensor shall have no right to
participate in any such litigation or other action or in connection with any
settlement discussions related thereto or to make any decision or determination
in connection therewith. Licensor shall cooperate with Licensee and its counsel
as reasonably requested by Licensee, at the sole cost and expense of Licensee.
8. Indemnity and Recalls
8.1. Licensee shall indemnify Licensor and its successors and assigns, and
their respective directors, officers, employees and agents, and the heirs,
executors and personal representatives of each of the foregoing (the
"Indemnified Parties") in respect of any and all claims, costs, damages, fines,
penalties, expenses and liabilities, including without limitation all economic
losses and all
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legal and other professional costs, which may be suffered or incurred by any
Indemnified Party, in connection with a claim, demand, action, suit or
proceeding brought by a Person and arising out of or relating to (a) the
manufacture, sale or distribution of any Dip Product bearing the Trademark, (b)
the use or distribution by Licensee or its agents of Promotional and Advertising
Material bearing the Trademark or (c) any product liability matter relating to
any Dip Product bearing the Trademark or any alleged defect or failure or
impurity in any Dip Product or its packaging bearing the Trademark including,
without limitation, all costs of any product recall in connection with any Dip
Product bearing the Trademark and any loss of property, economic loss, bodily
injury or death of any Person relating to any such Dip Product or its packaging;
provided, however, that such indemnification shall not extend to claims that the
Trademark used in accordance with this Agreement infringes the trademark or
copyright rights of third parties. Licensor shall not settle any such matter
without obtaining Licensee's prior written consent to the terms of settlement,
such consent not to be unreasonably withheld.
8.2. The need for any product recall of any Dip Product bearing the
Trademark and the manner in which such product recall shall occur shall be
determined by senior executive officers of Licensee in consultation with senior
executive officers of Licensor. Licensee shall pay the costs of all product
recalls relating to any Dip Product bearing the Trademark. Licensee shall handle
all aspects of any such product recall relating to any Dip Product bearing the
Trademark. In the event of a product recall, Licensor and Licensee shall
mutually agree upon the manner in which all consumer queries and complaints are
to be handled, and Licensee hereby agrees to expressly disclaim, in each
communication required as part of such recall, any association between such
recall and Licensor's vegetable business which uses the Trademark.
9. Termination
9.1. If one party is in material default of its obligations under this
Agreement, the other party may give notice in writing to the defaulting party
requiring the defaulting party to remedy the default within 30 days. If the
defaulting party fails to remedy the default within 30 days, the other party may
terminate this Agreement by notice in writing to the defaulting party effective
on the date of delivery of the written notice in accordance with this Agreement.
9.2. If Licensee files a petition under any federal or state bankruptcy or
insolvency law seeking reorganization, arrangement or any other relief
thereunder, or a petition is filed against Licensee under any federal or state
bankruptcy or insolvency law, or Licensee makes an assignment for the benefit of
creditors or seeks or consents to the appointment of a receiver, liquidator or
trustee, or a receiver, liquidator or trustee is appointed for Licensee or its
property, or Licensee otherwise demonstrates an inability to pay its debts as
they become due, then this Agreement shall terminate automatically.
9.3. This Agreement shall terminate at the end of the Term.
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10. Consequences of Termination
10.1. Upon termination of this Agreement, Licensee shall:
(a) immediately cease all use of the Trademark and thereafter shall
not sell any products bearing the Trademark; and
(b) immediately cease use of the Promotional and Advertising Material
which is in Licensee's possession, power or control.
11. Disclosure of Confidential Information
11.1. The parties agree that they shall not, directly or indirectly, at any
time either during the continuance of this Agreement or at any time following
the termination hereof, disclose or use any Confidential Information which they
acquire or learn by reason of this Agreement.
11.2. The parties acknowledge that a breach of this Section of this
Agreement by any party may cause irreparable harm and in the event of such a
breach, the nondefaulting party may seek immediate equitable and other relief
from a court of competent jurisdiction upon proof of such breach.
12. Amendments and Waivers
The parties may mutually amend any provision of this Agreement. No
amendment of any provision of this Agreement shall be valid unless the same
shall be in writing and signed by the parties. No waiver by any party of any
default, misrepresentation or breach of warranty or covenant hereunder shall,
unless expressly so provided therein, be deemed to extend to any prior or subse
quent default, misrepresentation or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent
occurrence.
13. Headings
The section headings contained in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation
of this Agreement.
14. Governing Law
This Agreement shall be governed by and construed in accordance with the
domestic laws of the State of Illinois without giving effect to any choice or
conflict of law provision or rule (whether of the State of Illinois or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Illinois.
15. Notices
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All notices, requests, demands, claims and other communications hereunder
shall be in writing. Any notice, request, demand, claim or other communication
hereunder shall be sent by registered or certified mail, return receipt
requested, postage prepaid and addressed to the intended recipient as set forth
below:
If to Licensor:
Agrilink Foods, Inc.
90 Linden Place
Rochester, NY 14625
Attn: Mr. Dennis M. Mullen, Chief Executive Officer
With a copy (which shall not constitute notice to Licensor) to:
Harris Beach & Wilcox, LLP
130 East Main Street
Rochester, NY 14604
Attn: David M. Mehalick, Esq.
If to Licensee:
Dean Foods Company
3600 N. River Road
Franklin Park, IL 60131-2185
Attention: President
With a copy (which shall not constitute notice to Licensee) to:
Kirkland & Ellis
200 E. Randolph Drive
Chicago, IL 60601
Attention: Brian D. Hogan, Esq.
or by any other means (including personal delivery, expedited courier, messenger
service, telecopy, telex, ordinary mail or electronic mail). No such notice,
request, demand, claim or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
party may change the address to which notices, requests, demands, claims and
other communications to it hereunder are to be delivered by giving the other
party notice in the manner herein set forth.
16. Independent Contractors
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The relationship between the parties is that of independent contractors.
Nothing contained in this Agreement shall be deemed to create a partnership,
association, joint venture or agency between the parties.
17. Extended Meanings
The use of the singular in this Agreement shall include the plural and vice
versa.
18. Entire Agreement
This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes any prior understandings,
agreements or representations by or between the parties, written or oral, to the
extent they relate in any way to such subject matter.
19. Other Limitations
Notwithstanding anything to the contrary contained in this Agreement,
Licensor shall be excused from its obligations under Section 2 of this Agreement
to the extent that there is any infirmity in the Trademark or its registration
listed on Schedule A attached hereto as of the date of this Agreement or the use
of the Trademark by Licensee as of the date of this Agreement or thereafter
infringes the rights of any third party.
20. Severability
Any term or provision of this Agreement that is invalid or unenforceable in
any situation in any jurisdiction shall not affect the validity or
enforceability of the remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any other situation or in
any other jurisdiction.
21. Assignment
Either party may assign this Agreement in connection with the transfer or
sale of all or substantially all of its business to which the Trademark relates,
with the prior written consent of the other party, or the merger or
consolidation of that party with or into another entity, without the prior
written consent of the other party. In addition, Licensee may assign this
Agreement, or sublicense any of its rights under this Agreement, to any of its
Affiliates, and shall promptly thereafter notify the Licensor of any such
assignment. This Agreement shall be binding upon any permitted assignee or
successor of either party and any permitted sublicensee of Licensee. No
assignment by either party or sublicense by Licensee shall relieve the assignor
or sublicensor from its obligations hereunder.
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22. Counterparts
This Agreement may be executed in counterparts, each of which shall be
deemed an original but which together shall constitute one and the same
instrument.
* * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first above written.
AGRILINK FOODS, INC.
By:
--------------------------------------
Title:
-----------------------------------
DEAN FOODS COMPANY
By:
--------------------------------------
Title:
-----------------------------------
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SCHEDULE A
TRADEMARK
<TABLE>
<CAPTION>
MARK REGISTRATION NO.
- ---- ----------------
<S> <C>
"BIRDS EYE" U.S. Reg. No. 1,982,485
</TABLE>
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EXHIBIT B
Continued Employee Severance Pay and Benefits
1. Entitlement to Severance Benefits. An Employee shall be entitled to
the Benefits set forth in Section 2 below (a) upon any involuntary termination
of his or her employment with DFVC at or subsequent to the Closing Date, unless
such termination is due to his or her death or is a termination by DFVC for
Cause or Disability, or (b) upon any voluntary termination of his or her
employment with DFVC at or subsequent to the Closing Date (other than voluntary
retirement) that is for Good Reason; provided in either case that the
termination occurs, with respect to any VP Employee, within two years after the
Closing Date and, with respect to any other Employee, within one year after the
Closing Date.
2. Amount of Severance Benefits. The Benefits payable to each VP
Employee under the circumstances set forth in Section 1 shall be equal to:
(a) an amount equal to 2 times Compensation, which amount shall be
payable in cash in equal monthly installments over the 24 month
period beginning in the first month immediately following such
termination;
(b) continued DFVC-provided medical, dental and life insurance
coverage for two years after the date employment ends, on the
same basis the VP Employee received such coverage immediately
prior thereto (or, if more favorable to the VP Employee, on the
same basis the VP Employee received such coverage immediately
prior to the Closing Date); and
(c) prompt reimbursement of out-placement fees up to $10,000.
The Benefits payable to each Optionee Employee under the circumstances
set forth in Section 1 shall be equal to:
(a) an amount equal to 1 times Compensation, which amount shall be
payable in cash in equal monthly installments over the 24 month
period beginning in the first month immediately following such
termination; and
(b) continued DFVC-provided medical, dental and life insurance
coverage for one year after the date employment ends, on the same
basis the Optionee Employee received such coverage immediately
prior thereto (or, if more favorable to the Optionee Employee, on
the
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same basis the Optionee Employee received such coverage
immediately prior to the Closing Date).
The Benefits payable to each Other Employee under the circumstances
set forth in Section 1 shall be equal to:
(a) an amount equal to 1.5 times Weekly Compensation times the number
of completed years of service with DFVC (and related companies)
and its predecessors as of the date of termination, which amount
shall be payable in cash in equal monthly installments over the
24 month period beginning in the first month immediately
following such termination.
In addition to the foregoing, under the circumstances set forth in
Section 1, the Buyer will also cause DFVC to pay in cash to each Employee who
immediately prior to the Closing Date is a participant in the Seller's Annual
Incentive Bonus Plan an amount equal to (a) the pro rata portion (based on days
elapsed since the next preceding last Saturday in May) of the target bonus for
such Employee under any incentive bonus plan in which such Employee participates
at the time of such termination or (b) if such termination occurs on or prior to
May 29, 1999, and if such amount is greater than the amount described in (a),
the amount accrued for the Seller's 1999 fiscal year under the Seller's Annual
Incentive Bonus Plan as of the Closing Date with respect to such Employee, which
amount shall be payable promptly following May 29, 1999; provided that if the
employment of any such Employee is terminated prior to May 29, 1999 for any
reason other than by a Target for Cause, such bonus payment shall be made
immediately following such termination.
3. Voluntary Termination for Good Reason. Voluntary termination by the
Employee for Good Reason means termination due to the occurrence of one or more
of the following events:
(a) a material adverse change in the Employee's duties or job
responsibilities without the Employee's express written consent;
(b) a reduction in the Employee's base salary or target incentive
compensation without the Employee's express written consent;
(c) a material reduction, in the aggregate, in the kind or level of
employee benefits or fringe benefits to which the Employee was
entitled immediately prior to the Closing Date, other than under
equity purchase or equity awards plans and provided that the
substitution of a nonqualified plan or arrangement for a
qualified plan or arrangement in and of itself shall not be
deemed to involve a change in benefits; or
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(d) the Buyer or DFVC requiring the Employee to relocate the
Employee's office to a place more than fifty miles from its
present location, without the Employee's express written consent.
4. Definitions.
"Cause" means with respect to an Employee (i) the Employee's
conviction of a felony or a crime involving moral turpitude; (ii) the Employee's
conviction of a fraud; (iii) the Employee's commission of any act involving
dishonesty or disloyalty with respect to DFVC (or any related entity); (iv)
intentional conduct by the Employee tending to bring DFVC (or any related
entity) into substantial public disgrace or disrepute; (v) the Employee`s gross
negligence or willful misconduct with respect to DFVC (or any related entity);
or (vi) the Employee's abandonment of employment with DFVC (or any related
entity) other than as a result of death or Disability.
"Compensation" means the Employee's base annual salary as of the
Closing Date, or as of the date of termination, if greater, plus the amount of
the targeted incentive compensation bonus that would be payable for the year in
which the termination occurs under any such incentive plan in which the Employee
participates. "Weekly Compensation" is determined by dividing Compensation by
52.
"Disability" means termination under the circumstances set forth in
the applicable disability policies in effect immediately prior to the Closing
Date.
"Employee" means each Continued Employee other than any Continued
Employee employed only on a seasonal basis and any Continued Employee covered by
a collective bargaining agreement.
"VP Employee" means each Employee who is a President or Vice President
of DFVC at any time at or after the Closing Date.
"Optionee Employee" means each Employee, other than a VP Employee, who
has received an option under the Dean Foods Company 1989 Stock Awards Plan at
any time prior to the Closing Date.
"Other Employee" means each Employee who is not a VP Employee or an
Optionee Employee.
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EXHIBIT C
CERTAIN TITLE COMMITMENT ITEMS
SEE ATTACHED.
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EXHIBIT C
Certain Title Commitment Issues
WASECA, MINNESOTA
1. Terms and Conditions in Warranty Deed, dated April 25, 1997.
WATSONVILLE, CALIFORNIA
1. Title in Richard A. Shaw, Inc.
2. Deed of Trust, May 1995 through Farmers Home Administration, $5.5 million,
$900,000, and $600,000.
3. Deed of Trust, May 1991, Farmers Home Administration, $5.5 million.
4. City of Watsonville Redevelopment Ordinance, May 26, 1992.
5. Ground Lease, dated May 1987 to Americold Corporation.
UVALDE, TEXAS
1. Title in Frio Foods, Inc.
2. Deed of Trust, Assignment of Income and Rents, John Hancock Mutual Life
Insurance Company.
FAIRWATER, WISCONSIN
1. Title in The Larson Company (partially).
2. Wisconsin Fund Private Sewage System Rehabilitation, May 7, 1982.
3. Stipulation Agreement, March 24, 1996.
4. Lease Agreement, Village of Fairwater and American Storage Dairy Company.
[illegible], WISCONSIN
1. Title in The Larson Company (partially).
<PAGE>
<PAGE>
2. Mortgage from The Larson Company to Libby, et al., November 30, 1979,
$5,697,500.
GREENBAY, WISCONSIN
1. Title in The Larson Company (partially).
2. Agreements between Larson Foods and Aid Association for Lutherans.
SPRINGVILLE, WISCONSIN (CAMBRIA)
1. Mortgage by the Village of Cambria to First Trust Company of St. Paul,
September 11, 1973, $2,000,000.
2. Land Contract between Howard O. Albrecht and Dolores M. Albrecht.
HORTONVILLE, WISCONSIN
1. Title in the Larson Company.
2. Agreement between Fox Valley Canning Company and AID Association for
Lutherans, May 7, 1969.
3. Agreement between the Larson Company and AID Association for Lutherans.
ARLINGTON, MINNESOTA
1. Title in the City of Arlington, Big Stone Incorporated, Big Stone Canning
Company, Frank H. Luepke, Budahm Enterprises, Inc. and Larson Company
(partially).
2. Mortgage from Big Stone, Incorporated to Minnesota Energy and Economic
Development Authority, November 1, 1984, $510,000.
3. Mortgage for City of Arlington to National Guaranty Bank of Minneapolis,
July 1, 1974, $1,269,000.
The correct date of this item is March 10 1997.
[Illegible] to the Closing, the Buyer will in good faith consider removing
[illegible] item from this Exhibit C to the extent such item does not
[illegible] effect the marketability of title, or impose on the
[illegible] any significant liability.
Dated: 7/24/98 Dennis M. Mullen
------------------------ ----------------------------------
Dennis M. Mullen
<PAGE>
<PAGE>
EXHIBIT D
Substance of Opinion of General
Counsel to the Seller *
1. Each of the Seller, Holding Company and DFVC is a corporation existing and
in good standing under the laws of the jurisdiction of its incorporation.
2. The Board of Directors of the Seller has adopted by requisite vote the
resolutions necessary to authorize the execution, delivery and performance
of this Agreement, the Asset Transfer Agreement (and the License Agreement
contemplated thereby), the Closing Date Birds Eye License Agreement and the
assignment document with respect to the Existing Birds Eye License
Agreement by the Seller. No approval of this Agreement, the Asset Transfer
Agreement (or the License Agreement contemplated thereby), the Closing Date
Birds Eye License Agreement or the assignment document with respect to the
Existing Birds Eye License Agreement by the stockholders of the Seller is
required.
3. The Board of Directors and stockholders of Dean International have adopted
by requisite vote the resolutions necessary to authorize the sale of
Holding Company Common Stock as contemplated by this Agreement.
4. The Seller has corporate power to enter into and perform its obligations
under this Agreement, the Asset Transfer Agreement (and the License
Agreement contemplated thereby), the Closing Date Birds Eye License
Agreement and the assignment document with respect to the Existing Birds
Eye License Agreement. The Seller has duly executed and delivered this
Agreement, the Asset Transfer Agreement (and the License Agreement
contemplated thereby), the Closing Date Birds Eye License Agreement and the
assignment document with respect to the Existing Birds Eye License
Agreement. Each of this Agreement, the Asset Transfer Agreement (and the
License Agreement contemplated thereby), the Closing Date Birds Eye License
Agreement and the assignment document with respect to the Existing Birds
Eye License Agreement is the valid and binding obligation of the Seller and
is enforceable against the Seller in accordance with its terms.
5. Dean International has corporate power to sell the Holding Company Common
Stock as contemplated by this Agreement.
6. The Seller owns beneficially and of record all of the outstanding stock of
DFVC. The issuance of all such stock has been duly authorized and all of
such stock has been validly issued and is fully paid and nonassessable.
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7. Dean International owns beneficially and of record all of the outstanding
stock of Holding Company. The issuance of all such stock has been duly
authorized and all of such stock has been validly issued and is fully paid
and nonassessable.
* If the License Agreement contemplated by the Asset Purchase Agreement is
to be entered into by a Subsidiary of the Seller, opinions corresponding to
those described above as appropriate shall also be given with respect to
such Subsidiaries.
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EXHIBIT E
Substance of Opinion of
Special Counsel to Birds Eye Mexico
1. Birds Eye Mexico is a limited liability company existing and in good
standing under the laws of Mexico.
2. The authorized capital stock of Birds Eye Mexico consists of (i) 1,000
shares of Birds Eye Mexico Series A Stock and (ii) 5,000 shares of Birds
Eye Mexico Series B Stock. 1,000 shares of Birds Eye Mexico Series A Stock
and 5,000 shares of Birds Eye Mexico Series B Stock are outstanding and no
shares of Birds Eye Mexico Series A Stock or Series B Stock are held in
treasury. The issuance of all such outstanding shares was duly authorized
and all of such outstanding shares have been validly issued and are fully
paid and nonassessable. All of the shares of Birds Eye Mexico Series A
Stock are held of record by Holding Company. 4,999 shares and 1 share of
Birds Eye Mexico Series B Stock are held of record by Holding Company and
DFVC, respectively.
3. The consummation of the transactions contemplated by this Agreement does
not violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge or other restriction of any
government, governmental agency or court to which Birds Eye Mexico is
subject or any provision of the charter or bylaws (or similar governing
documents) of Birds Eye Mexico. Birds Eye Mexico does not need to obtain
any authorization, consent or approval of its directors or stockholders, or
to give any notice to, make any filing with or obtain any authorization,
consent or approval of, any government or governmental agency, in order for
the Parties to consummate the transactions contemplated by this Agreement,
other than any notice, filing, authorization, consent or approval that has
been given, made or obtained.
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EXHIBIT F
Substance of Opinion of Counsel
to the Buyer*
1. The Buyer is a corporation existing and in good standing under the laws of
the jurisdiction of its incorporation.
2. The Board of Directors of the Buyer has adopted by requisite vote the
resolutions necessary to authorize the execution, delivery and performance
of this Agreement, the Asset Transfer Agreement (and the License Agreement
contemplated thereby), the Closing Date Birds Eye License Agreement and the
assumption document with respect to the Existing Birds Eye License
Agreement by the Buyer. No approval of this Agreement, the Asset Transfer
Agreement (or the License Agreement contemplated thereby), the Closing Date
Birds Eye License Agreement or the assumption document with respect to the
Existing Birds Eye License Agreement by the stockholders of the Buyer is
required.
3. The Buyer has corporate power to enter into and perform its obligations
under this Agreement, the Asset Transfer Agreement (and the License
Agreement contemplated thereby), the Closing Date Birds Eye License
Agreement and the assumption document with respect to the Existing Birds
Eye License Agreement. The Buyer has duly executed and delivered this
Agreement, the Asset Transfer Agreement (and the License Agreement
contemplated thereby), the Closing Date Birds Eye License Agreement and the
assumption document with respect to the Existing Birds Eye License
Agreement. This Agreement, the Asset Transfer Agreement (and the License
Agreement contemplated thereby), the Closing Date Birds Eye License
Agreement and the assumption document with respect to the Existing Birds
Eye License Agreement are the valid and binding obligation of the Buyer and
are enforceable against the Buyer in accordance with their respective
terms.
* If any of the Target Shares, the Seller's Target-Related Intellectual
Property or the Existing Birds Eye License Agreement is conveyed to one or
more Subsidiaries of the Buyer rather than to the Buyer, opinions
corresponding to those described above shall also be given with respect to
the Subsidiaries which are the recipients and, if applicable, with respect
to the guarantee contemplated in Section 2(c).
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AMENDATORY AGREEMENT
THIS AMENDATORY AGREEMENT (this "Amendatory Agreement") is entered into
on September 10, 1998, by and between Dean Foods Company, a Delaware corporation
("Dean"), and Agrilink Foods, Inc., a New York corporation ("Agrilink"), with
respect to the Stock Purchase Agreement dated July 24, 1998 by and between them
(the "Stock Purchase Agreement") and the Asset Transfer Agreement dated July 24,
1998 by and between them ("the Asset Transfer Agreement"). Dean and Agrilink are
sometimes referred to herein as a "Party" and collectively as the "Parties".
In consideration of the premises and the mutual agreements herein
contained, the Parties agree as follows:
1. Each of the following items is removed from Exhibit C of the
Stock Purchase Agreement:
WASECA, MINNESOTA item 1
WATSONVILLE, CALIFORNIA item 5
FAIRWATER, WISCONSIN items 2 and 3
2. The term "Title Insurance Commitments" used in the Stock Purchase
Agreement includes, in addition to the title insurance
commitments identified in Section 3(b)(x)(D) of the Stock
Purchase Agreement, each of the following:
Commitment for Title Insurance dated July 27, 1998 issued by
First American Title Insurance Company related to the Ft.
Atkinson, Wisconsin Owned Premises.
Commitment for Title Insurance dated August 10, 1998 issued by
First American Title Insurance Company related to the Cedar
Grove, Wisconsin Owned Premises.
Commitment for Title Insurance dated July 13, 1998 issued by
First American Title Insurance Company related to the Brillion,
Wisconsin Owned Premises.
3. The two pages attached hereto as Appendix A replace Section (O)
and (P) of Schedule 3(b)(xv) of the Seller Disclosure Schedule
delivered by Dean in connection with the Stock Purchase
Agreement.
4. The three pages attached hereto as Appendix B replace Schedule
3(b)(xxviii) of the Seller Disclosure Schedule delivered by Dean
in connection with the Stock Purchase Agreement.
5. Notwithstanding Section 2(d) of the Stock Purchase Agreement,
Dean agrees that Agrilink may delay the Closing under the Stock
Purchase Agreement from September 8, 1998 until as late as
September 22, 1998. Dean certifies to Agrilink that, after giving
effect to this Amendatory Agreement, each of the conditions
specified in Section 7(a)(i) through (iv), inclusive, of the
Stock Purchase Agreement (in the case of the condition specified
in Section 7(a)(iv), to the Knowledge of the Seller (as defined
in the Stock Purchase Agreement)) is satisfied on September 8,
1998. In return for such agreement and certification, Agrilink
<PAGE>
<PAGE>
waives each of the conditions to the obligation of Agrilink to
consummate the Closing set forth in Section 7(a)(i) through (vi),
inclusive, of the Stock Purchase Agreement and in Section
7(a)(xii) of the Stock Purchase Agreement except insofar as such
Section relates to Sections 7(a)(vii) through (xi), inclusive, of
the Stock Purchase Agreement.
6. Dean acknowledges that pursuant to the final sentence of Section
3(v) of the Asset Transfer Agreement, Agrilink has furnished
information to Dean under cover of David M. Mehalick's letter to
Brian D. Hogan dated August 18, 1998. Agrilink acknowledges that
pursuant to the final sentence of Section 3(b)(xxiv) of the Stock
Purchase Agreement, Dean has furnished information to Agrilink
under cover of Dale Hecox's undated letter to David M. Mehalick
received by facsimile on August 21, 1998. Agrilink confirms that
the post-retirement medical benefit obligations to current and
former salaried employees of Dean Foods Vegetable Company
("DFVC"), to current and form Wisconsin union and non-union,
hourly employees of DFVC and to union retirees of the Birds Eye
(General Foods) Fulton, New York and Waseca, Minnesota plants
described in such information are obligations of DFVC for which
Dean shall bear no further responsibility subsequent to the
Closing under the Stock Purchase Agreement.
7. Each of the following items is removed from Schedule A to the
form of License Agreement that is Exhibit A to the Asset Transfer
Agreement:
MARK REGISTRATION NO.
---- ----------------
Thank You 384,355
Thank You 592,509
Thank You 746,304
Thank You 749,255
Thank You 300,126
8. In the event the third parties that provide Agrilink with
financing in connection with the transactions contemplated by the
Stock Purchase Agreement require that Agrilink merger DFVC into
Agrilink promptly following the Closing under the Stock Purchase
Agreement, and provided Agrilink does not change its name in such
merger, Dean waives the obligation of Agrilink in the first
sentence of Section 6(f) of the Stock Purchase Agreement. The
second sentence of Section 6(f) of the Stock Purchase Agreement
will continue to apply notwithstanding such waiver. Any such
merger shall be a matter solely between Agrilink and such third
parties, and shall not be a transaction contemplated by the Stock
Purchase Agreement or the Asset Transfer Agreement for purposes
thereof. In the event of any such merger, references to DFVC in
the Stock Purchase Agreement with regard to any time subsequent
to such merger (for example, in Section 6(e) of, and in Exhibit B
to, the Stock Purchase Agreement) shall be deemed references to
Agrilink.
9. Item 3 of the first page of Schedule 3(k) of the Transferor
Disclosure Schedule delivered by Agrilink in connection with the
Asset Transfer Agreement is revised to
2
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<PAGE>
read as follows (with an indication that the listed foreign
trademark applies to the Aseptic Business):
3. Foreign Trademarks (See attached regarding registrations)
BONUS and Design
and the following is added to the referenced attachment:
<TABLE>
<CAPTION>
Mark Reg./Appn. No. Goods
---- -------------- --------
<S> <C> <C>
BONUS Canada canned products; ham and
and Design 104665 chicken sandwich deviled
ham sandwich spread, beef
and chicken sandwich
spread, ham and pickle
sandwich spread
</TABLE>
10. Item 15 of Schedule 3(n) of the Transferor Disclosure Schedule
delivered by Agrilink in connection with the Asset Transfer
Agreement is revised to add the following: Co-Pack Agreement
dated as of June 21, 1995 with Associated Milk Producers, Inc.
11. The Stock Purchase Agreement shall be amended to add the
following Section 6(k) which shall be and read as follows:
(k) Utilization of Lawson Software. Seller agrees to pay
or reimburse Targets for the initial licensing fee of
$63,000 payable to Lawson Associates, Inc. for continued
use by Targets of Lawson Software as described in the
letter to Eric Blanchard dated September 9, 1998.
12. Section 2(f)(i) of the Stock Purchase Agreement shall be amended
to replace the number "3" with the number "4".
13. Schedule 3(k) of the Transferor Disclosure Schedule delivered by
Agrilink in connection with the Asset Transfer Agreement is
further revised to add the following disclosure:
6. Security Interests.
Immediately prior to the Closing, Transferor will
grant a Security Interest in the trademarks
referred to in paragraph 2 above to Harris Trust &
Savings Bank, which Security Interest will be
subordinated in all respects to the rights of
Transferee under the License Agreement appearing as
Exhibit A to the Asset Transfer Agreement.
Except as expressly provided in this Amendatory Agreement, the Stock
Purchase Agreement and the Asset Transfer Agreement shall remain unamended and
unwaived and shall remain in full force and effect in accordance with their
respective terms. As used in the Stock
3
<PAGE>
<PAGE>
Purchase Agreement and the Asset Transfer Agreement, references to "this
Agreement" or the like shall refer to the same as modified by this Amendatory
Agreement.
IN WITNESS WHEREOF, the Parties have executed this Amendatory Agreement
on the date first above written.
DEAN FOODS COMPANY
By: /s/ Eric A. Blanchard
-----------------------------
Title: Vice President
----------------------------
AGRILINK FOODS, INC.
By: /s/ Earl L. Powers
-----------------------------
Title: Vice President
-----------------------------
4
<PAGE>
<PAGE>
SECOND AMENDATORY AGREEMENT
THIS SECOND AMENDATORY AGREEMENT (this "Second Amendatory Agreement") is
entered into on September 23, 1998, by and between Dean Foods Company, a
Delaware corporation ("Dean"), and Agrilink Foods, Inc., a New York corporation
("Agrilink"), with respect to the Stock Purchase Agreement dated July 24, 1998
by and between them and the Asset Transfer Agreement dated July 24, 1998, by and
between them, in each case as previously amended by the Amendatory Agreement
dated September 10, 1998 by and between them (the "Stock Purchase Agreement" and
the "Asset Transfer Agreement", respectively). Dean and Agrilink are sometimes
referred to herein as a "Party" and collectively as the "Parties".
In consideration of the premises and the mutual agreements herein
contained, the Parties agree as follows:
1. The first sentence of Section 2(b) of the Stock Purchase
Agreement is amended to read as follows:
The consideration referred to in Section 2(a) is (i) $360,000,000
in cash, adjusted as provided in Section 2.2(f)(ii) and increased
by the amount of the purchase price increase (if any) provided
in Section 6(b), (ii) the Aseptic Business of the Buyer, and
(iii) a promissory note of the Buyer in the form of the note
attached to the Second Amendatory Agreement dated September 23,
1998 by and between the Parties as Exhibit A (the "Note")
(collectively, the "Purchase Price").
2. Section 2(e) of the Stock Purchase Agreement is amended to add
the following at the end thereof:
and (vi) the Buyer will deliver to the Seller the Note.
3. The Seller and the Buyer agree that the Buyer withdraws the
election previously delivered to the Seller pursuant to Section
6(b) of the Stock Purchase Agreement and that such Section 6(b)
is amended to read as follows:
(b) Section 338(h)(10) Election. At the option of
the Buyer, and provided written request (accompanied by Buyer's
payment to Seller of cash in an amount equal to the sum of (i)
$13,200,000 plus (ii) an amount sufficient, in the good faith
judgment of Seller, to reimburse Seller on an after-tax basis for
any estimated tax penalty incurred by the Seller as a result of
the deferral of the Section 338(h)(10) Election until a date
subsequent to the Closing) is made of the Seller by the Buyer at
least ninety days prior to July 15, 1999, the Seller will join
with the Buyer in making an election on or before July 15, 1999
under Section 338(h)(10) of the Code (and any corresponding
elections under state or local tax law) (collectively a "Section
338(h)(10) Election") with respect to the purchase and sale of
the capital stock of DFVC and Holding Company hereunder. Any such
request to the Seller shall constitute Buyer's representation and
warranty that it is eligible to make the Section 338(h)(10)
Election. Any amount payable by Buyer pursuant to this Section
6(b) will be treated as additional purchase price, but only if
and when Buyer is required to make payment thereof.
<PAGE>
<PAGE>
4. Notwithstanding the definitions thereof in Section 1 and 2(f)(i)
of the Stock Purchase Agreement, respectively (a) "Closing Date
Adjusted Net Working Capital" will be determined as of the close
of business on September 23, 1998, and in making such
determination the production variance of the period subsequent to
the close of business on September 21, 1998 shall be twice the
daily average production variance for the week ended September
21, 1998; and (b) "Estimated Closing Date Adjusted Net Working
Capital" will be calculated as of the close of business on
September 21, 1998.
5. Notwithstanding the definitions thereof in Sections 1 and 2(e)(i)
of the Asset Transfer Agreement, respectively (a) "Closing Date
Inventory" will be determined as of the close of business on
September 23, 1998; and (b) "Estimated Closing Date Inventory"
will be calculated as of the close of business on September 21,
1998.
6. Paragraphs 6 of Schedule 3(k) of the Transferor Disclosure
Schedule delivered by Agrilink in connection with the Asset
Transfer Agreement is amended to insert after the words "in
paragraph 2 above" the words "(other than the Bonus trademarks)".
7. In addition to other amounts payable by Agrilink to Dean at the
Closings under the Stock Purchase Agreement and the Asset
Transfer Agreement, Agrilink will pay to Dean the following:
(a) $1,249,392.88, an amount equal to the aggregate
of (i) Dean Foods Vegetable Company's payroll checks deliverable
subsequent to the Closing Date and on or prior to September 25,
1998 assuming there are no personnel taken on at Dean Foods
Vegetable Company subsequent to the Closing Date and on or prior
to September 30, 1998 and (ii) Dean Foods Vegetable Company's
federal and Minnesota withholding payments due September 28 and
29, 1998 assuming no Dean Foods Vegetable Company payroll is paid
subsequent to the Closing Date except as contemplated in (i)
above. (Dean agrees that funds belonging to it (including after
giving effect to 14 below) will be in the Dean Foods Vegetable
Company account on which such payroll checks are written, as and
when such checks are presented, in amounts sufficient to pay such
checks, and Dean agrees to make with its own funds such
withholding payments);
(b) $24,080, representing the Michigan state and
county transfer tax payable by Agrilink in connection with its
transfer of its Benton Harbor, Michigan facility pursuant to the
Asset Transfer Agreement, which amount was advanced to Southwest
Metropolitan Title by Dean on Agrilink's behalf at Agrilink's
request; and
(c) $8,423.50, representing a pro ration as of the
Closing Date of real estate taxes on such facility to become due
and payable for the current period subsequent to the Closing
Date.
2
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<PAGE>
8. Each of the following items is removed from Exhibit C of the
Stock Purchase Agreement:
UVALDE, TEXAS item 2
SPRINGVILLE, WISCONSIN (CAMBRIA) item 2
9. Agrilink shall use its best efforts to cause Dean to be fully and
forever released, not later than the first anniversary of the
Closing Date under the Stock Purchase Agreement, in a writing
satisfactory to Dean, from all obligations under the Guaranty
Agreement dated March 8, 1991 (the "Cascade Guaranty") with
respect to the obligations of Dean Foods Vegetable Company under
the Construction and Storage Agreement (the "Cascade Agreement")
dated December 14, 1990 between Dean Foods Vegetable Company (as
successor to Richard A. Shaw, Inc.) and Cascade Refrigerated
Services, Inc. ("Cascade"), which Cascade Guaranty was assigned
by Cascade to Metropolitan Life Insurance Company.
10. Until payment in full of the Promissory Note dated December 13,
1998 (the "Hancock Note") to which the Guaranty dated March, 1992
(the "Hancock Guaranty" and, together with the Cascade Guaranty,
the "Guarantees") guaranteeing the obligations of Dean Foods
Vegetable Company, as successor to Frio Foods, Inc., to John
Hancock Mutual Life Insurance Company relates and until Dean is
released from the Cascade Guaranty, Agrilink shall cause Dean
Foods Vegetable Company to timely perform all of its obligations
under the Cascade Agreement and the Hancock Note and Agrilink
further agrees as follows: In the event that Dean is required to
make payment to Cascade, Metropolitan Life, John Hancock Mutual
Life Insurance Company or any other party as a result of any of
the Guarantees, and provided Dean gives written notice to
Agrilink of the amount Dean is required to pay along with any
supporting documentation, Agrilink shall, within 15 days of
receipt of such notice, pay such amounts in immediately available
funds to Dean or as directed by Dean. In the event that Agrilink
disputes any amounts claimed to be owed under either of the
Guarantees, it shall pay the amounts in dispute into escrow
pending resolution of such dispute.
11. The Parties agree to attempt in good faith subsequent to the
Closing Date to agree upon procedures to deal with the issues
raised by the unsigned letter agreement dated September 18, 1998
attached to this Second Amendatory Agreement as Exhibit B.
12. Exhibit B to the Asset Transfer Agreement is amended to include
the operative provisions of the form of unsigned letter agreement
attached to this Second Amendatory Agreement as Exhibit C.
13. In furtherance of the intent of Section 6(i) of the Stock
Purchase Agreement, the Parties agree to be bound by the
provisions of the form of letter agreement dated September 18,
1998 attached hereto as Exhibit D. The parties further agree to
be bound (and Dean agrees to cause Amboy of Michigan, L.L.C. to
be bound) by corresponding provisions for purposes of the Asset
Transfer Agreement.
3
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<PAGE>
14. The Parties agree that the following Dean Foods Vegetable Company
bank accounts (the "Accounts"), and the funds therein at the
Closing Date, are intended to be the property of Dean
notwithstanding the transfer of Dean Foods Vegetable Company's
stock to Agrilink pursuant to the Stock Purchase Agreement: Bank
of America, 1491800186; Bank of Montreal, 0004-1526-930;
Associated Kellogg, 1477926, 19395047, 19364188 and 19407511;
Harris Trust and Savings Bank, 238-4048; and Wachovia,
0454066112. The Parties agree to cause the transfer, effective as
of the Closing Date, of the Accounts and the funds therein at the
Closing Date to Dean as soon as possible subsequent to the
Closing Date. In the interim, Agrilink shall not cause, or permit
Dean Foods Vegetable Company to cause, the transfer of any of the
funds in any of the Accounts. Nothing in the foregoing shall
preclude the automatic transfer of any such funds pursuant to the
terms of the agreements currently governing the Accounts. Dean
agrees that in the event any of the banks at which the Accounts
are located or any other person or entity has an enforceable
claim specifically satisfiable out of any of such funds (as
opposed to out of the funds of Dean or Dean Foods Vegetable
Company in general) for which Dean Foods Vegetable Company is
liable, and provided Agrilink gives written notice to Dean of the
amount Dean Foods Vegetable Company is required to pay along with
any supporting documentation, Dean will, within 15 days of
receipt of such notice, reimburse Dean Foods Vegetable Company
for such claim to the extent of such funds. In the event that
Dean disputes any amounts claimed, it shall pay the amounts in
dispute into escrow pending resolution of such dispute.
15. Dean agrees to cooperate with Agrilink in its attempts to obtain
the required consent of Wiscold, Inc. disclosed in Section (J)(8)
of Schedule 3(b)(xv) of the Seller Disclosure Schedule delivered
by Dean in connection with the Stock Purchase Agreement, provided
that Dean shall not be required to make any payment or provide
any other consideration to Wiscold, Inc.
16. For purposes of the Stock Purchase Agreement and the Asset
Transfer Agreement, the Closing Date shall be the close of
business on September 23, 1998.
Except as expressly provided in this Second Amendatory Agreement, the
Stock Purchase Agreement and the Asset Transfer Agreement shall remain unamended
and unwaived and shall remain in full force and effect in accordance with their
respective terms. As used in the Stock Purchase Agreement and the Asset Transfer
Agreement, references to "this Agreement" or the like shall refer to the same as
modified by this Second Amendatory Agreement.
4
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the Parties have executed this Amendatory Agreement
on the date first above written.
DEAN FOODS COMPANY
By: /s/ Eric A. Blanchard
-----------------------------
Title: Vice President
-----------------------------
AGRILINK FOODS, INC.
By: /s/ Earl L. Powers
-----------------------------
Title: Vice President
-----------------------------
5
<PAGE>
<PAGE>
===========================================================
ASSET TRANSFER AGREEMENT
BY AND BETWEEN
DEAN FOODS COMPANY
AND
AGRILINK FOODS, INC.
===========================================================
JULY 24, 1998
<PAGE>
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
1. Definitions.................................................................................1
2. Transfer of Aseptic Business................................................................9
(a) Basic Transaction.........................................................9
(b) Assumption of Certain Liabilities.........................................9
(c) The Closing...............................................................9
(d) Deliveries at the Closing.................................................9
(e) Closing Date Inventory Adjustment.........................................9
(i) Estimated Closing Date Inventory.........................9
(ii) Closing Date Inventory..................................10
(f) Aseptic Business Employees...............................................11
3. Representations and Warranties of the Transferor...........................................14
(a) Organization, Qualification and Power....................................14
(b) Authorization of Transaction.............................................14
(c) Noncontravention.........................................................14
(d) Financial Statements.....................................................15
(e) Events Subsequent to Most Recent Fiscal Year End.........................15
(f) Legal Compliance.........................................................16
(g) Regulatory Matters.......................................................17
(h) Tax Matters..............................................................17
(i) Real Property............................................................18
(j) Personal Property........................................................19
(k) Intellectual Property....................................................19
(l) Sufficiency of Assets....................................................20
(m) Inventory................................................................20
(n) Contracts................................................................21
(o) Powers of Attorney.......................................................22
(p) Insurance................................................................22
(q) Litigation...............................................................22
(r) Arbitration..............................................................23
(s) Product Warranty.........................................................23
(t) Employees................................................................23
(u) Top Customers............................................................23
(v) Employee Benefits........................................................23
(w) Guaranties...............................................................24
(x) Environmental and Public Safety Matters..................................24
(y) Certain Business Relationships With Affiliates of the Transferor.........25
(z) Undisclosed Liabilities..................................................25
</TABLE>
<PAGE>
<PAGE>
<TABLE>
<S> <C> <C>
(aa) Brokers' Fees............................................................25
(bb) Year 2000 Compliance.....................................................25
(cc) Disclosure...............................................................26
4. Representations and Warranties of the Transferee...........................................26
(a) Organization of the Transferee...........................................26
(b) Authorization of Transaction.............................................26
(c) Noncontravention.........................................................26
(d) Brokers' Fees............................................................27
5. Pre-Closing Covenants......................................................................27
(a) General..................................................................27
(b) Regulatory Matters and Approvals.........................................27
(c) Operation of Business....................................................27
(d) Full Access..............................................................27
(e) Notice of Developments...................................................28
(f) Exclusivity..............................................................28
(h) Release of Liens on Acquired Assets......................................28
6. Post-Closing Covenants.....................................................................28
(a) General..................................................................28
(b) Allocation of Purchase Price.............................................28
(c) Retention of and Access to Records.......................................29
(d) Non-Compete..............................................................29
(e) Post-Closing License of Transferor's Names...............................30
7. Closing....................................................................................30
8. Indemnification............................................................................31
(a) General..................................................................31
(b) Indemnification of Transferee Indemnitees................................31
(c) Indemnification of Transferor Indemnitees................................31
(d) Limitation on Indemnification Obligations................................32
(e) Cooperation..............................................................33
(f) Third Party Claims Subject to Indemnification............................33
(g) Exclusivity..............................................................34
9. Termination................................................................................35
10. Miscellaneous..............................................................................35
(a) Press Releases and Public Announcements..................................35
(b) No Third-Party Beneficiaries.............................................35
(c) Expenses.................................................................35
</TABLE>
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<TABLE>
<S> <C> <C>
(d) Entire Agreement...............................................................35
(e) Succession and Assignment......................................................36
(f) Counterparts...................................................................36
(g) Headings.......................................................................36
(h) Notices........................................................................36
(i) Governing Law..................................................................37
(j) Amendments and Waivers.........................................................37
(k) Severability...................................................................37
(l) Construction...................................................................37
(m) Incorporation of Exhibits and Disclosure Schedules.............................38
</TABLE>
Exhibit A - Closing Date Globe/Thank You License Agreement
Exhibit B - Transition Services Agreement
Exhibit C - Transferred Employee Severance Pay and Benefits
Transferor Disclosure Schedule - Exceptions to Representations and Warranties
-iii-
<PAGE>
<PAGE>
ASSET TRANSFER AGREEMENT
THIS ASSET TRANSFER AGREEMENT (this "Agreement") is entered into on
July 24, 1998, by and between Agrilink Foods, Inc., a New York corporation (the
"Transferor"), and Dean Foods Company, a Delaware corporation (the
"Transferee"). The Transferee and the Transferor are sometimes referred to
herein as a "Party" and collectively as the "Parties."
The Transferor and the Transferee are parties to that certain Stock
Purchase Agreement of even date herewith (the "Stock Purchase Agreement"). The
Stock Purchase Agreement contemplates a transaction in which the Transferee will
sell or cause to be sold to the Transferor and/or one or more subsidiaries of
the Transferor the frozen and canned vegetable products business of the
Transferee for consideration comprised of cash and the Aseptic Business (as
hereinafter defined) of the Transferor. The transfer of the Aseptic Business to
the Transferee upon the closing under the Stock Purchase Agreement will be
effected pursuant to and in accordance with the terms of this Agreement. Under
certain circumstances, however, the Transferee will receive solely cash at the
closing (the "SPA Closing") of the transactions contemplated by the Stock
Purchase Agreement (the "All Cash Alternative"). If the All Cash Alternative
becomes applicable, this Agreement shall terminate as provided in Section 9. In
connection with the transfer of the Aseptic Business to the Transferee, the
Transferor will grant to the Transferee a royalty-free perpetual license of
certain of the trademarks used in the Aseptic Business for certain uses and the
Transferor will enter into a transition services agreement for the benefit of
the Transferee.
Now, therefore, in consideration of the premises and the mutual
promises made in this Agreement and in the Stock Purchase Agreement, and in
consideration of the representations, warranties and covenants contained in this
Agreement and in the Stock Purchase Agreement, the Parties agree as follows.
1. Definitions.
"Acquired Assets" means all right, title and interest in and to all of
the assets used in or constituting the Aseptic Business, including all of its
(a) real property, leaseholds and subleaseholds therein, improvements, fixtures
and fittings thereon, and easements, rights-of-way and other appurtenants
thereto (such as appurtenant rights in and to public streets), (b) tangible
personal property (such as machinery, equipment, Inventory, manufactured and
purchased parts, goods in process and finished goods, furniture, automobiles,
trucks, tractors, trailers and tools), (c) Intellectual Property, goodwill
associated therewith, licenses and sublicenses granted and obtained with respect
thereto, and rights thereunder, remedies against infringements thereof, and
rights to protection of interests therein under the laws of all jurisdictions,
(d) leases, subleases and rights thereunder, (e) agreements, contracts,
indentures, mortgages, instruments, Security Interests, guaranties, other
similar arrangements and rights thereunder, (f) claims, deposits, prepayments,
refunds, causes of action, choses in action, rights of recovery, rights of set
off and rights of recoupment, (g) franchises, approvals, permits, licenses,
orders, registrations, certificates, variances and similar rights obtained from
Governmental Entities and (h) books, records, ledgers, files,
<PAGE>
<PAGE>
documents, correspondence, lists, plats, architectural plans, drawings and
specifications, creative materials, advertising and promotional materials,
studies, reports and other printed or written materials; provided, however, that
the Acquired Assets shall not include (i) the corporate charter, qualifications
to conduct business as a foreign corporation, arrangements with registered
agents relating to foreign qualifications, taxpayer and other identification
numbers, seals, minutes books, stock transfer books, blank stock certificates
and other documents relating to the organization, maintenance and existence of
the Transferor as a corporation, (ii) any of the rights of the Transferor under
this Agreement, (iii) any cash and cash equivalents of the Aseptic Business,
(iv) any accounts, notes and other receivables of the Aseptic Business, (v) the
Globe/Thank You Trademarks and (vi) the Logistics Services Agreement dated as of
April 1, 1998 by and between GATX Logistics, Inc. and the Transferor.
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act.
"Affiliated Group" means any affiliated group within the meaning of
Code Section 1504(a) or any similar group defined under a similar provision of
state, local or foreign law.
"All Cash Alternative" has the meaning set forth in the preface.
"Aseptic Business" means the aseptic business of the Transferor,
including without limitation all operations of the Transferor conducted out of
its Benton Harbor, Michigan facility and all operations of the Transferor
related to or supporting the sales shown in the Financial Statements.
"Aseptic Business Packaging/Labels" means all of the packaging and
label inventory (including label inventory affixed to finished goods) of the
Aseptic Business that exists (or which has been ordered by the Aseptic Business
but not yet delivered) at the Closing Date which bears the name of Transferor or
of any division thereof.
"Aseptic Business-Related Intellectual Property" has the meaning set
forth in Section 3(k)(iii).
"Assumed Liabilities" means all obligations of the Aseptic Business
under the agreements, contracts, leases, licenses and other arrangements
included in the definition of Acquired Assets either (i) to furnish goods,
services and other non-cash benefits to another party after the Closing or (ii)
to pay for goods, services and other non-cash benefits that another party will
furnish to the Aseptic Business after the Closing, and the liability of the
Aseptic Business with respect to the litigation described in the section of the
Transferor Disclosure Schedule corresponding to Section 3(q); provided, however,
that the Assumed Liabilities shall not include (i) any liability of the
Transferor for unpaid Taxes (with respect to the Aseptic Business or otherwise)
for periods prior to the Closing, (ii) any liability of the Transferor for
income, transfer, sales, use and other taxes arising in connection with the
consummation of the transactions contemplated hereby (including any Income Taxes
arising because the Transferor is transferring the Acquired Assets), (iii) any
liability
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<PAGE>
of the Transferor for the unpaid Taxes of any Person other than the Transferor,
as a transferee or successor, by contract or otherwise, (iv) any obligation of
the Transferor to indemnify any Person by reason of the fact that such Person
was a director, officer, employee or agent of the Transferor or was serving at
the request of the Transferor as a partner, trustee, director, officer, employee
or agent of another entity (whether such indemnification is for judgments,
damages, penalties, fines, costs, amounts paid in settlement, losses, expenses
or otherwise and whether such indemnification is pursuant to any statute,
charter, bylaw, agreement or otherwise), (v) any liability of the Transferor for
costs and expenses incurred in connection with this Agreement and the Stock
Purchase Agreement and the transactions contemplated hereby and thereby, (vi)
any accounts payable or accrued expenses of the Transferor, (vii) any liability
or obligation of the Transferor under this Agreement and (viii) any liability or
obligation with respect to any indebtedness other than indebtedness under any
capital lease identified in the section of the Transferor Disclosure Schedule
corresponding to Section 3(n)(xiv).
"CERCLA" has the meaning set forth in Section 3(x)(v).
"Closing" has the meaning set forth in Section 2(c).
"Closing Date" has the meaning set forth in Section 2(c).
"Closing Date Globe/Thank You License Agreement" means a license
agreement in form and substance as set forth in Exhibit A attached hereto
between the Transferor as licensor and the Transferee or a designee of the
Transferee as licensee.
"Closing Date Inventory" means all Inventory relating to the Aseptic
Business as of the close of business on the day immediately preceding the
Closing Date, as finally determined in accordance with Section 2(e)(ii)(A).
Items included in Closing Date Inventory shall be valued on the basis for their
valuation set forth in the notes to the Most Recent Balance Sheet. The
quantities and types of inventory included in Closing Date Inventory shall be
the book inventory of the Transferor with respect to the Aseptic Business as of
the close of business on the day immediately preceding the Closing Date
(reflecting any subsequent postings as of the close of business on the day
immediately preceding the Closing Date made in accordance with the past custom
and practices of the Transferor), and no physical inventory shall be conducted.
"Closing Date Inventory Statement" has the meaning set forth in
Section 2(e)(ii)(A).
"Closing Date Inventory Target" means $9,600,000.
"COBRA" means the requirement of Part 6 of Subtitle B of Title I of
ERISA and Code Section 4980B.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
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"Controlled Group" has the meaning set forth in Section 3(v).
"Damages" means all liabilities, demands, claims, actions or causes of
action, regulatory, legislative or judicial proceedings or investigations,
assessments, levies, losses, fines, penalties, damages, costs and expenses,
including, without limitation, reasonable fees and expenses of attorneys,
accountants and other professionals sustained or incurred in connection with the
defense or investigation of any claim.
"Delaware General Corporation Law" means the General Corporation Law of
the State of Delaware.
"Employee Benefit Plan" means any (a) nonqualified deferred
compensation or retirement plan or arrangement, (b) qualified defined
contribution retirement plan or arrangement which is an Employee Pension Benefit
Plan, (c) qualified defined benefit retirement plan or arrangement which is an
Employee Pension Benefit Plan (including any Multiemployer Plan) or (d) Employee
Welfare Benefit Plan or fringe benefit or other retirement, bonus or incentive
plan or program, including without limitation any stock option or other
equity-based plan or severance plan or arrangement.
"Employee Pension Benefit Plan" has the meaning set forth in ERISA
Section 3(2).
"Employee Welfare Benefit Plan" has the meaning set forth in ERISA
Section 3(1).
"Environmental Requirements" means all federal, state, local and
foreign statutes, regulations, ordinances and similar provisions having the
force or effect of law, all judicial and administrative orders and
determinations, and all common law, concerning pollution or protection of the
environment and public health and safety, including without limitation all those
relating to the presence, use, production, generation, handling, transportation,
treatment, storage, disposal, distribution, labeling, testing, processing,
discharge, release, threatened release, control or cleanup of any hazardous
materials, substances or wastes, chemical substances or mixtures, pesticides,
pollutants, contaminants, toxic chemicals, petroleum products or byproducts,
asbestos, polychlorinated biphenyls, noise or radiation.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Estimated Closing Date Inventory" has the meaning set forth in Section
2(e)(i).
"Excluded Liabilities" means all liabilities and obligations of the
Transferor (including without limitation all liabilities relating to the Aseptic
Business if and to the extent such liabilities arise from or relate to any fact,
circumstances or condition existing on or prior to the Closing Date) other than
the Assumed Liabilities.
"FDC Act" means the Federal Food, Drug and Cosmetic Act, as amended
from time to time.
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"Fiduciary" has the meaning set forth in ERISA Section 3(21).
"Financial Statements" has the meaning set forth in Section 3(d).
"GAAP" means United States generally accepted accounting principles as
in effect from time to time.
"Globe/Thank You Trademarks" means the trademarks set forth on Schedule
A to Exhibit A attached hereto.
"Governmental Entities" has the meaning set forth in Section 3(f).
"Hart-Scott-Rodino Act" means the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended from time to time.
"Income Tax" means any federal, state, local or foreign income tax,
including tax in lieu thereof (such as a tax on capital), and inducting any
interest, penalty, or addition thereto, whether disputed or not.
"Income Tax Return" means any return, declaration, report, claim for
refund, or information return or statement relating to Income Taxes, including
any schedule or attachment thereto, and including any amendment thereof.
"Indemnified Party" means a party that is entitled to indemnification
from another party pursuant to Section 8.
"Indemnifying Party" means a party that is required to provide
indemnification to another party pursuant to Section 8.
"Independent Firm" has the meaning set forth in Section 2(e)(ii)(A).
"Intellectual Property" means (a) all inventions (whether patentable or
unpatentable and whether or not reduced to practice), all improvements thereto,
and all patents, patent applications, and patent disclosures, together with all
reissuances, continuations, continuations-in-part, revisions, extensions, and
reexaminations thereof, (b) all trademarks, service marks, trade dress, logos,
trade names, and corporate names, together with all translations, adaptations,
derivations, and combinations thereof and including all goodwill associated
therewith, and all applications, registrations, and renewals in connection
therewith, (c) all copyrightable works, all copyrights, and all applications,
registrations, and renewals in connection therewith, (d) all applications,
registrations, and renewals in connection therewith, (e) all trade secrets and
confidential business information (including ideas, research and development,
know-how, formulas, compositions, manufacturing and production processes and
techniques, technical data, designs, drawings, specifications, customer and
supplier lists, pricing and cost information, and business and marketing
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plans and proposals), (f) all computer software (including data and related
documentation), (g) all other proprietary rights, and (h) all copies and
tangible embodiments thereof (in whatever form or medium).
"Inventory" means raw materials, packaging supplies, work in process,
finished goods and spare parts.
"Knowledge of the Transferor" means (i) the actual knowledge, without
special investigation, of Dennis Mullen, Earl Powers or William Rice, the Chief
Executive Officer, the Vice President and Chief Financial Officer and the Senior
Vice President, Strategic Development, respectively, of the Transferor, and (ii)
the actual knowledge, without special investigation, of Bernhard Frega, David
Pico, Ronald Fithen or Michael Thompson, the President, the Vice President,
Finance, the Vice President, Manufacturing, and the Vice President, Research,
respectively, of the Transferor's Curtice Burns Foods division.
"Leased Premises" has the meaning set forth in Section 3(i)(ii).
"Most Recent Balance Sheet" means the statement of inventory and
property, plant and equipment with respect to the fiscal year ended June 27,
1998 contained in the Financial Statements.
"Most Recent Fiscal Year End" has the meaning set forth in
Section 3(d).
"Multiemployer Plan" has the meaning set forth in ERISA Section 3(37).
"Non-Compete Businesses" has the meaning set forth in Section 6(d).
"Non-Compete Period" has the meaning set forth in Section 6(d).
"Objection Notice" has the meaning set forth in Section 2(e)(ii)(A).
"Owned Premises" has the meaning set forth in Section 3(i)(i).
"Parties" has the meaning set forth in the preface.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization or a Governmental Entity.
"Records Retention Date" has the meaning set forth in Section 6(c).
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"Research and Development Facility" means the building known as "Benton
Harbor South" used in part by the Aseptic Business for research and development,
which is part of the Owned Premises.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"Security Interest" means any mortgage, pledge, lien, encumbrance,
charge or other security interest, other than (a) mechanic's, materialmen's and
similar liens being contested in good faith if the related payment obligation is
then due and payable, (b) liens for taxes not yet due and payable or for taxes
that the taxpayer is contesting in good faith, (c) purchase money liens and
liens securing rental payments under capital lease arrangements, (d) other liens
arising in the ordinary course of business and not incurred in connection with
the borrowing of money and (e) solely with respect to owned real property, other
encumbrances which, in the aggregate, do not materially adversely affect the
value of such real property or the owner's ability to use such real property for
its intended purpose.
"SPA Closing" has the meaning set forth in the preface.
"Subsidiary" means, with respect to any Person, any corporation,
limited liability company, partnership, association or other business entity of
which (i) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited
liability company, partnership, association or other business entity, a majority
of the partnership or other similar ownership interest thereof is at the time
owned or controlled, directly or indirectly, by that Person or one or more
Subsidiaries of that Person or a combination thereof. For purposes hereof, a
Person or Persons shall be deemed to have a majority ownership interest in a
limited liability company, partnership, association or other business entity if
such Person or Persons shall be allocated a majority of limited liability
company, partnership, association or other business entity gains or losses or
shall be or control any managing director or general partner of such limited
liability company, partnership, association or other business entity.
"SWDA" has the meaning set forth in Section 3(x)(v).
"Taxes" means all taxes, charges, fees, premiums, levies, penalties or
other assessments imposed by any United States federal, state or local or
foreign taxing authority, including, but not limited to, Income Taxes, franchise
or capital stock taxes, sales taxes, use taxes, gross receipts taxes, real or
personal property taxes, excise taxes, transfer taxes, payroll, withholding,
social security or other taxes (including taxes or premiums for unemployment
insurance or similar governmental impositions), including any interest,
penalties or additions attributable thereto.
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"Third Party Claims" shall mean any claims for Damages which are
asserted or threatened by a Person, other than a Party or a successor or assign
of a Party, against any Indemnified Party or to which an Indemnified Party is
subject from such a Person.
"Threshold Amount" has the meaning set forth in Section 8(d)(ii).
"Transition Services Agreement" means the transition services agreement
in the form attached hereto as Exhibit B.
"Transferee" has the meaning set forth in the preface.
"Transferee Indemnitee" has the meaning set forth in Section 8(b).
"Transferee Savings Plan" has the meaning set forth in
Section 2(f)(iii).
"Transferred Employees" has the meaning set forth in Section 2(f).
"Transferor" has the meaning set forth in the preface.
"Transferor Disclosure Schedule" means the schedule entitled
"Transferor Disclosure Schedule" heretofore delivered by the Transferor, which
schedule is arranged in sections corresponding to the lettered and numbered
subsections contained in Section 3.
"Transferor Indemnitee" has the meaning set forth in Section 8(c).
"Transferor's Retirement Plans" has the meaning set forth in Section
2(f)(iv).
"Transferor's Savings Plans" has the meaning set forth in Section
2(f)(iv).
2. Transfer of Aseptic Business.
(a) Basic Transaction. On and subject to the terms and
conditions of this Agreement, the Transferor shall transfer, convey and deliver
to the Transferee all of the Acquired Assets at the Closing. In connection with
such transaction, the Transferor will grant to the Transferee a royalty-free
perpetual license of certain of the trademarks used in the Aseptic Business for
certain uses and enter into a transition services agreement for the benefit of
the Transferee. It is expressly agreed by the Parties that the Transferee may
choose to have the Aseptic Business conveyed to one or more Subsidiaries of the
Transferee rather than to the Transferee, provided that each such Subsidiary and
the particular assets to which it is to take title are identified to the
Transferor at least 15 days prior to the Closing Date. In such event, except to
the extent the context otherwise requires, each of the references to the
Transferee herein (including without limitation in the representations and
warranties of the Transferee in Section 4) shall be a reference not only to the
Transferee but also to each such Subsidiary.
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(b) Assumption of Certain Liabilities. On and subject to the
terms and conditions of this Agreement, the Transferee agrees to assume and
become responsible for all of the Assumed Liabilities at the Closing. The
Transferee will not assume or have any responsibility with respect to any
Excluded Liabilities.
(c) The Closing. Subject to the terms and conditions of this
Agreement, the closing of the transactions contemplated by this Agreement (the
"Closing") shall take place simultaneously with the SPA Closing (the date and
time of the Closing, the "Closing Date").
(d) Deliveries at the Closing. At the Closing, (i) the
Transferor will execute, acknowledge (if appropriate) and deliver to the
Transferee such instruments of transfer, conveyance and assignment (including
real property and Intellectual Property transfer documents) as the Transferee
may reasonably request, which instruments shall be in a form reasonably
satisfactory to the Transferee, (ii) the Transferor and the Transferee will
enter into the Closing Date Globe/Thank You License Agreement, (iii) the
Transferee and the Transferor will enter into the Transition Services Agreement
and (iv) the Transferee will execute, acknowledge (if appropriate) and deliver
to the Transferor an instrument of assumption in a form reasonably satisfactory
to the Transferor.
(e) Closing Date Inventory Adjustment.
(i) Estimated Closing Date Inventory. At least 3
business days in advance of the Closing, the Transferor shall
prepare in good faith and deliver to the Transferee an
estimate of Closing Date Inventory ("Estimated Closing Date
Inventory"). If Estimated Closing Date Inventory exceeds
Closing Date Inventory Target, the Transferee shall pay to the
Transferor at the Closing the amount of such excess, which
shall be payable in cash by wire transfer or delivery of other
immediately available funds (or at the election of the
Transferee by an offset on a dollar for dollar basis against
the cash consideration payable by the Transferor at the
closing under the Stock Purchase Agreement). If Estimated
Closing Date Inventory is less than Closing Date Inventory
Target, the Transferor shall pay to the Transferee at the
Closing the amount of such deficit, which shall be payable in
cash by wire transfer or delivery of other immediately
available funds.
(ii) Closing Date Inventory.
(A) Determination of Closing Date Inventory.
Within 45 days of the Closing Date, the Transferee
and its independent auditors shall deliver to the
Transferor a statement of Closing Date Inventory (the
"Closing Date Inventory Statement"). The Transferee
and its auditors will (i) make available to the
Transferor and its agents, attorneys and accountants
upon reasonable advance notice all records and work
papers necessary to understand the Closing Date
Inventory Statement and to calculate Closing
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Date Inventory and (ii) allow the Transferor and its
agents, attorneys and accountants upon reasonable
advance notice to interview any Transferee personnel
or independent auditor personnel significantly
involved in the preparation of the Closing Date
Inventory Statement. If the Transferor disagrees with
the computation of Closing Date Inventory contained
in the Closing Date Inventory Statement, the
Transferor may, within 30 days after receipt of the
Closing Date Inventory Statement, deliver a notice
(the "Objection Notice") to the Transferee setting
forth the objections of the Transferor and, to the
extent reasonably possible, Closing Date Inventory as
determined by the Transferor. The Transferee and the
Transferor will use reasonable efforts to resolve any
disagreements as to the computation of Closing Date
Inventory, but if they do not obtain a final
resolution within 15 days after the Transferee has
received the Objection Notice, the Transferee and the
Transferor will jointly retain Arthur Andersen LLP,
or if such firm is unwilling to serve, another
independent accounting firm of recognized national
standing that is not a public accountant of the
Transferee, the Transferor or any of their respective
Affiliates (an "Independent Firm") to resolve any
remaining disagreements. If the Transferee and the
Transferor are unable to agree on the choice of an
Independent Firm, the choice will be selected by lot
from those top five accounting firms that are
Independent Firms or, if no top five accounting firm
is an Independent Firm or is willing to serve,
selected by lot from those Independent Firms that are
willing to serve. The Transferee and the Transferor
will direct the chosen Independent Firm to render a
determination within 30 days of its retention and the
Transferee and the Transferor and their respective
agents will cooperate with the chosen Independent
Firm during its engagement. The chosen Independent
Firm will consider only those issues related to the
determination of Closing Date Inventory set forth in
the Objection Notice which the Transferee and the
Transferor have been unable to resolve. The
determination of the chosen Independent Firm will be
based on and consistent with the definition of
Closing Date Inventory included herein. The
determination of the chosen Independent Firm will be
conclusive and binding upon the Transferee and the
Transferor. In any proceeding described above in this
paragraph, all of the costs and expenses of the
Transferee (including reasonable attorneys' fees and
expenses) shall be borne by the Transferee, all of
the costs and expenses of the Transferor (including
reasonable attorneys' fees and expenses) shall be
borne by the Transferor and all costs and expenses of
the chosen Independent Firm shall be borne by the
Transferee in the event that the Closing Date
Inventory reflected in the Closing Date Inventory
Statement, as adjusted to reflect any resolution
between the Parties of any objections of the
Transferor to the Closing Date Inventory Statement,
is lower than Closing Date Inventory; otherwise the
Transferor shall bear all costs and expenses of the
chosen Independent Firm.
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(B) Payment. If Closing Date Inventory
exceeds Estimated Closing Date Inventory, the
Transferee shall pay to the Transferor within 5
business days of the final determination of Closing
Date Inventory the amount of such excess, which shall
be payable in cash by wire transfer or delivery of
other immediately available funds. If Closing Date
Inventory is less than Estimated Closing Date
Inventory, the Transferor shall pay to the Transferee
within 5 business days of the final determination of
Closing Date Inventory the amount of such deficit,
which shall be payable in cash by wire transfer or
delivery of other immediately available funds. No
interest shall be paid with respect to any adjustment
amount due and timely paid pursuant to this
subsection.
(f) Aseptic Business Employees.
(i) Subject to the succeeding provisions of this
Section 2(f), the Transferee will immediately following the
Closing Date (or, in the case of an employee within clause
(ii) of this sentence, immediately following the date of his
or her commencement of or return to active employment) offer
employment to (i) each employee with respect to the Aseptic
Business on the active payroll of the Transferor on the
Closing Date and (ii) each employee of the Transferor with
respect to the Aseptic Business not on its active payroll on
the Closing Date on account of an approved leave of absence,
disability leave or layoff if such employee returns to active
employment immediately upon the conclusion of any such leave
or layoff, or within the period required by law or any
applicable collective bargaining agreement (all such employees
being referred to herein as "Transferred Employees"). Each
such offer of employment shall be at the same initial salary
or wage level and bonus compensation applicable to such
Transferred Employee immediately prior to the Closing Date,
and with employee benefits and fringe benefits not materially
less than such benefits provided by the Transferor immediately
prior to the Closing Date. Such employment and the benefits to
be provided to the Transferred Employees shall recognize the
date of hire and time of service with the Transferor and its
Affiliates (and their respective predecessors) for all
purposes except as otherwise expressly provided in this
Section 2(f). The Transferor shall use reasonable best efforts
to cause the Transferred Employees to enter into employment
with the Transferee immediately after the Closing, and the
Transferee hereby authorizes the Transferor to communicate the
offer of employment and the terms thereof described in this
Section 2(f) on behalf of the Transferee to the Transferred
Employees. Nothing contained in this Section 2(f) shall confer
upon any Transferred Employee the right to continued
employment by the Transferee for any period of time after
immediately after the Closing Date which is not otherwise
required by law or the terms of any applicable collective
bargaining agreement.
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(ii) Effective as of the Closing Date, the
Transferred Employees shall cease to be covered under the
employee benefit plans of the Transferor, if any, and shall
participate under the employee benefit plans, programs and
policies maintained or established by the Transferee. Each
employee benefit plan, program or policy maintained or
established by the Transferee with respect to any Transferred
Employees shall credit the Transferred Employees covered
thereby for all purposes (other than benefit levels, and
unless such crediting would result in a duplication of
benefits) with the service that was recognized immediately
prior to the Closing Date under the comparable plan of the
Transferor maintained immediately prior to the Closing and,
with respect to each plan that is an Employee Welfare Benefit
Plan, the Transferred Employees shall be covered without
regard to any waiting period or pre-existing condition
restriction and shall receive credit for all deductibles,
co-payments and other out-of-pocket expenses incurred under
the Transferor's plans during the portion of the applicable
plan year that precedes the Closing Date. The Transferee shall
be bound by and shall honor the terms of each collective
bargaining agreement which applies to the Transferred
Employees. The Transferee shall, at its sole expense, provide
each Transferred Employee with any severance pay and benefits
applicable to such Transferred Employee pursuant to Exhibit C.
(iii) The section of the Transferor Disclosure
Schedule corresponding to this Section 2(f)(iii) lists each
Employee Benefit Plan that the Transferor maintains under
which any employee of the Transferor with respect to the
Aseptic Business is provided coverage (the "Transferor
Plans"). Transferor has made available to Transferee true and
correct copies of all such Employee Benefit Plans. Each of the
Transferor's Hourly Employees 401(K) Plan and Retirement
Savings and Incentive Plan (collectively, the "Transferor's
Savings Plans") has previously received a determination letter
from the Internal Revenue Service that the plan is qualified
under Section 401(a) of the Code and nothing has occurred
since the date of such determination that would materially and
adversely affect the qualification of such plan. The
Transferor's Savings Plans have been maintained and
administered in compliance in all material respects with ERISA
and the Code.
(iv) Effective as of the Closing Date, the Transferee
shall establish for the Transferred Employees a defined
contribution plan, or make the Transferred Employees eligible
for an existing defined contribution plan of the Transferee
that is qualified under Section 401(a) of the Code (the
"Transferee Savings Plan"). Upon the Transferor's receipt of
evidence satisfactory to it relative to the establishment or
the availability of the Transferee Savings Plan and that such
Plan is qualified under Section 401(a) of the Code, the
Transferor shall cause the trustee of the Transferor's Savings
Plans to transfer the account balances of the Transferred
Employees in the Transferor's Savings Plans to the
Transferee's Savings Plan, including without limitation, any
outstanding participant loans.
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(v) Effective as of the Closing Date, the Transferred
Employees shall cease active participation in the Transferor's
Master Salaried Retirement Plan and Master Hourly Pension Plan
(the "Transferor's Retirement Plans"). The Transferor shall
retain all assets of the Transferor's Retirement Plans and the
liabilities for benefits of the Transferred Employees accrued
through the Closing Date under the Transferor's Retirement
Plans. Each Transferred Employee shall be fully vested as of
the Closing Date and will be entitled to a distribution of his
or her benefits accrued as of the Closing Date under the
Transferor's Retirement Plans in accordance with the terms
thereof.
(vi) The Transferor agrees that it shall be solely
responsible for the provision of health care continuation
coverage required pursuant to the terms of COBRA for those
former employees of the Aseptic Business whose entitlement to
such continuation coverage occurred before the Closing Date.
The Transferee shall, to the extent required, offer
"continuation coverage" under its group health plans to all
Transferred Employees and comply with all notice and other
requirements under COBRA or similar state statue so that the
Transferor shall have no liability or obligation under COBRA
or a similar state statue to the Transferred Employees as a
result of the transactions contemplated by this Agreement.
(vii) The Transferee shall, for a period of 90 days
after the Closing Date, not cause any of the Transferred
Employees to suffer "employment loss" for purposes of the
Worker Adjustment and Retraining Notification Act and related
regulations, if such employment loss could create any
liability for the Transferor.
3. Representations and Warranties of the Transferor. The Transferor
represents and warrants to the Transferee that, subject in the case of the
representations and warranties in each particular section below to the
exceptions set forth in the corresponding section of the Transferor Disclosure
Schedule:
(a) Organization, Qualification and Power. The Transferor is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization.
(b) Authorization of Transaction. The Transferor has full
corporate power and corporate authority to execute and deliver this Agreement
and all other agreements contemplated hereby to which the Transferor is or is to
be a party and to perform its obligations hereunder and thereunder. The board of
directors of the Transferor has duly approved this Agreement and all other
agreements contemplated hereby to which the Transferor is or is to be a party
and has duly authorized the Transferor's execution and delivery of this
Agreement and all such other agreements and the consummation of the transactions
on the part of the Transferor contemplated hereby and thereby. No approval of
this Agreement or any such other agreement by the stockholders of the Transferor
is required. This Agreement and all such other agreements constitute the valid
and legally binding obligations of the Transferor, enforceable in accordance
with their respective terms,
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except as enforceability may be limited by bankruptcy or other laws affecting
creditor's rights generally and limitations on the availability of equitable
remedies.
(c) Noncontravention. The consummation of the transactions
contemplated by this Agreement does not (i) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge or other
restriction of any government, governmental agency or court to which the
Transferor is subject (except that no representation or warranty is made with
respect to any antitrust statute, regulation, rule or other restriction) or any
provision of the charter or bylaws (or similar governing documents) of the
Transferor or (ii) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify or cancel, or require any notice under, any
material agreement, contract, lease, license, instrument or other arrangement to
which the Transferor is a party or by which it is bound or to which any of its
assets is subject (or result in the imposition of any Security Interest upon any
of its assets). The Transferor does not need to give any notice to, make any
filing with or obtain any authorization, consent or approval of, any government
or governmental agency in order for the Parties to consummate the transactions
or perform the obligations contemplated by this Agreement, other than in
connection with the provisions of the Hart-Scott-Rodino Act, and other than any
notice, filing, authorization, consent or approval that has been given, made or
obtained.
(d) Financial Statements. The Transferor has previously
delivered the following financial information for the Aseptic Business to the
Transferee: an unaudited statement of inventory and property, plant and
equipment as of June 27, 1998 (the "Most Recent Fiscal Year End") and unaudited
income statements for the fiscal years ended June 27, 1998 and June 28, 1997
(collectively, the "Financial Statements"). The Financial Statements have been
derived from the internal books and records of the Transferor, which have been
maintained in a manner consistent with the accounting practices of the
Transferor, and the financial information reflected in the Financial Statements
is included in the Transferor's consolidated financial statements which are
prepared in accordance with GAAP consistently applied. The Transferor makes no
other representation or warranty with respect to the Financial Statements.
(e) Events Subsequent to Most Recent Fiscal Year End. Since
the Most Recent Fiscal Year End, there has not been any material adverse change
in the business, operations or financial condition of the Aseptic Business.
Without limiting the generality of the foregoing, since that date:
(i) the Transferor has not sold, leased, transferred
or assigned any material assets, tangible or intangible, of
the Aseptic Business, except for sales of inventory in the
ordinary course of its business;
(ii) no party (including the Transferor) has
accelerated, terminated, made material modifications to or
canceled any material agreement, contract, lease or license to
which the Transferor is a party or by which it is bound with
respect to the Aseptic Business;
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(iii) the Transferor has not made any capital
expenditures materially in excess of the budgeted amount for
capital expenditures previously provided to the Transferee by
the Transferor with respect to the Aseptic Business;
(iv) the Transferor has not mortgaged, pledged or
subjected to any Security Interest any of the assets or
properties relating to the Aseptic Business;
(v) the Transferor has not waived or released any of
its material rights with respect to the Aseptic Business;
(vi) the Transferor has not granted any license or
sublicense of any material rights under or with respect to any
Intellectual Property related to the Aseptic Business;
(vii) the Transferor has not experienced any material
damage, destruction or loss (whether or not covered by
insurance) to property of the Aseptic Business;
(viii) the Transferor has not made any loan to, or
entered into any other transaction with, any of its officers
with respect to the Aseptic Business other than the advance or
reimbursement of reasonable business expenses incurred or to
be incurred in the ordinary course of business;
(ix) the Transferor has not entered into any
employment contract with any of its officers or any collective
bargaining agreement with respect to the Aseptic Business,
written or oral, or modified the terms of any existing such
contract or agreement;
(x) the Transferor has not granted any increase in
the compensation payable or to become payable to any of its
officers with respect to the Aseptic Business, except for
annual increases in the ordinary course of business consistent
with past practice;
(xi) the Transferor has not adopted, amended,
modified or terminated any bonus, profit-sharing, incentive,
severance or other plan, contract or commitment for the
benefit of any of its officers with respect to the Aseptic
Business (or taken any such action with respect to any other
Employee Benefit Plan);
(xii) the Transferor has not made any other material
change in employment terms for any of its officers with
respect to the Aseptic Business outside the ordinary course of
its business;
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(xiii) the Transferor has not experienced any
material adverse change in the business, operations or
financial condition of the Aseptic Business; and
(xiv) the Transferor has not committed to any of the
foregoing.
(f) Legal Compliance. The Aseptic Business has complied in all
material respects with all applicable laws (including rules, regulations, codes,
plans, injunctions, judgments, orders, decrees, rulings and charges thereunder)
of federal, state, local and foreign governments (and all departments, agencies
and political subdivisions thereof) (collectively, "Governmental Entities"). No
material investigation, review, inquiry or proceeding by any Governmental Entity
with respect to the Aseptic Business is pending or, to the Knowledge of the
Transferor, threatened. The Transferor currently is not subject to any
agreement, contract or decree with any Governmental Entity with respect to the
Aseptic Business arising out of any current or previously existing violations or
alleged violations.
(g) Regulatory Matters. The Aseptic Business possesses all
regulatory permits, licenses and other governmental authorizations and approvals
which it is required by applicable law to obtain, all of which have been duly
obtained and are in full force and effect; the Aseptic Business is in compliance
in all material respects with the respective terms and conditions thereof, and
there are no material proceedings pending or, to the Knowledge of the
Transferor, threatened seeking to revoke, cancel or suspend, or to adversely
modify, any thereof. The consummation of the transactions contemplated hereby
will not result in the revocation, cancellation, suspension or adverse
modification of any thereof.
(h) Tax Matters.
(i) The section of the Transferor Disclosure Schedule
corresponding to this Section 3(h) indicates the most recent
periods for which audits of the Transferor's Income Tax
Returns have closed.
(ii) Transferor with respect to the Aseptic Business
is not a party to any tax allocation or sharing agreement
which allocates tax liability to the Aseptic Business
independently of the allocation elected under Treasury
Regulation Section 1.1552-1. With respect to taxable periods
beginning on or after January 1, 1995, the Transferor (A) has
not been a member of an Affiliated Group filing a consolidated
U.S. federal Income Tax Return (other than a group the common
parent of which was Pro-Fac Cooperative, Inc.) and (B) has no
liability for the taxes of any Person (other than any of the
Transferor and its Subsidiaries) under Reg. Section 1.1502-6
(or any similar provision of state, local or foreign law), as
a transferee or successor, by contract, or otherwise.
(iii) The Transferor with respect to the Aseptic
Business has timely filed all tax and information returns
required to be filed and paid (or the Transferor has paid
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on behalf of the Aseptic Business), or has accrued on its
books and set up an adequate reserve for the payment of, all
Taxes reflected on such returns or required to be paid in
respect of the periods covered by such returns and has accrued
on its books and set up an adequate reserve for the payment of
all Taxes anticipated to be payable in respect of periods
through the end of the calendar month preceding the date
hereof. The Transferor with respect to the Aseptic Business is
not delinquent in the payment of any Taxes, assessment or
governmental charge. No deficiencies for any Taxes have been
proposed, asserted or assessed against the Transferor with
respect to the Aseptic Business have been proposed, asserted
or assessed that have not been resolved or settled, and no
requests for waivers of the time to assess any Taxes are
pending or have been agreed to. The Transferor with respect to
the Aseptic Business is not currently subject to audit or
examination of any of its tax returns by the Internal Revenue
Service or any state, municipal or other taxing authority. The
Transferor with respect to the Aseptic Business is not a party
to any action or proceeding by any Governmental Entity for the
assessment or the collection of Taxes. There are no Security
Interests on any of the assets of the Aseptic Business that
arose in connection with any failure (or alleged failure) to
pay any Tax.
(iv) The Transferor with respect to the Aseptic
Business has withheld amounts from its employees, independent
contractors, creditors, stockholders or other third parties in
compliance with the tax withholding provisions of applicable
federal, state and local laws, has filed all federal, state
and local returns and reports for all periods for which such
returns or reports would be due with respect to income
tax withholding, social security, unemployment taxes, income
and other Taxes and all payments or deposits with respect to
such taxes have been timely made and has notified all
employees and stockholders of their obligations to file all
forms, statements and reports with it in accordance with
applicable federal, state and local tax laws and has taken
reasonable steps to insure that such employees and
stockholders have filed all such forms, statements and reports
with it.
(i) Real Property.
(i) The section of the Transferor Disclosure Schedule
corresponding to this Section 3(i)(i) lists all real property
owned by the Transferor and used in the operation of the
Aseptic Business (the "Owned Premises"). With respect to each
such parcel of owned real property:
(A) the Transferor has good and marketable
title to the parcel of real property, free and clear
of any Security Interest, easement, covenant or other
restriction, except for easements and restrictions
existing generally with respect to properties of a
similar character which do not affect materially and
adversely the current use, occupancy or value, or the
marketability of title, of the property subject
thereto;
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(B) there are no pending or, to the
Knowledge of the Transferor, threatened condemnation
proceedings, lawsuits or administrative actions
relating to the property or other matters affecting
materially and adversely the current use, occupancy
or value thereof;
(C) there are no outstanding options or
rights of first refusal to purchase the parcel of
real property, or any portion thereof or interest
therein; and
(D) there are no parties in possession of
the parcel of real property, other than tenants under
any leases disclosed in the section of the Transferor
Disclosure Schedule corresponding to Section 3(i)(ii)
who are in possession of space to which they are
entitled.
(ii) The section of the Transferor Disclosure
Schedule corresponding to this Section 3(i)(ii) lists all real
property leased or subleased to or by the Transferor in the
operation of the Aseptic Business (the "Leased Premises").
(iii) None of the businesses conducted by the
Transferor on any of the Owned Premises or Leased Premises,
and, to the Knowledge of the Transferor, none of the
improvements included in the Owned Premises or the Leased
Premises, is in material violation of any building line or use
or occupancy restriction, limitation, condition or covenant of
record, any zoning or building law, code or ordinance, or any
public utility or other easement.
(j) Personal Property. The Transferor has good title to, or a
valid leasehold in, or a contractual or common law right to use, all of the
personal property it uses in the conduct of the Aseptic Business, free and clear
of all Security Interests.
(k) Intellectual Property.
(i) the Aseptic Business has not infringed upon,
misappropriated or violated any Intellectual Property rights
of third parties, nor has the Transferor received any
complaint, claim, demand or notice alleging any such
infringement, misappropriation or violation (including any
claim that the Transferor must license or refrain from using
any Intellectual Property rights of any third party). To the
Knowledge of the Transferor, no third party has infringed
upon, misappropriated or violated any Intellectual Property
rights related to the Aseptic Business in any respect.
(ii) The section of the Transferor Disclosure
Schedule corresponding to this Section 3(k)(ii) identifies
each item of Intellectual Property that any third party (other
than Transferor) owns or licenses as licensee and that the
Aseptic Business
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uses pursuant to license, sublicense, agreement or
permission, other than any trade names or trademarks of
third parties used by the Aseptic Business under private
label arrangements for such third parties. With respect to
each item of Intellectual Property required to be so
identified in the Transferor Disclosure Schedule, the
Transferor has not granted any sublicense or similar right
with respect to the license, sublicense, agreement or
permission.
(iii) The section of the Transferor Disclosure
Schedule corresponding to this Section 3(k)(iii) identifies
each patent or trademark registration or pending application
which has been issued to or is filed by the Transferor with
respect to any of its Intellectual Property and identifies
each pending patent application or application for
registration which the Transferor has made with respect to any
of its Intellectual Property, in each case that is used by the
Aseptic Business in the conduct of its business ("Aseptic
Business-Related Intellectual Property"). The section of the
Transferor Disclosure Schedule corresponding to this Section
3(k)(iii) also identifies each license, agreement or other
permission which the Transferor has granted to any third party
with respect to any of the Aseptic Business-Related
Intellectual Property (together with any exceptions). The
Transferor has made available to the Transferee correct and
complete copies of all such patents, registrations,
applications, licenses, agreements and permissions (as amended
to date). With respect to each item of Aseptic
Business-Related Intellectual Property (in the case of each
such item other than a United States item, to the Knowledge of
the Transferor): (i) Transferor possesses all right, title and
interest in and to the item, free and clear of any Security
Interest, license, agreement, consent, license or other
restriction which adversely affects the use or ownership of
such item; (ii) the item is not subject to any outstanding
injunction, judgment, order, decree, ruling or charge; (iii)
no action, suit, proceeding, hearing, investigation, charge,
complaint, claim or demand is pending or, to the Knowledge of
the Transferor, threatened against the Transferor or any of
its Subsidiaries which challenges the legality, validity,
enforceability, use or ownership of the item; and (iv) the
Transferor has never agreed to indemnify any Person for or
against any infringement, misappropriation or other conflict
with respect to the item.
(l) Sufficiency of Assets. The Acquired Assets include all of
the assets necessary for the conduct of the businesses of the Aseptic Business
as conducted on the date of this Agreement.
(m) Inventory. The Inventory of the Aseptic Business is of a
quality and quantity which is usable or saleable in the ordinary course of its
business, except to the extent of the reserve for inventory writedown reflected
in the Most Recent Balance Sheet as adjusted in accordance with past custom and
practice for operations and transactions through the Closing Date. Each
ingredient and finished product included in the Inventory of the Aseptic
Business: (i) complies in all material respects with (x) the FDC Act and all
acts amending or supplementing the FDC Act (including,
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without limitation, the Food Additive Amendment of 1958), and (y) the pure food
and drug laws of each and all states of the United States into which any such
product would normally be shipped by the respective Target, (ii) is not
adulterated or misbranded within the meaning of the FDC Act or such state laws,
(iii) is not prohibited from being introduced into interstate commerce under the
provisions of Sections 404 or 505 of the FDC Act, and does not contain a
hazardous substance or a banned substance.
(n) Contracts. The section of the Transferor Disclosure
Schedule corresponding to this Section 3(n) lists the following contracts and
other agreements of the Transferor with respect to the Aseptic Business:
(i) any partnership, joint venture or other similar
agreement or arrangement;
(ii) any agreement concerning confidentiality or
noncompetition;
(iii) any agreement with an Affiliate of the
Transferor;
(iv) any employment agreement or change in control
agreement with any of its officers or employees;
(v) any collective bargaining agreement;
(vi) any indenture, mortgage, promissory note, loan
agreement, guaranty or other agreement or commitment for the
borrowing of money or any related security agreement;
(vii) any agreement under which it has advanced or
loaned any amount to any of its officers and employees other
than the advance or reimbursement of reasonable business
expenses incurred or to be incurred in the ordinary course of
business;
(viii) any agreement under which the Transferor is
lessee or lessor of or holds or operates any real property;
(ix) any agreement under which the Transferor is
lessee or lessor of or holds or operates any material personal
property;
(x) any warehouse agreement;
(xi) any agreement for the sale or purchase of
products or services other than purchase or sale orders
entered into in the ordinary course of business;
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(xii) any environmental indemnity agreement for the
benefit of a party other than the Transferor;
(xiii) any license, sublicense, agreement or
permission (as licensee or licensor) with respect to any of
the Aseptic Business-Related Intellectual Property;
(xiv) any capital lease;
(xv) any supply agreement; or
(xvi) any other agreement or group of related
agreements with the same party involving more than $65,000 per
year and not terminable by the Transferor on 6 months' or less
notice without penalty.
The Transferor has made available to the Transferee a correct and complete copy
of each such contract or agreement (as amended to date), except that the
Transferor has made available to the Transferee a written summary of the
significant terms (other than with respect to pricing and specifications) of the
Supply Agreement, dated as of October 9, 1996, by and between the Transferor and
Silgan Containers Corporation. With respect to each such contract or agreement
(insofar as the following relates to any party thereto other than the
Transferor, to the Knowledge of the Transferor): (i) the contract or agreement
is in full force and binding upon the parties thereto; (ii) no party is in
breach or default, and no event has occurred which with notice or lapse of time
would constitute a breach or default, or permit termination, modification or
acceleration, under the contract or agreement; and (iii) no party has repudiated
any provision of the contract or agreement.
(o) Powers of Attorney. There are no outstanding powers of
attorney executed on behalf of the Transferor with respect to the Aseptic
Business.
(p) Insurance. The section of the Transferor Disclosure
Schedule corresponding to this Section 3(p) contains a description of all
policies of fire, liability, workers' compensation and other forms of insurance
providing insurance coverage to or for the Aseptic Business, and the name of the
owner of each such policy. All premiums with respect thereto have been paid when
due and no notice of cancellation or termination has been received with respect
to any such policy. All such policies and the coverage provided thereunder will
continue to be in full force and effect through the Closing Date (but, except in
the case of coverage under those policies owned solely by the Aseptic Business,
if any, the coverage provided to or for the Aseptic Business thereunder may be
canceled as of the Closing Date). No such insurer has any right of payment,
whether by way of set-off, indemnity or otherwise, of any nature whatsoever,
against the Transferor or the Aseptic Business, as the case may be, in respect
of any recovery under any such policy.
(q) Litigation. The section of the Transferor Disclosure
Schedule corresponding to this Section 3(q) sets forth each instance in which
the Transferor with respect to Aseptic Business: (i) is subject to any
outstanding injunction, judgment, order, decree, ruling or charge or (ii) is a
party
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to any action, suit, proceeding, hearing or investigation of, in or before any
court or quasi-judicial or administrative agency of any federal, state, local or
foreign jurisdiction. The section of the Transferor Disclosure Schedule
corresponding to this Section 3(q) also sets forth all actions, suits,
proceedings, hearings or investigations of, in or before any court or
quasi-judicial or administrative agency of any federal, state, local or foreign
jurisdiction with which, to the Knowledge of the Transferor, the Transferor with
respect to Aseptic Business has been threatened.
(r) Arbitration. The Transferor is not a party to, or bound
by, any decree, order or arbitration award (or agreement entered into in any
administrative, judicial or arbitration proceeding) with respect to or affecting
the properties, assets, personnel or business activities of the Aseptic
Business.
(s) Product Warranty. The Transferor has not made any oral or
written warranties with respect to the quality or absence of defects of its
products with respect to the Aseptic Business which it has sold and which are in
force as of the date hereof. There are no claims pending or, to the Knowledge of
the Transferor, anticipated or threatened against the Transferor with respect to
the quality of or absence of defects in such products. The Transferor has not
paid or been required to pay direct, incidental or consequential damages to any
person in connection with any of such products.
(t) Employees. To the Knowledge of the Transferor, no
executive, key employee or significant group of employees plans to terminate
employment with the Aseptic Business during the next 12 months. The Aseptic
Business has not experienced any strike or material grievance, claim of unfair
labor practice or other collective bargaining dispute within the past two years.
To the Knowledge of the Transferor, there is no organizational effort presently
being made or threatened by or on behalf of any labor union with respect to
employees of the Aseptic Business.
(u) Top Customers. The section of the Transferor Disclosure
Schedule corresponding to this Section 3(u) sets forth a complete and correct
list of the top 10 customers by dollar volume of the Aseptic Business during the
fiscal year ended June 27, 1998. Except in the ordinary course, to the Knowledge
of the Transferor none of such customers intends to cease doing business with
the Aseptic Business or to significantly reduce the general level of business it
is currently doing with the Aseptic Business.
(v) Employee Benefits. The section of the Transferor
Disclosure Schedule corresponding to this Section 3(v) lists each Employee
Benefit Plan of the Transferor in which the employees of the Aseptic Business
participate on the date hereof. The Transferor has made available to the
Transferee true and correct copies (or summaries) of all such Employee Benefit
Plans. The Transferor does not participate in or contribute to any Multiemployer
Plan with respect to any employee or former employee of the Aseptic Business.
The Transferor has not incurred any liability to the PBGC, the Internal Revenue
Service, any Multiemployer Plan or otherwise with respect to any Employee
Pension Benefit Plan currently or previously maintained by members of the
controlled group of companies (as defined in Sections 414(b) and (c) of the
Code) that includes
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the Transferor (the "Controlled Group") that has not been satisfied in full, and
no condition exists that presents a material risk to any member of the
Controlled Group of incurring such a liability, other than any liability for
premiums due to the PBGC. The Transferor's Savings Plan has received a
determination letter from the Internal Revenue Service that the plan is
qualified under Section 401(a) of the Code and nothing has occurred since the
date of such determination that could adversely effect the qualified status of
such Plan. No payment (excluding any payment the right to which was created
subsequent to the Closing Date) that will be made by the Transferor to any
Transferred Employee after the Closing Date on account of the transactions
contemplated by this Agreement will be non-deductible to the Transferee or
subject to excise tax, under Code Section 280G or Code Section 4999, nor will
the Transferee be required to "gross up" any Transferred Employee because of the
imposition of such excise tax. The Transferor will make available to the
Transferee within 30 days of the date of this Agreement information regarding
the post-retirement medical benefits currently provided to employees of the
Aseptic Business and the obligations existing under FAS 106 with respect to such
employees.
(w) Guaranties. The Aseptic Business is not a guarantor or
otherwise is responsible for any liability or obligation (including
indebtedness) of any other Person.
(x) Environmental and Public Safety Matters.
(i) The Transferor and, to the Knowledge of the
Transferor, its predecessors has complied in all material
respects and is in compliance in all material respects with
all Environmental Requirements with respect to the Aseptic
Business.
(ii) Without limiting the generality of the
foregoing, the Transferor has obtained, has complied in all
material respects with and is in compliance in all material
respects with all material permits, licenses and other
authorizations required to be obtained by it pursuant to
Environmental Requirements applicable to the Owned Premises
and Leased Premises.
(iii) The Transferor has not received any written or
oral notice, report or other information regarding any actual
or alleged violation of Environmental Requirements, or any
actual or alleged liabilities or potential liabilities
(whether accrued, absolute, contingent, unliquidated or
otherwise), including any investigatory, remedial or
corrective obligations, under any Environmental Requirements,
relating to any of the Owned Premises or Leased Premises.
(iv) None of the following exists at any of the Owned
Premises or Leased Premises: (1) underground storage tanks,
(2) asbestos-containing material in any friable and damaged
form or condition, (3) materials or equipment containing
polychlorinated biphenyls or other hazardous substances or (4)
landfills, surface impoundments or disposal areas.
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(v) The Aseptic Business has not treated, stored,
disposed of, arranged for or permitted the disposal of,
transported, handled or released any substance, including
without limitation any hazardous substance, or owned or
operated any property or facility, in a manner that has given
or would give rise to any liability, including any liability
for response costs, corrective action costs, personal injury,
property damage, natural resources damages or attorney fees,
pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended ("CERCLA"),
or the Solid Waste Disposal Act, as amended ("SWDA"), or any
other Environmental Requirements; nor, to the Knowledge of the
Transferor, has any predecessor of the Transferor with respect
to the Aseptic Business done so.
(vi) This Section 3(x) contains the sole and
exclusive representations and warranties of the Transferor
with respect to environmental and public safety matters,
including without limitation any arising under any
Environmental Requirements, to the exclusion among others of
the Transferor's representations and warranties in Section
3(f).
(y) Certain Business Relationships With Affiliates of the
Transferor. The Aseptic Business has not been involved in any business
arrangement or relationship (including without limitation any support service
arrangement) with any other division or Affiliate of the Transferor and such
divisions or Affiliates do not own any material asset, tangible or intangible,
which is used in the Aseptic Business.
(z) Undisclosed Liabilities. [Intentionally left blank]
(aa) Brokers' Fees. Neither the Transferor nor any of its
Subsidiaries has any liability or obligation to pay any fees or commissions to
any broker, finder or agent with respect to the transactions contemplated by
this Agreement for which the Transferee or any of its Subsidiaries could become
liable or obligated.
(bb) Year 2000 Compliance. To the Knowledge of the Transferor,
a total expenditure not in excess of $75,000 with respect to ensuring the
computer systems (including all hardware, software, firmware, operating systems
and application systems) included in the Acquired Assets are year 2000 compliant
will be sufficient to bring such computer systems as of the date of this
Agreement into year 2000 compliance.
(cc) Disclosure. No representation or warranty by the
Transferor in this Agreement or in any document, written statement, certificate
or schedule required to be furnished to the Transferee pursuant hereto or in
connection with the transactions contemplated hereby, contains any untrue
statement of a material fact.
4. Representations and Warranties of the Transferee. The Transferee
represents and warrants to the Transferor that:
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(a) Organization of the Transferee. The Transferee is a
corporation duly organized, validly existing, and in good standing under the
laws of the jurisdiction of its incorporation.
(b) Authorization of Transaction. The Transferee has full
corporate power and corporate authority to execute and deliver this Agreement
and all other agreements contemplated hereby to which the Transferee is or is to
be a party and to perform its obligations hereunder and thereunder. The board of
directors of the Transferee has duly approved this Agreement and all other
agreements contemplated hereby to which the Transferee is or is to be a party
and has duly authorized the Transferee's execution and delivery of this
Agreement and all such other agreements and the consummation of the transactions
on the part of the Transferee contemplated hereby and thereby. This Agreement
and all such other agreements constitute the valid and legally binding
obligations of the Transferee, enforceable in accordance with their respective
terms, except as enforceability may be limited by bankruptcy or other laws
affecting creditor's rights generally and limitations on the availability of
equitable remedies.
(c) Noncontravention. Neither the execution and delivery of
this Agreement and the other agreements contemplated hereby to which the
Transferee is or is to be a party, nor the consummation of the transactions on
the part of the Transferee contemplated hereby and thereby, (i) violates any
constitution, statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge or other restriction of any government, governmental agency or
court to which the Transferee is subject (except that no representation or
warranty is made with respect to any antitrust statute, regulation, rule or
other restriction) or any provision of the charter or bylaws (or similar
governing documents) of the Transferee or (ii) conflicts with, results in a
breach of, constitutes a default under, results in the acceleration of, creates
in any party the right to accelerate, terminate, modify or cancel, or requires
any notice under, any agreement, contract, lease, license, instrument or other
arrangement to which the Transferee is a party or by which it is bound or to
which any of its assets is subject (or results in the imposition of any Security
Interest upon any of its assets). The Transferee does not need to give any
notice to, make any filing with or obtain any authorization, consent or approval
of, any government or governmental agency in order for the Parties to consummate
the transactions contemplated by this Agreement, other than in connection with
the provisions of the Hart-Scott-Rodino Act.
(d) Brokers' Fees. Neither the Transferee nor any of its
Subsidiaries has any liability or obligation to pay any fees or commissions to
any broker, finder or agent with respect to the transactions contemplated by
this Agreement for which the Transferor or any of its Subsidiaries could become
liable or obligated.
5. Pre-Closing Covenants. The Parties agree as follows with respect to
the period between the execution of this Agreement and the Closing.
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(a) General. Each of the Parties shall use its reasonable best
efforts to take all action and to do all things necessary, proper or advisable
in order to consummate and make effective, as soon as reasonably practicable,
the transactions contemplated by this Agreement.
(b) Regulatory Matters and Approvals. Each of the Parties
shall give any notices to, make any filings with, and use its reasonable best
efforts to obtain any authorizations, consents and approvals of, governments and
governmental agencies in connection with the matters referred to in Sections
3(c) and 4(c). Without limiting the generality of the foregoing, the Transferee
and the Transferor shall each file any Notification and Report Forms and related
material that it may be required to file in connection with the transactions
contemplated by this Agreement with the Federal Trade Commission and the
Antitrust Division of the United States Department of Justice under the
Hart-Scott-Rodino Act, shall each use its reasonable best efforts to obtain an
early termination of the applicable waiting period, and shall each make any
further filings pursuant thereto that may be necessary, proper or advisable.
(c) Operation of Business. The Transferor shall cause the
Aseptic Business to conduct its business only in the ordinary course and
consistent with past practice, including causing the Aseptic Business to use all
commercially reasonable efforts to preserve intact its present business and
organization, to keep available the services of its current officers and
employees, to preserve its relationships with customers, suppliers and others
having business dealings with it and to maintain in full force and effect all
material contracts, documents and arrangements. The Transferor shall also cause
the Aseptic Business to not make any material change to its inventory management
practices and to manage its inventories in accordance with past custom and
practice.
(d) Full Access. The Transferor shall permit representatives
of the Transferee to have full access at all reasonable times, and in a manner
so as not to interfere unreasonably with the normal business operations of the
Aseptic Business, to all premises, properties, personnel, books, records
(including tax records and accounting work papers), contracts and documents of
or pertaining to the Aseptic Business. The Transferee shall treat and hold as
such any Confidential Information it receives from the Transferor in the course
of the access contemplated by this Section 5(d).
(e) Notice of Developments. Each Party shall give prompt
written notice to the other in the event its own representations and warranties
are discovered to be untrue as of the time made or in the event such Party
determines that such representations and warranties shall be untrue as if made
at and as of the Closing Date. No disclosure by any Party pursuant to this
Section 5(e), however, shall be deemed to amend or supplement the Transferor
Disclosure Schedule or to cure any misrepresentation or breach of warranty.
(f) Exclusivity. After the execution and delivery of this
Agreement, the Transferor shall not solicit, initiate, participate in
discussions of or encourage the submission of any proposal or offer from any
Person relating to the acquisition of all or substantially all of the assets of
the Aseptic Business.
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(g) Title Insurance Commitments. The Transferor will use its
commercially reasonable efforts to obtain and deliver or cause to be delivered
to the Transferee prior to the Closing ALTA (or equivalent) title insurance
commitments with respect to each of the Owned Premises and will deliver to the
Transferee all existing title insurance policies and surveys in the possession
or control of the Transferor with respect to the Owned Premises.
(h) Release of Liens on Acquired Assets. Prior to the Closing,
the Transferor (at its sole cost and expense) shall cause all Security Interests
to be removed and extinguished from each and every Acquired Asset.
6. Post-Closing Covenants. The Parties agree as follows with respect to
the period following the Closing.
(a) General. In case at any time after the Closing any further
action is necessary to carry out the purposes of this Agreement, each of the
Parties will take such further action (including the execution and delivery of
such further instruments and documents) as the other Party reasonably may
request, all at the sole cost and expense of the requesting Party (unless the
requesting Party is entitled to indemnification therefor under Section 8). Each
of the Parties shall, and shall cause its officers, directors, employees and
accountants, and each of its Subsidiaries, to assist and cooperate fully with
the other Party and its officers, employees, accountants, counsel, financial
advisors and other representatives (as reasonably requested), in connection with
the preparation of any reports, schedules and other documents required to be
filed as a result of the transactions contemplated hereunder pursuant to the
requirements of federal and state securities laws, including for illustrative
purposes only, the preparation of audited financial statements and pro forma
financial information in connection with any reporting obligation under Section
13 or 15(d) of the Securities Exchange Act and Form 8-K.
(b) Allocation of Purchase Price. The Transferor and the
Transferee agree to allocate the value of the Aseptic Business, together with
the Assumed Liabilities and certain other relevant items, among the Acquired
Assets for tax purposes in accordance with the Code and applicable rules and
regulations thereunder as mutually agreed by the Transferor and the Transferee.
For purposes of the foregoing, the Aseptic Business shall be valued at the
amount determined by an appraiser selected by the Transferor subsequent to the
Closing and reasonably acceptable to the Transferee, the cost of which appraisal
shall be shared equally by the parties. Such appraisal shall include both an
overall valuation of the Aseptic Business and a valuation of the real property
and tangible personal property of the Aseptic Business. The Transferor and the
Transferee agree to report the allocation of such amounts in a manner entirely
consistent with such valuation and allocations and agree to act in accordance
with such valuation and allocations in the preparation of financial statements
and filing of all tax returns (including, without limitation, filing Form 8594
with its Federal income tax return for the taxable year that includes the date
of the Closing) and in the course of any tax audit, tax review or tax litigation
relating thereto.
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(c) Retention of and Access to Records. Until the seventh
anniversary of the Closing Date (the "Records Retention Date"), the Transferee
shall (and shall cause each of its Subsidiaries to) permit the Transferor and
its attorneys, accountants, agents and designees such access to, and right to
copy, the records and documents of the Aseptic Business which exist at the
Closing (regardless of whether such documents or records are in the possession
of the Aseptic Business, the Transferee or an Affiliate of the Transferee) as
the Transferor may deem reasonably necessary or reasonably desirable. Any such
examination and copying shall be at the expense of the Transferor, shall be
performed at the place where such records and documents are regularly maintained
and shall not unreasonably interfere with the normal business activities of the
furnishing party. In the event that the Transferee (or any of its Affiliates)
intends to destroy any of such records or documents prior to the Records
Retention Date, it shall so notify the Transferor in writing at least 90 days
before taking such action (and the Transferor shall have the right to review and
remove at its expense any of such records or documents to be destroyed).
(d) Non-Compete. The Transferor agrees not to (and to cause
its Subsidiaries not to), during the period of 5 years following the Closing
(the "Non-Compete Period"), directly or indirectly own any interest in, manage,
control, participate in, consult with, render services for or in any manner
engage in, any business (other than the manufacture, distribution and sale of
vegetable dips, snack dips and guacamole dips) that the Aseptic Business
conducts or engages in, within the United States or any other geographical area
in which, at the Closing Date, the Aseptic Business conducts or engages in such
business (the "Non-Compete Businesses"); provided that nothing herein shall
prohibit the Transferor and its Subsidiaries from: (i) acquiring any interest in
any Person which, directly or indirectly, engages in any of the Non-Compete
Businesses and subsequently managing, controlling, participating in, consulting
with or rendering services for such Person or engaging through such Person in
any of the Non-Compete Businesses, so long as (x) the sale of the products which
relate to the Non-Compete Businesses on a worldwide basis does not account for
more than the lesser of (1) $12,500,000 in sales on an annual basis and (2) 5%
of the sales of such Person either immediately before or after such acquisition
or (y) if within 270 days of such acquisition the Transferor disposes of to a
Person which is not an Affiliate of the Transferor, or enters into a definitive
agreement with a Person which is not an Affiliate of the Transferor to dispose
of, that portion of the acquired business that engages in the Non-Compete
Businesses; or (ii) owning less than 20% of the equity securities or other
interest in any Person, provided such ownership is passive other than the
exercise of shareholder rights. If, at the time of enforcement of this Section,
a court holds that the restrictions stated herein are unreasonable under
circumstances then existing, the Transferee and the Transferor agree that the
maximum period, scope or geographical area reasonable under such circumstances
shall be substituted for the stated period, scope or area. The Parties agree
that money damages would not be an adequate remedy for any breach of this
Section. Therefore, in the event of a breach or threatened breach of this
Section, the Transferee or its successors or assigns may, in addition to other
rights and remedies existing in their favor, apply to any court of competent
jurisdiction for specific performance and/or injunctive or other relief in order
to enforce, or prevent any violation of, the provisions hereof (without posting
a bond or other security). Transferor agrees that the restrictions contained in
this Section are reasonable.
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(e) Post-Closing License of Transferor's Names. Subject to the
terms and conditions of this Section, the Transferor grants to the Transferee
for a period of up to 2 years from the Closing Date, the right to use the
Aseptic Business Packaging/Labels on pudding and cheese sauce products sold by
the Aseptic Business subsequent to the Closing in accordance with the past
custom and practice of the Aseptic Business. The Transferee shall cause any such
product on which any of the Aseptic Business Packaging/Labels is used to be of a
character and quality substantially equivalent to the character and quality of
such product manufactured and sold, or caused to be manufactured and sold, by
the Aseptic Business before the Closing Date. The Transferee shall destroy and
not use any damaged or imperfect Aseptic Business Packaging/Labels. From time to
time upon reasonable notice, the Transferor shall have the right, at its
expense, to conduct inspections during normal business hours of the
manufacturing operations of the Aseptic Business to ensure that the Transferee
is complying with the foregoing obligations.
(f) Research and Development Facility. The Transferee grants
to the Transferor, for the 90 day period immediately subsequent to the Closing,
the right to occupy, rent free, the Research and Development Facility and use
the related office equipment and supplies in accordance with the past custom and
practice of the employees of the Transferor which occupied the Research and
Development Facility prior to the date of this Agreement and which are employed
by the Transferor subsequent to the Closing.
7. Closing. The Closing shall take place simultaneously with the SPA
Closing. The obligations of the Transferor and the Transferee to consummate the
Closing are subject to the conditions to closing set forth in the Stock Purchase
Agreement.
8. Indemnification.
(a) General. From and after the Closing, the Parties shall be
indemnified as provided in this Section 8. For the purposes of this Section 8,
each Party shall be deemed to have remade all of its representations and
warranties contained in this Agreement at the Closing with the same effect as if
originally made at the Closing; provided that for purposes thereof the
Transferor Disclosure Schedule shall be deemed amended to reflect any changes
therein furnished to the Transferee by the Transferor in writing in connection
with the Closing that are contemplated herein or permitted herein.
(b) Indemnification of Transferee Indemnitees. The Transferor
shall indemnify, save and keep the Transferee and its successors and permitted
assigns, and their respective directors, officers, employees and agents, and the
heirs, executors and personal representatives of each of the foregoing (each a
"Transferee Indemnitee" and collectively the "Transferee Indemnitees"), harmless
against and from all Damages sustained or incurred by any Transferee Indemnitee
as a result of or arising out of:
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(i) any inaccuracy in or breach of any representation
and warranty made by the Transferor to the Transferee herein
or in any other document executed in connection with the
Closing under this Agreement;
(ii) any breach by the Transferor of, or failure of
the Transferor to comply with, any of the covenants or
obligations under this Agreement to be performed by the
Transferor (including, without limitation, the obligations of
the Transferor under this Section 8);
(iii) any liability or obligation which is an
Excluded Liability (including any liability or obligation that
becomes a liability or obligation of the Transferee by
operation of law, bulk sale statute or otherwise);
(iv) any Taxes of the Transferor; or
(v) the Transferor's failure to satisfy its
obligations under any of its Employee Benefit Plans.
(c) Indemnification of Transferor Indemnitees. The Transferee
shall indemnify, save and keep the Transferor and its successors and permitted
assigns, and its directors, officers, employees and agents, and the heirs,
executors and personal representatives of each of the foregoing (each a
"Transferor Indemnitee" and collectively the "Transferor Indemnitees"), harmless
against and from all Damages sustained or incurred by any Transferor Indemnitee
as a result of or arising out of:
(i) any inaccuracy in or breach of any representation
and warranty made by the Transferee to the Transferor herein
or in any other document executed in connection with the
Closing under this Agreement;
(ii) any breach by the Transferee, or failure of the
Transferee to comply with, any of the covenants or obligations
under this Agreement to be performed by the Transferee
(including, without limitation, the obligations of the
Transferee under this Section 8); or
(iii) any liability or obligation which is an Assumed
Liability.
(d) Limitation on Indemnification Obligations.
(i) All representations and warranties of the
Transferor and the Transferee contained in this Agreement,
other than any intentional misrepresentation (which shall not
be subject to any survival period) and the representations and
warranties of the Transferor in Sections 3(h) and 3(v), shall
survive the Closing and continue in full force and effect for
a period of 18 months thereafter. Each of the
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representations and warranties of the Transferor contained in
Section 3(h) shall survive the Closing and continue in full
force and effect until thirty days after the expiration of the
statute of limitations applicable to the subject thereof. Each
of the representations and warranties of the Transferor
contained in Section 3(v) shall survive the Closing and
continue in full force and effect thereafter. A claim by a
Transferee Indemnitee or a Transferor Indemnitee for
indemnification under Section 8(b)(i) or 8(c)(i),
respectively, shall be ineffective unless such Person delivers
a written claim for indemnification within the survival period
specified in this Section 8(d)(i) as applicable to the
representation or warranty that is the subject of such claim.
(ii) Notwithstanding anything to the contrary
contained herein, (A) the Transferee Indemnitees shall only be
entitled to indemnification pursuant to Section 8(b)(i) once
the aggregate amount otherwise payable to the Transferee
Indemnitees pursuant to such Section exceeds an amount equal
to $1,330,000 (the "Threshold Amount"), and after such
aggregate amount exceeds such dollar amount the Transferee
Indemnitees shall be entitled to seek indemnification only for
indemnification claims above the Threshold Amount, and (B) the
indemnification to which the Transferee Indemnitees are
entitled pursuant to Section 8(b)(i) shall be subject to an
aggregate ceiling equal to $33,250,000; provided that such
Threshold Amount and such ceiling shall not apply to any
breaches of representation and warranties contained in
Sections 3(h) and 3(v) or to any intentional
misrepresentation.
(e) Cooperation. Subject to the provisions of Section 8(f),
the Indemnifying Party shall have the right, at the Indemnifying Party's own
expense, to participate in the defense of any Third Party Claim, and if said
right is exercised, the Indemnifying Party and the Indemnified Party shall
cooperate in the investigation and defense of said Third Party Claim.
(f) Third Party Claims Subject to Indemnification.
(i) Promptly following the receipt of notice of a
Third Party Claim for which it may seek indemnification
hereunder, the party receiving the notice of the Third Party
Claim shall notify the Indemnifying Party of such Third Party
Claim. The failure to give such notice shall not relieve the
Indemnifying Party of its obligations under this Agreement
except to the extent that the Indemnifying Party is prejudiced
as a result of the failure to give such notice. Within 15
business days after receipt of the notice by the Indemnifying
Party pursuant to the preceding sentence, the Indemnifying
Party shall notify the Indemnified Party whether it elects to
undertake the defense of the Third Party Claim. If the
Indemnifying Party elects to undertake the defense of such
Third Party Claim, it shall do so at its own expense with
counsel of its own choosing and it shall acknowledge in
writing its indemnification obligations as provided in this
Agreement to the Indemnified Party
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as to such Third Party Claim. If the Indemnifying Party elects
not to defend such Third Party Claim or fails to pursue the
defense of such Third Party Claim diligently, the Indemnified
Party shall have the right to undertake the defense of such
Third Party Claim through counsel of its own choosing. The
Party that defends the Third Party Claim shall keep the other
Party fully advised of the progress and disposition of such
claim.
(ii) In the event the Indemnifying Party elects not
to undertake the defense of a Third Party Claim or fails to
pursue diligently the defense of such claim and the
Indemnified Party litigates or otherwise contests or settles
the Third Party Claim, then, provided that and to the extent
that a final determination has been made that the Indemnified
Party is entitled to indemnification therefor hereunder, the
Indemnifying Party shall promptly reimburse the Indemnified
Party for amounts paid to litigate or otherwise contest or
settle such claim and all amounts paid in satisfaction of a
judgment against the Indemnified Party in contesting such
claim and in providing its right to indemnification hereunder,
all in accordance with the provisions of this Section 8.
(iii) No Third Party Claim will be settled by the
Indemnifying Party or the Indemnified Party without the
consent of the other, which consent will not be unreasonably
withheld or delayed; provided, however, that if such claim
asserts that the Indemnifying Party is jointly and severally
liable and the Indemnified Party shall be fully released from
all liability relating to such Third Party Claim in connection
with such settlement, the Indemnifying Party shall not be
required to obtain the consent of the Indemnified Party. If,
however, the Indemnified Party refuses to consent to a bona
fide offered settlement which the Indemnifying Party wishes to
accept, the Indemnified Party shall be required to continue to
defend such Third Party Claim free of any participation by the
Indemnifying Party, at the sole expense of the Indemnified
Party. In such event, the Indemnifying Party shall pay to the
Indemnified Party the amount of the offer of settlement which
the Indemnified Party refused to accept, plus the costs and
expenses incurred by the Indemnified Party prior to the date
the Indemnifying Party notifies the Indemnified Party of the
offer of settlement for which the Indemnified Party is
entitled to indemnification, all in accordance with the terms
of this Section 8, and, upon the payment or receipt of such
amount, as the case may be, the Indemnifying Party shall have
no further liability with respect to such Third Party Claim.
The Indemnifying Party shall be entitled to recover from the
Indemnified Party any additional expenses incurred by the
Indemnifying Party as a result of the decision of the
Indemnified Party to pursue the matter.
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(g) Exclusivity.
(i) Except to the extent such limitation is
prohibited by law and such prohibition is not waivable by the
Transferee Indemnitees, the indemnification provisions of this
Section 8 shall constitute the exclusive remedy of the
Transferee Indemnitees in connection with this Agreement or
the transactions contemplated herein, including without
limitation for any of the matters described in Sections 8(b).
To the maximum extent permitted by law, each of the Transferee
Indemnitees waives the benefit of any such prohibition.
(ii) Except to the extent such limitation is
prohibited by law and such prohibition is not waivable by the
Transferor Indemnitees, the indemnification provisions of this
Section 8 shall constitute the exclusive remedy of the
Transferor Indemnitees in connection with this Agreement or
the transactions contemplated herein, including without
limitation for any of the matters described in Sections 8(c).
To the maximum extent permitted by law, each of the Transferor
Indemnitees waives the benefit of any such prohibition.
9. Termination.
(a) If the All Cash Alternative becomes applicable or if the
Stock Purchase Agreement is terminated in accordance with the terms and
conditions thereof, then this Agreement shall automatically terminate without
any liability of any Party to any other Party (except for any liability of any
Party then in breach, which shall survive any such termination).
(b) If this Agreement is terminated pursuant to Section 9(a),
all rights and obligations of the Parties hereunder shall terminate without any
liability of any Party to any other Party (except for any liability of any Party
then in breach, which shall survive any such termination).
10. Miscellaneous.
(a) Press Releases and Public Announcements. Neither Party
(nor any of its Affiliates) shall issue any press release or make any public
announcement or disclosure relating to the subject matter of this Agreement
without the prior written approval of the other Party, which approval shall not
be unreasonably withheld or delayed, unless such disclosure is required by
applicable law or governmental regulation or by order of a court of competent
jurisdiction (in which case prior to making such disclosure the Party which
proposes to make such disclosure shall give written notice to the other Party,
describing in reasonable detail the proposed content of such disclosure, and
shall permit the other Party to review and comment upon the form and substance
of such disclosure).
(b) No Third-Party Beneficiaries. This Agreement shall not
confer any rights or remedies upon any Person other than the Parties and their
respective successors and permitted
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assigns; provided, however, that the provisions of Section 8 concerning
indemnification are intended for the benefit of the Indemnified Parties and
their respective heirs, executors, personal representatives, successors and
assigns.
(c) Expenses. Whether or not the transactions contemplated by
this Agreement are consummated, all costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the Party incurring such expenses; provided that the Transferee shall promptly
pay all out-of-pocket expenses incurred by the Transferor or any of its
Subsidiaries in connection with any assistance or cooperation requested by the
Transferee pursuant to the second sentence of Section 6(a).
(d) Entire Agreement. This Agreement constitutes the entire
agreement between the Parties and supersedes any prior understandings,
agreements or representations by or between the Parties, written or oral (other
than the Stock Purchase Agreement), to the extent they related in any way to the
subject matter hereof.
(e) Succession and Assignment. This Agreement shall be binding
upon and inure to the benefit of the Parties and their respective successors and
permitted assigns. No Party may assign either this Agreement or any of its
rights, interests or obligations hereunder without the prior written approval of
the other Party.
(f) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original but which together shall
constitute one and the same instrument.
(g) Headings. The section headings contained in this Agreement
are inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(h) Notices. All notices, requests, demands, claims and other
communications hereunder shall be in writing. Any notice, request, demand, claim
or other communication hereunder shall be sent by registered or certified mail,
return receipt requested, postage prepaid and addressed to the intended
recipient as set forth below:
If to the Transferor:
Agrilink Foods, Inc.
90 Linden Place
Rochester, NY 14625
Attn: Dennis M. Mullen, Chief Executive Officer
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With a copy (which shall not constitute notice to the Transferor) to:
Harris Beach & Wilcox, LLP
130 East Main Street
Rochester, NY 14604
Attn: David M. Mehalick, Esq.
If to the Transferee:
Dean Foods Company
3600 N. River Road
Franklin Park, IL 60131-2185
Attention: President
With a copy (which shall not constitute notice to the Transferee) to:
Kirkland & Ellis
200 E. Randolph Drive
Chicago, IL 60601
Attention: Brian D. Hogan, Esq.
or by any other means (including personal delivery, expedited courier, messenger
service, telecopy, telex, ordinary mail or electronic mail). No such notice,
request, demand, claim or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
Party may change the address to which notices, requests, demands, claims and
other communications to it hereunder are to be delivered by giving the other
Party notice in the manner herein set forth.
(i) Governing Law. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of Illinois without
giving effect to any choice or conflict of law provision or rule (whether of the
State of Illinois or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of Illinois.
(j) Amendments and Waivers. The Parties may mutually amend any
provision of this Agreement at any time prior to the Closing with the prior
authorization of their respective boards of directors. No amendment of any
provision of this Agreement shall be valid unless the same shall be in writing
and signed by the Parties. No waiver by any Party of any default,
misrepresentation or breach of warranty or covenant hereunder shall, unless
expressly so provided therein, be deemed to extend to any prior or subsequent
default, misrepresentation or breach of warranty or covenant hereunder
or affect in any way any rights arising by virtue of any prior or subsequent
occurrence.
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(k) Severability. Any term or provision of this Agreement that
is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction.
(l) Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state, local or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context otherwise requires. The
word "including" shall mean "including, without limitation." As used in this
Agreement (including any amendments hereto), the masculine, feminine or neuter
gender and the singular or plural number shall be deemed to include the others
whenever the context so requires.
(m) Incorporation of Exhibits and Disclosure Schedules. The
Exhibits identified in this Agreement and the Transferor Disclosure Schedule are
incorporated herein by reference and made a part hereof.
*****
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
AGRILINK FOODS, INC.
By: _________________________________________
Title: ______________________________________
DEAN FOODS COMPANY
By: _________________________________________
Title: ______________________________________
<PAGE>
<PAGE>
EXHIBIT A
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (including Schedule A hereto, this "Agreement")
is made on [__________], 1998, by and between Agrilink Foods, Inc., a New York
corporation ("Licensor"), and Dean Foods Company, a Delaware corporation
("Licensee"). Certain capitalized terms used herein are defined in Section 1.
Recitals:
Pursuant to the Asset Transfer Agreement, dated July 24, 1998, by and
between Licensee and Licensor (the "Asset Transfer Agreement"), Licensor is
transferring to Licensee its Aseptic Business (as hereinafter defined). Licensor
is retaining certain of the trademarks used in the Aseptic Business, but, as
required by the Asset Transfer Agreement, the Licensor is granting to the
Licensee pursuant to this Agreement a royalty-free and perpetual license with
respect to the trademarks set forth on Exhibit A attached hereto for certain
uses (the "Trademarks").
THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which the parties acknowledge, the parties agree as follows:
1. Definitions
In this Agreement, the following terms shall have the following
meanings:
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act.
"Aseptic Business" means the aseptic business of the Transferor,
including without limitation all operations of the Transferor conducted out of
its Benton Harbor, Michigan facility and all operations of the Transferor
related to or supporting the sales shown in the Financial Statements (as defined
in the Asset Transfer Agreement).
"Aseptic Product" means (i) any product currently being manufactured or
processed by the Aseptic Business and (ii) any other product which, at the time
of Licensee's first use of a Trademark thereon, the Licensor is not then and has
not theretofore been using such Trademark on such product.
"Confidential Information" means and includes all information relating
to Aseptic Products, together with all information concerning any party's
business activities, processes, technology, know-how of every kind, customers,
suppliers, contracts, finances, personnel, research, plans,
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policies and intentions, including matters which, though technically not
confidential or trade secrets, might prove prejudicial to the relevant party if
disclosed to others. Confidential Information shall not include information
which (a) is or becomes publicly known otherwise than by a breach of this or any
other agreement, (b) is already known to the disclosing party prior to
disclosure by the party claiming the information was Confidential Information,
(c) is disclosed to the disclosing party by a third party who has a legal right
to make the disclosure or (d) is required to be disclosed to the public by
applicable law. The parties acknowledge that any party shall be permitted to
disclose Confidential Information required to be disclosed by law to certain
governmental authorities and, in such circumstances, the disclosing party shall
take all reasonable steps to protect the confidentiality of such Confidential
Information.
"Dean Logo" means the bird-on-mailbox logo of Licensee, U.S. Reg. Nos.
1,519,979 and 1,342,947.
"Permitted Use" means use of a Trademark in association with the sale
of an Aseptic Product.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization or a governmental entity (or any
department, agency or political subdivision thereof).
"Promotional and Advertising Material" means labels, packages,
advertising brochures, catalogues and other written or graphic material, all
media advertising including television, radio, newspaper and other media
advertising and all other materials upon which any of the Trademarks is placed.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"Term" means a term commencing as of the date hereof and continuing
perpetually.
"Territory" means anywhere in the United States or the world.
"Trademarks" has the meaning set forth in the Recitals, and also
includes any additional registered trademarks obtained by Licensor pursuant to
Section 2.3 of this Agreement.
2. Grant of Rights
2.1. Subject to the terms and conditions of this Agreement, Licensor
grants to Licensee an exclusive right (including without limitation as against
Licensor) to use the Trademarks for any Permitted Use in the Territory during
the Term.
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2.2. Licensor shall maintain at its expense the registration of the
Trademarks currently in effect as described on Schedule A attached hereto.
2.3. In the event Licensee makes a Permitted Use of a Trademark in
association with the sale of an Aseptic Product that is not included within the
product class or classes to which such Trademark relates, Licensor consents to
such Permitted Use and agrees that, upon the request of and at the expense of
Licensee, Licensor shall use commercially reasonable efforts to promptly obtain
such registration as Licensee requests of such Trademark for such Permitted Use.
3. No Royalty
3.1. Licensee will have the right to use the Trademarks for any
Permitted Use during the Term of this Agreement on a royalty-free basis.
Licensee shall have no obligation to use the Trademarks or to sell or attempt to
sell any Aseptic Products in association with any of the Trademarks.
4. Rights of Ownership
4.1. Licensee acknowledges that:
(a) the Trademarks are the exclusive property of Licensor;
(b) nothing in this Agreement gives Licensee any right,
title or interest in or to the Trademarks by itself
or in combination with any other words, except in
accordance with this Agreement; and
(c) all use and any goodwill generated through the use of
the Trademarks shall enure exclusively to the benefit
of Licensor.
5. Standards
5.1. Aseptic Products manufactured and sold, or caused to be sold, by
Licensee in association with any of the Trademarks shall be of a character or
quality substantially equivalent to the respective standards, specifications and
operating procedures relating to Aseptic Products manufactured and sold, or
caused to be sold, by Licensee before the date of this Agreement.
5.2. Licensee shall use the Trademarks only for a Permitted Use.
5.3. Licensee shall not use any other mark, name, style or design
(other than the Dean Logo on the back panel of product packaging) in association
with any of the Trademarks without the written consent of Licensor, which
consent shall not be unreasonably withheld or delayed. Licensee shall not add to
or modify any of the Trademarks without the prior written consent of Licensor.
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5.4. Licensee shall not register or attempt to register any of the
Trademarks or any other mark, name, style or design which is confusingly similar
to any of the Trademarks, but shall fully cooperate with Licensor by providing
any and all information and materials and executing whatsoever documents as may
be reasonably necessary to enforce the Trademarks against infringement, as may
be requested by Licensor at the expense of Licensor.
6. Right to Inspect
6.1. Licensee shall maintain a vigorous quality control and safety
assurance program with respect to Aseptic Products. From time to time during the
Term and upon reasonable notice, Licensor shall have the right to appoint at its
expense an independent quality inspector or other representative or professional
to conduct inspections during normal business hours of the manufacturing
operations of Licensee for Aseptic Products on which Licensee uses any of the
Trademarks and to ensure that Licensee is complying with its obligations under
this Agreement. Licensor shall cause any inspector or other representative or
professional appointed pursuant to this Section to execute a confidentiality
agreement in favor of Licensee, the form of such confidentiality agreement to be
acceptable to Licensee in its reasonable judgment.
7. Infringement
7.1. Licensee shall promptly notify Licensor of any conflicting use or
any act of infringement, passing-off or unfair competition involving any of the
Trademarks or any marks which may be confusingly similar to any of the
Trademarks which come to Licensee's attention.
7.2. Licensor, at its own expense, shall have the exclusive right to
institute, defend and settle any litigation or proceedings involving the
Trademarks. At Licensor's expense, Licensee shall cooperate with Licensor and
shall supply such information and do such acts as are reasonably requested by
Licensor or desirable in relation to any such litigation or proceedings.
Notwithstanding the foregoing, if Licensor fails to pursue or diligently pursue
a claim or action against a third party which is infringing on any of the
Trademarks (each of such determinations to be made in the good faith judgment of
Licensee), Licensee shall have the right to commence litigation or take any
other action against such third party, with counsel of its own choice, at the
sole cost and expense of (and with any recovery for the sole benefit of)
Licensee. In such event, Licensee shall keep Licensor fully advised of the
progress and disposition of such litigation or action. Licensor shall have no
right to participate in any such litigation or other action or in connection
with any settlement discussions related thereto or to make any decision or
determination in connection therewith. Licensor shall cooperate with Licensee
and its counsel as reasonably requested by Licensee, at the sole cost and
expense of Licensee.
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8. Indemnity and Recalls
8.1. Licensee shall indemnify Licensor and its successors and assigns,
and their respective directors, officers, employees and agents, and the heirs,
executors and personal representatives of each of the foregoing (the
"Indemnified Parties") in respect of any and all claims, costs, damages, fines,
penalties, expenses and liabilities, including without limitation all economic
losses and all legal and other professional costs, which may be suffered or
incurred by any Indemnified Party, in connection with a claim, demand, action,
suit or proceeding brought by a Person and arising out of or relating to (a) the
manufacture, sale or distribution of any Aseptic Product bearing any of the
Trademarks, (b) the use or distribution by Licensee or its agents of Promotional
and Advertising Material bearing any of the Trademarks or (c) any product
liability matter relating to any Aseptic Product bearing any of the Trademarks
or any alleged defect or failure or impurity in any Aseptic Product or its
packaging bearing any of the Trademarks including, without limitation, all costs
of any product recall in connection with any Aseptic Product bearing any of the
Trademarks and any loss of property, economic loss, bodily injury or death of
any Person relating to any such Aseptic Product or its packaging; provided,
however, that such indemnification shall not extend to claims that any Trademark
used in accordance with this Agreement infringes the trademark or copyright
rights of third parties. Licensor shall not settle any such matter without
obtaining Licensee's prior written consent to the terms of settlement, such
consent not to be unreasonably withheld.
8.2. The need for any product recall of any Aseptic Product bearing any
of the Trademarks and the manner in which such product recall shall occur shall
be determined by senior executive officers of Licensee in consultation with
senior executive officers of Licensor. Licensee shall pay the costs of all
product recalls relating to any Aseptic Product bearing any of the Trademarks.
Licensee shall handle all aspects of any such product recall relating to any
Aseptic Product bearing any of the Trademarks. In the event of a product recall,
Licensor and Licensee shall mutually agree upon the manner in which all consumer
queries and complaints are to be handled, and Licensee hereby agrees to
expressly disclaim in each communication required as part of such recall, any
association between such recall and the businesses of the Licensor relating to
the Trademarks.
9. Termination
9.1. If one party is in material default of its obligations under this
Agreement, the other party may give notice in writing to the defaulting party
requiring the defaulting party to remedy the default within 30 days. If the
defaulting party fails to remedy the default within 30 days, the other party may
terminate this Agreement by notice in writing to the defaulting party effective
on the date of delivery of the written notice in accordance with this Agreement.
9.2. If Licensee files a petition under any federal or state bankruptcy
or insolvency law seeking reorganization, arrangement or any other relief
thereunder, or a petition is filed against Licensee under any federal or state
bankruptcy or insolvency law, or Licensee makes an assignment for the benefit of
creditors or seeks or consents to the appointment of a receiver, liquidator or
trustee,
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<PAGE>
or a receiver, liquidator or trustee is appointed for Licensee or its property,
or Licensee otherwise demonstrates an inability to pay its debts as they become
due, then this Agreement shall terminate automatically.
10. Consequences of Termination
10.1. Upon termination of this Agreement, Licensee shall:
(a) immediately cease all use of the Trademarks and
thereafter shall not sell any products bearing any of
the Trademarks; and
(b) immediately cease use of the Promotional and
Advertising Material which is in Licensee's
possession, power or control.
11. Disclosure of Confidential Information
11.1. The parties agree that they shall not, directly or indirectly, at
any time either during the continuance of this Agreement or at any time
following the termination hereof, disclose or use any Confidential Information
which they acquire or learn by reason of this Agreement.
11.2. The parties acknowledge that a breach of this Section of this
Agreement by any party may cause irreparable harm and in the event of such a
breach, the nondefaulting party may seek immediate equitable and other relief
from a court of competent jurisdiction upon proof of such breach.
12. Amendments and Waivers
The parties may mutually amend any provision of this Agreement. No
amendment of any provision of this Agreement shall be valid unless the same
shall be in writing and signed by the parties. No waiver by any party of any
default, misrepresentation or breach of warranty or covenant hereunder shall,
unless expressly so provided therein, be deemed to extend to any prior or
subsequent default, misrepresentation or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of any prior or
subsequent occurrence.
13. Headings
The section headings contained in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation
of this Agreement.
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<PAGE>
14. Governing Law
This Agreement shall be governed by and construed in accordance with
the domestic laws of the State of Illinois without giving effect to any choice
or conflict of law provision or rule (whether of the State of Illinois or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Illinois.
15. Notices
All notices, requests, demands, claims and other communications
hereunder shall be in writing. Any notice, request, demand, claim or other
communication hereunder shall be sent by registered or certified mail, return
receipt requested, postage prepaid and addressed to the intended recipient as
set forth below:
If to Licensor:
Agrilink Foods, Inc.
90 Linden Place
Rochester, NY 14625
Attn: Mr. Dennis M. Mullen, Chief Executive Officer
With a copy (which shall not constitute notice to Licensor) to:
Harris Beach & Wilcox, LLP
130 East Main Street
Rochester, NY 14604
Attn: David M. Mehalick, Esq.
If to Licensee:
Dean Foods Company
3600 N. River Road
Franklin Park, IL 60131-2185
Attention: President
With a copy (which shall not constitute notice to Licensee) to:
Kirkland & Ellis
200 E. Randolph Drive
Chicago, IL 60601
Attention: Brian D. Hogan, Esq.
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<PAGE>
or by any other means (including personal delivery, expedited courier, messenger
service, telecopy, telex, ordinary mail or electronic mail). No such notice,
request, demand, claim or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
party may change the address to which notices, requests, demands, claims and
other communications to it hereunder are to be delivered by giving the other
party notice in the manner herein set forth.
16. Independent Contractors
The relationship between the parties is that of independent
contractors. Nothing contained in this Agreement shall be deemed to create a
partnership, association, joint venture or agency between the parties.
17. Extended Meanings
The use of the singular in this Agreement shall include the plural and
vice versa.
18. Entire Agreement
This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes any prior
understandings, agreements or representations by or between the parties, written
or oral, to the extent they relate in any way to such subject matter.
19. Other Limitations
Notwithstanding anything to the contrary contained in this Agreement,
Licensor shall be excused from its obligations under Section 2 of this Agreement
to the extent that there is any infirmity in any of the Trademarks or its
respective registration listed on Schedule A attached hereto as of the date of
this Agreement or the use of any of the Trademarks by Licensee as of the date of
this Agreement or thereafter infringes the rights of any third party.
20. Severability
Any term or provision of this Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall not affect the validity
or enforceability of the remaining terms and provisions hereof or the validity
or enforceability of the offending term or provision in any other situation or
in any other jurisdiction.
21. Assignment
Either party may assign this Agreement in connection with the transfer
or sale of all or substantially all of its business to which the Trademarks
relate, with the prior written consent of the other party, or in connection with
the merger or consolidation of that party with or into another
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<PAGE>
entity, without the prior written consent of the other party. In addition,
Licensee may assign this Agreement, or sublicense any of its rights under this
Agreement, to any of its Affiliates, and shall promptly thereafter notify the
Licensor of any such assignment. This Agreement shall be binding upon any
permitted assignee or successor of either party and any permitted sublicensee of
Licensee. No assignment by either party or sublicense by Licensee shall relieve
the assignor or sublicensor from its obligations hereunder.
22. Counterparts
This Agreement may be executed in counterparts, each of which shall be
deemed an original but which together shall constitute one and the same
instrument.
* * * *
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
AGRILINK FOODS, INC.
By: _____________________________________
Title: __________________________________
DEAN FOODS COMPANY
By: _____________________________________
Title: __________________________________
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<PAGE>
SCHEDULE A
TRADEMARKS
<TABLE>
<CAPTION>
MARK REGISTRATION NO.
- ---- ----------------
<S> <C>
THANK YOU 384,355
THANK YOU 592,509
THANK YOU 746,304
THANK YOU 749,255
THANK YOU 831,933
THANK YOU 32739
THANK YOU 300126
GLOBE 65,552
</TABLE>
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EXHIBIT B
TRANSITION SERVICES AGREEMENT
SEE ATTACHED.
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EXHIBIT B
TRANSITION SERVICES AGREEMENT
THIS TRANSITION SERVICES AGREEMENT (this "Agreement"), is dated as of
the __ day of __________, 1998, by and between AGRILINK FOODS, INC.("Seller")
and DEAN FOODS COMPANY ("Dean").
W I T N E S S E T H
WHEREAS, pursuant to an Asset Transfer Agreement, dated July 24, 1998
(the "Transfer Agreement"), by and among Seller and Dean, Seller has sold,
transferred, assigned, conveyed and delivered to Dean certain assets related to
its Aseptic business; and
WHEREAS, in connection therewith, Seller and Dean desire that Seller
provide Dean with certain transition services as set forth herein;
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt of which is hereby acknowledged, Seller and
Dean agree as follows:
1. Services.
a. Seller agrees to provide to Dean during the Transition Period (as
hereinafter defined) or for such longer period as set forth in Exhibit A, the
services set forth on Exhibit A, in the manner and at a relative level of
service consistent with that provided by Seller immediately preceding the date
hereof. Each of such services will be provided at no charge.
b. Services under this Agreement shall only be supplied in relation
to the Business (as defined in the Transfer Agreement) and not to Dean in
connection with any of the other businesses of Dean or its affiliates.
2. Transition Period.
The "Transition Period" shall commence on the date hereof and shall
continue (unless sooner terminated by Dean by written notice to Seller) until
ninety (90) days after the date hereof.
<PAGE>
<PAGE>
3. Assignment.
This Agreement shall not be assignable in whole or in part by either
party hereto without the prior written consent of the other party; provided
that upon any assignment the assignor will remain jointly and severally liable
with the assignee for performance of all assigned obligations.
4. Confidentiality.
(a) Seller shall and shall cause each of its affiliates and each of
their officers, directors and employees to hold all information relating to the
business of Dean disclosed to it by reason of this Agreement confidential and
not disclose any of such information to any party unless legally compelled 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, and, if practicable, shall
have afforded Dean the opportunity to obtain an appropriate protective order, or
other satisfactory assurance of confidential treatment, for the information
required to be so disclosed.
(b) Dean shall and shall cause each of its affiliates and each of
their officers, directors and employees to hold all information relating to the
business of Seller, other than the "Business" as described in the Purchase
Agreement, disclosed to its by reason of this Agreement confidential and not
disclose any of such information to any party unless legally compelled 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, and, if practicable, shall
have afforded Seller the opportunity to obtain an appropriate protective order,
or other satisfactory assurance of confidential treatment, for the information
required to be so disclosed.
5. Governing Law.
This Agreement shall be governed by and construed in accordance
with the laws of the State Illinois without reference to the choice of law
principles thereof.
6. 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.
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7. Notices.
Unless otherwise indicated herein, all notices, requests, demands or
other communications to the respective parties hereto shall be deemed to have
been given or made when deposited in the mails, registered or certified mail,
return receipt requested, postage prepaid, or by means of overnight delivery
service when delivered to such service address or by facsimile to the
respective party at the following address:
To Seller: Agrilink Foods, Inc.
90 Linden Place
Rochester, NY 14625
Attn: Dennis M. Mullen
Chief Executive Officer
To Dean: Dean Foods Company
3600 N. River Road
Franklin Park, IL 60131
Attention: President
Fax No.: (847) 233-5501
8. Force Majeure.
If Seller is 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, lockout or other labor trouble, riot, war, rebellion, accident or
other acts of God, then upon written notice to the other party, the requirements
of this Agreement shall be suspended during the pendency of such disability.
9. 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 rights. If any provision of this Agreement is held
ineffective for any reason, the other provisions shall remain effective.
10. Seller's Costs; Expenses
Seller agrees to furnish the services described in Exhibit A on the
terms and conditions set forth therein, free of charge to Dean, using Seller's
existing personnel, resources and facilities. To the extent that Seller is
required to incur costs with unaffiliated third parties, or expenses for travel,
meals and lodging, in respect of furnishing such services, then Dean agrees to
promptly reimburse Seller upon written request for all such costs and expenses
reasonably and necessarily incurred.
3
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<PAGE>
IN WITNESS WHEREOF, the parties have signed this Transition Services
Agreement on the date first set forth above.
AGRILINK FOODS, INC. DEAN FOODS COMPANY
By: ______________________________ By: _____________________________
Its: ______________________________ Its: _____________________________
4
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EXHIBIT A
to
TRANSITION SERVICES AGREEMENT
A. SALES
1. Seller will provide Buyer a list of commitments, promotions, rebates
and programs made by Seller to customers as of the Closing Date.
2. Seller will provide headquarters sales service including broker
communication, field communication, and Buyer communication.
3. Buyer will maintain Seller's brokers through the Transition Period.
4. Buyer will continue to use Seller's UPC Codes through the Transition
Period. Buyer will permanently cease from using any Seller UPC Codes
or any packaging using Seller UPC Codes as soon as practicable
following the Transition Period.
5. Seller will continue consulting services for sales and trade issues
during the Transition Period and for ninety (90) days after the
Transition Period expires.
B. ORDER ENTRY/CUSTOMER SERVICE
1. Seller will perform all order entry functions for Buyer at Seller's
Rochester, New York facility consistent with Seller's current
practice, including "flat file" transmission to GATX in Coloma,
Michigan.
2. Seller will promptly refer all customer orders to Buyer for one
hundred eighty (180) days after the Transition Period.
3. Seller will promptly refer all customer inquiries and complaints to
Buyer during Transition Period for one hundred eighty (180) days after
the Transition Period.
C. ADMINISTRATION
1. Seller will provide the following information to Buyer during the
Transition Period:
a. Daily Sales/Orders Report
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b. Receivable aging and customer payment history as currently
available.
c. Monthly Reports
-Consistent with prior practices and sufficient for Dean to
record sales activity in the General Ledger
d. Within thirty (30) days after the Closing
-Twelve (12) month sale history by customer/item/month/
ship-to location
e. At conclusion of Transition Period
-Open account receivable balances by customer/invoice
2. Seller will invoice all orders to customers, process all customer
deductions, perform all credit and collection responsibilities and
provide all information necessary for Dean to make all broker
payments.
3. Seller will process freight payments in a manner consistent with
existing procedures through GATX.
4. Seller will provide support relating to cost accounting and general
ledger processes within 30 days of closing.
D. MARKETING
1. Seller will provide all available packaging and promotion files
including camera-ready artwork and R&D files containing all formulas,
procedures and market research.
2. Seller will provide support to Buyer in connection with all necessary
packaging and UPC changes.
E. RESEARCH
1. Seller will provide support in connection with the transfer of
formulas, procedures, ingredient and Q.A. Specifications, including
on-going research for packaging, product and market innovations.
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F. LOGISTICS
1. Seller will ensure logistics services pursuant to the Logistics
Services Agreement ("Agreement") dated April 1, 1998 between GATX
Logistics, Inc. ("GATX") and Seller are provided to Dean with respect
to the Aseptic business on a basis and cost currently provided to
Seller under the terms of the Agreement for the Transition Period and
for a period of up to 12 months from the date hereof, absent a
separate logistics agreement between Dean and GATX.
G. CASH SETTLEMENT
1. Seller will deliver to Buyer a cash settlement worksheet twenty (20)
days after the end of each month during the Transition Period
detailing the amounts billed and collected on the behalf of Buyer.
Seller will pay Buyer such collected amounts within ten (10) business
days of the date the cash settlement worksheet is mailed to Buyer.
7
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EXHIBIT C
TRANSFERRED EMPLOYEE SEVERANCE PAY AND BENEFITS
Continued Employee Severance Pay and Benefits
1. Entitlement to Severance Benefits. An Employee shall be entitled to
the Benefits set forth in Section 2 below (a) upon any involuntary termination
of his or her employment with the Transferee subsequent to the Closing Date,
unless such termination is due to his or her death or is a termination by
Transferee for Cause or Disability, or (b) upon any voluntary termination of his
or her employment with Transferee subsequent to the Closing Date (other than
voluntary retirement) that is for Good Reason; provided in either case that the
termination occurs within one year after the Closing Date. No employee of the
Aseptic Business who is offered employment with the Transferee as provided in
the Agreement but who refuses such offer shall be entitled to any benefit
hereunder. The termination of employment with the Transferor as part of this
transaction shall not entitle any person to any benefit hereunder.
2. Amount of Severance Benefits. The Benefits payable to each Employee
under the circumstances set forth in Section 1 shall be equal to the following:
an amount equal to 1.5 times Weekly Compensation times the number of completed
years of service with the Transferor (and related companies) and its
predecessors as of the date of termination, which amount shall be payable in
cash in equal monthly installments over the 24 month period beginning in the
first month immediately following such termination.
In addition to the foregoing, under the circumstances set forth in
Section 1, the Transferee will also pay in cash to each Employee who immediately
prior to the Closing Date is a participant in any of the Transferor's Incentive
Plans an amount equal to (a) the pro rata portion (based on days elapsed since
the next preceding June 27) of the target bonus for such Employee under such
Transferor's Incentive Plan in which such Employee participates at the time of
such termination or (b) if such termination occurs on or prior to June 26, 1999,
and if such amount is greater than the amount described in (a), the amount
accrued for the 1999 fiscal year of the Transferor under such Transferor's
Incentive Plan as of the Closing Date with respect to such Employee, which
amount shall be payable promptly following June 26, 1999; provided that if the
employment of any such Employee is terminated prior to June 26, 1999 for
any reason other than by the Transferee for Cause, such bonus payment shall
be made immediately following such termination.
3. Voluntary Termination for Good Reason. Voluntary termination by the
Employee for Good Reason means termination due to the occurrence of one or more
of the following events:
(a) a material adverse change in the Employee's duties or job
responsibilities without the Employee's express written
consent;
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(b) a reduction in the Employee's base salary or target
incentive compensation without the Employee's express
written consent; or
(c) a material reduction, in the aggregate, in the kind or level
of employee benefits or fringe benefits to which the
Employee was entitled immediately prior to the Closing Date,
provided that the substitution of a nonqualified plan or
arrangement for a qualified plan or arrangement in and of
itself shall not be deemed to involve a change in benefits;
or
(d) the Transferee requiring the Employee to relocate the
Employee's office to a place more than fifty miles from its
present location, without the Employee's express written
consent.
4. Definitions.
"Cause" means with respect to an Employee (i) the Employee's conviction
of a felony or a crime involving moral turpitude; (ii) the Employee's conviction
of a fraud; (iii) the Employee's commission of any act involving dishonesty or
disloyalty with respect to the Transferee (or any related entity); (iv)
intentional conduct by the Employee tending to bring the Transferee (or any
related entity) into substantial public disgrace or disrepute; (v) the
Employee's gross negligence or willful misconduct with respect to the Transferee
(or any related entity); or (vi) the Employee's abandonment of employment with
the Transferee (or any related entity) other than as a result of death or
Disability.
"Compensation" means the Employee's base annual salary as of the
Closing Date, or as of the date of termination, if greater, plus the amount of
the targeted incentive compensation bonus that would be payable for the year in
which the termination occurs under any such incentive plan in which the Employee
participates. "Weekly Compensation" is determined by dividing Compensation by
52.
"Disability" means termination under the circumstances set forth in
the applicable disability policies in effect immediately prior to the Closing
Date.
"Employee" means each Transferred Employee other than any Transferred
Employee covered by a collective bargaining agreement.
"Transferor's Incentive Plans" means the Transferor's Management
Incentive Plan, Excellence in Performance Rewards Program and arrangement for
incentive contributions to the Transferor's Retirement Savings and Incentive
Plan.
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