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EXHIBIT 4.7
________ SHARES OF COMMON STOCK
OF
EINSTEIN/NOAH BAGEL CORP.
CONCURRENT OFFERING PURCHASE AGREEMENT
DATED NOVEMBER ___, 1996
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CONCURRENT OFFERING PURCHASE AGREEMENT
THIS AGREEMENT is made as of November __, 1996, between Einstein/Noah
Bagel Corp., a Delaware corporation (the "Company"), and Boston Chicken, Inc., a
Delaware corporation (the "Purchaser"). Except as otherwise indicated herein,
capitalized terms used herein are defined in Section 7 hereof.
R E C I T A L S:
WHEREAS, the Company is concurrently offering shares of its common
stock, $.01 par value per share ("Common Stock"), in an underwritten public
offering (the "Underwritten Public Offering"); and
WHEREAS, the Company desires to sell to the Purchaser and the Purchaser
desires to purchase from the Company, concurrently with, and subject to, the
closing of the Underwritten Public Offering, an aggregate of ________ shares of
Common Stock (the "Shares"), for a purchase price per Share equal to $______,
the price per share to be paid by the public in the Underwritten Public
Offering, net of underwriting discount (the "Price Per Share"), upon the terms
and conditions hereinafter set forth; and
WHEREAS, to facilitate the offering and sale of the Shares to the
Purchaser (the "Concurrent Offering" and together with the Underwritten Public
Offering, the "Offerings" ), the Company has registered the Shares under the
Securities Act of 1933, as amended.
NOW, THEREFORE, the parties hereto agree as follows:
1. Purchase and Sale of Shares. Subject to the terms and conditions set
forth herein, the Company hereby agrees to issue and sell to the Purchaser, and
the Purchaser hereby agrees to purchase from the Company at the Closing (as
hereinafter defined), the Shares for an aggregate purchase price equal to the
Price Per Share multiplied by the number of Shares.
2. The Closing of the Purchase and Sale of Shares.
A. Authorization. On or before the Closing, the Company will
have authorized the issuance and sale to the Purchaser of the Shares.
B. Time and Place of Closing. The closing of the purchase and
sale of the Shares (the "Closing") will take place at the offices of Xxxx, Xxxx
& Xxxxx, 00 X. Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, on the date of, and subject to
the concurrent closing of, the sale of shares of Common Stock in the
Underwritten Public Offering (the "Closing Date"). At the Closing, the Company
will deliver to the Purchaser a stock certificate or stock certificates (in such
denominations requested by Purchaser at least three business days prior to the
Closing) evidencing the Shares to be purchased by the Purchaser, registered in
the Purchaser's or its nominee's name, upon payment of the purchase price
thereof by wire transfer of immediately available funds to the Company's account
at Bank of America Illinois, Chicago, Illinois.
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3. Conditions of the Purchaser's Obligation at the Closing. The obligation
of the Purchaser to purchase and pay for the Shares at the Closing is subject to
the satisfaction (or waiver by the Purchaser) as of the Closing of the following
conditions:
A. Closing of the Underwritten Public Offering. The Underwritten Public
Offering shall close concurrently with the Concurrent Offering, and such closing
shall have occurred on or before the end of the fifteenth business day after the
date hereof.
B. Representations and Agreements; No Material Adverse Change. At the
Closing Date, (i) the representations and warranties in Section 5 hereof shall
be true and correct with the same force and effect as though expressly made at
and as of Closing Date; (ii) the Company shall have complied with all agreements
and satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to Closing Date; and (iii) there shall not have been, since the date
hereof, any material adverse change in the condition, financial or otherwise, or
in the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business.
C. Blue Sky Clearances. The Company shall have timely made all filings
and taken all other necessary action under applicable state securities laws to
permit the consummation of the Concurrent Offering contemplated hereby.
D. Closing Documents. The Company shall have delivered to the Purchaser
all of the following documents:
(i) an Officer's Certificate, dated the date of the Closing,
stating that the conditions specified in Sections 3A, 3B and 3C,
inclusive, have been fully satisfied;
(ii) certified copies of the resolutions duly adopted by the
Company's board of directors and, if required, by the Company's
stockholders authorizing the execution, delivery, and performance of
this Agreement, and each of the other agreements contemplated hereby,
and the issuance and sale of the Shares;
(iii) certified copies of the Company's restated certificate
of incorporation and amended and restated bylaws, each as in effect at
the Closing;
(iv) copies of all third party and governmental consents,
approvals, and filings obtained in connection with the transactions
hereunder (including, without limitation, all blue sky law filings and
waivers of all preemptive rights and rights of first refusal), if any;
and
(v) copies of the Prospectus (as defined in Section 7 hereof)
and any amendments or supplements thereto and the Registration
Statement (as defined in Section 7 hereof) and any amendments thereto,
as filed by the Company with the Securities and Exchange Commission in
connection with the Offerings.
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E. Proceedings. All corporate and other proceedings taken or
required to be taken in connection with the transactions contemplated hereby to
be consummated at or prior to the Closing shall have been taken and all
documents incident thereto shall be satisfactory in form and substance to
counsel to the Purchaser.
F. Opinion of Company's Counsel. The Purchaser shall have
received from Xxxx, Xxxx & Xxxxx, counsel for the Company, an executed copy of
its opinion to the Purchaser, dated the date of the Closing, in form and
substance reasonably satisfactory to the Purchaser.
G. Receipt of Consents. The Purchaser shall have received the
written consent of any persons or entities whose consent is contractually
required to consummate the transactions contemplated hereby.
H. Termination of Agreement.
(i) If any condition specified in this Section 3 shall not
have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Purchaser by notice to the Company
at any time at or prior to the Closing.
(ii) Notwithstanding anything herein to the contrary, the
Purchaser may terminate this Agreement, by written notice to the
Company, at any time at or prior to Closing Date (a) if there has been,
since the time of execution of this Agreement or since the respective
dates as of which information is given in the Prospectus, any material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, or (b) the underwriters in the
Underwritten Public Offering or the representatives of such
underwriters have terminated the Purchase Agreement relating to the
Underwritten Public Offering pursuant to Section 8 of such Agreement or
otherwise.
(iii) If this Agreement is terminated pursuant to this
Section , such termination shall be without liability of any party to
any other party; provided that Section 10 shall survive such
termination and remain in full force and effect.
4. Current Public Information. Until such time as the Purchaser shall,
in the opinion of its legal counsel, be entitled to transfer the Shares without
compliance with the registration requirements of the Securities Act of 1933, as
amended (the "1933 Act"), in reliance on the exemption contained in Section 4(1)
thereof, the Company shall at all times file all reports required to be filed by
it under the 1933 Act, the rules and regulations adopted by the Securities and
Exchange Commission (the "Commission") thereunder (the "1933 Act Regulations")
and the Securities Exchange Act of 1934, as amended, and the rules and
regulations adopted by the Commission thereunder, and shall take such further
action to provide current public information, in each case to the extent
required to enable the Purchaser to sell the Shares pursuant to Rule 144 adopted
by the Commission under the 1933 Act (as such rule may be amended from time to
time) or any similar rule or regulation hereafter adopted by the Commission.
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5. Representations and Warranties by the Company. The Company
represents and warrants to the Purchaser as of the date hereof, and agrees with
the Purchaser, as follows:
(i) Compliance with Registration Requirements. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information
has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the date hereof, the Registration Statement,
the Rule 462(b) Registration Statement and any such post-effective
amendment complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and did not
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading. Neither the Prospectus nor
any amendments or supplements thereto, at the time the Prospectus or
any such amendment or supplement was issued and at the Closing Date,
included or will include an untrue statement of a material fact or
omitted or will omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. The representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by the Purchaser expressly for use in the
Registration Statement or Prospectus.
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and, if applicable, each preliminary prospectus and the
Prospectus was identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
(ii) Independent Accountants. The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iii) Financial Statements. The financial statements included
in the Registration Statement and the Prospectus, together with the
related schedules and
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notes, present fairly, where applicable, the financial position of the
respective entity to which such financial statements relate (including,
where applicable, the consolidated subsidiaries of such entity) at the
dates indicated and, where applicable, the statement of operations,
stockholders' equity and cash flows of such entity (including, where
applicable, the consolidated subsidiaries of such entity) for the
periods specified; said financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included in the Registration Statement
present fairly in accordance with GAAP the information required to be
stated therein. The pro forma financial statements and the related
notes thereto included in the Registration Statement and the Prospectus
present fairly the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to
pro forma financial statements and have been properly compiled on the
bases described therein.
(iv) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business
(a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than
those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one
enterprise, and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(v) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
(vi) Good Standing of Subsidiaries. Each subsidiary of the
Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation to
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transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect; all of the issued and outstanding capital
stock of each such subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity, other
than the pledge of such stock pursuant to the Company's secured
revolving bank credit agreement dated May 17, 1996, as amended, with
Bank of America Illinois, as agent for the lenders named therein (the
"Credit Agreement"). The only subsidiaries of the Company are the
subsidiaries listed on Exhibit 21.1 to the Registration Statement.
(vii) Capitalization. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus in the
column entitled "Actual" under the caption "Capitalization" (except for
subsequent issuances, if any, in the Underwritten Public Offering and
pursuant to this Agreement, or pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectus, or pursuant to
the exercise of convertible securities or options referred to in the
Prospectus). The shares of issued and outstanding capital stock have
been duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar
rights of any security holder of the Company.
(viii) Authorization of Agreement. This Agreement has been
duly executed and delivered by the Company.
(ix) Authorization and Description of Securities. The Shares
have been duly authorized for issuance and sale to the Purchaser
pursuant to this Agreement and, when issued and delivered by the
Company pursuant to this Agreement against payment of the consideration
set forth herein, will be validly issued and fully paid and
non-assessable; the Common Stock conforms to all statements relating
thereto contained in the Prospectus; and the issuance of the Shares is
not subject to preemptive or other similar rights of any security
holder of the Company.
(x) Absence of Defaults and Conflicts. Neither the Company nor
any of its subsidiaries is in violation of its charter or by-laws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other agreement
or instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound, or to which any of
the property or assets of the Company or any subsidiary is subject
(collectively, "Agreements and Instruments") except for such defaults
that would
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not result in a Material Adverse Effect; and the execution, delivery
and performance of this Agreement and the consummation of the
transactions contemplated herein and compliance by the Company with its
obligations hereunder have been duly authorized by all necessary
corporate action and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
subsidiary pursuant to, the Agreements and Instruments (except for such
conflicts, breaches, defaults or Repayment Events or liens, charges or
encumbrances that would not result in a Material Adverse Effect), nor
will such action result in any violation of the provisions of the
charter or by-laws of the Company or any subsidiary or any applicable
law, statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any subsidiary or any of their
assets, properties or operations. As used herein, a "Repayment Event"
means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Company or
any subsidiary.
(xi) Absence of Labor Dispute. Except as disclosed in the
Prospectus, no labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, has been
threatened.
(xii) Absence of Proceedings. Except as disclosed in the
Prospectus, there is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or
body, domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company or any
subsidiary, which is required to be disclosed in the Prospectus, or
which the Company reasonably believes is likely to result in a Material
Adverse Effect, or which the Company reasonably believes is likely to
materially and adversely affect the properties or assets thereof or the
consummation of the transactions contemplated in this Agreement or the
performance by the Company of its obligations hereunder; the aggregate
of all pending legal or governmental proceedings to which the Company
or any subsidiary is a party or of which any of their respective
property or assets is the subject which are not described in the
Prospectus, including ordinary routine litigation incidental to the
business, are, considered in the aggregate, not likely to result in a
Material Adverse Effect.
(xiii) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits thereto which
have not been so described and filed as required.
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(xiv) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or reasonably believe that they can
acquire on reasonable terms, the patents, patent rights, licenses,
invention, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") currently
employed by them in connection with the business now operated by them,
and, except as disclosed in the Prospectus, neither the Company nor any
of its subsidiaries has received any notice or, to the best of their
respective knowledge, is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any
Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to carry on the
business of the Company or any of its subsidiaries, and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
(xv) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance or
sale of the Shares hereunder or the consummation of the transactions
contemplated by this Agreement, except such as have been already
obtained or as may be required under state securities laws.
(xvi) Possession of Licenses and Permits. The Company and its
subsidiaries possess such certificates, permits, licenses, approvals,
consents and other authorizations (collectively, "Governmental
Licenses") issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by them, except where the failure to so possess such
Government Licenses would not, singly or in the aggregate, have a
Material Adverse Effect; the Company and its subsidiaries are in
compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly or in
the aggregate, have a Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and effect, except when the
invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(xvii) Compliance with Cuba Act. The Company has complied
with, and is and will be in compliance with, the provisions of that
certain Florida act
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relating to disclosure of doing business with Cuba, codified as Section
517,075 of the Florida statutes, and the rules and regulations
thereunder or is exempt therefrom.
(xviii) Registration Rights. There are no persons with
registration or other similar rights to have any securities registered
pursuant to the Registration Statement or otherwise registered by the
Company under the 1933 Act, except as described in the Registration
Statement.
(xix) Investment Company Act. The Company is not, and upon the
issuance and sale of the Shares as herein contemplated and the sale of
shares of Common Stock in the Underwritten Public Offering and the
application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" as such term is defined
in the Investment Company Act of 1940, as amended (the "1940 Act").
6. Covenants of Company. The Company covenants with the Purchaser to
take the following actions prior to the Closing:
(i) Compliance with Securities Regulations and Commission
Requests. The Company will comply with the requirements of Rule 430A
under the 1993 Act, as applicable, and will notify the Purchaser
immediately, and confirm the notice in writing (which confirmation
shall include copies of all relevant documents relating to the subject
matter of such notice), (A) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (B) of the
receipt of any comments from the Commission, (C) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional
information, and (D) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of
any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the shares of
Common Stock being offered and sold in the Offerings under any
applicable state securities laws, or of the initiation or threatening
of any proceedings for any of such purposes. The Company will promptly
effect the filings necessary pursuant to Rule 424(b) and will take such
steps as it deems necessary to ascertain promptly whether the form of
prospectus transmitted for filing under Rule 424(b) was received for
filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order
is issued, to obtain the lifting thereof at the earliest possible
moment.
(ii) Listing. The Company will file all documents and notices
required by the Nasdaq National Market to permit the quotation of the
Shares thereon.
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7. Definitions. For the purpose of this Agreement, the following terms
have the meanings set forth below:
"Officer's Certificate" means a certificate signed by the
Company's chairman, vice chairman, president, chief executive officer, chief
financial officer, or chief operating officer, stating that (i) the officer
signing such certificate has made or has caused to be made such investigations
as are necessary in order to permit him to verify the accuracy of the
information set forth in such certificate and (ii) to the best of such officer's
knowledge, such certificate, taken as a whole with the other documents delivered
in connection with this Agreement, does not misstate any material fact and does
not omit to state any material fact necessary to make the certificate not
misleading.
"Prospectus" means the final prospectus in the form first
furnished to the Purchaser in connection with the Concurrent Offering.
"Registration Statement" means the registration statement on
Form S-1 filed with the Commission under the 1933 Act relating to the Offerings,
including the exhibits thereto and schedules, if any, at the time it became
effective and including any information deemed part of such registration
statement at the time it became effective pursuant to paragraph (b) of Rule 430A
under the 1933 Act; and if any Rule 462(b) Registration Statement shall have
been filed with the Commission relating to the Offerings, the term "Registration
Statement" shall include such Rule 462(b) Registration Statement.
"Rule 462(b) Registration Statement" means any registration
statement filed pursuant to Rule 462(b) under the 1933 Act.
8. Registration Rights. The Company and the Purchaser are parties to a
Registration Agreement dated as of August 1, 1996 (the "Registration
Agreement"). The Shares to be purchased by Purchaser pursuant hereto shall be
deemed to be Registrable Securities (as such term is defined in the Registration
Agreement) for all purposes of the Registration Agreement to the same extent as
if the Shares had been acquired by the Purchaser pursuant to the Concurrent
Private Placement Agreement dated as of August 1, 1996 between the Company and
the Purchaser.
9. Purchaser's Representation. The Purchaser hereby represents to the
Company that the Purchaser is acquiring the Shares for its own account and not
with a view to any distribution thereof in violation of the federal securities
laws.
10. Survival of Representations and Warranties. All representations and
warranties contained herein or made in writing by any party in connection
herewith will survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, regardless of any
investigation made by the Purchaser or on its behalf, until 30 days after
audited financial statements for the Company's fiscal year 1997 are delivered to
the Purchaser. Nothing herein shall imply any duty of the Company after the
execution and delivery of this Agreement to update any representations or
warranties made herein.
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11. Successors and Assigns. Except as otherwise expressly provided
herein, all covenants and agreements contained in this Agreement by or on behalf
of any of the parties hereto will bind the respective successors and assigns of
the parties hereto whether so expressed or not. References herein to Purchaser
shall be deemed to include such assignees. A sale or other transfer of Shares
shall not, however, of itself without express assignment of rights or
obligations hereunder, be deemed an assignment of any such rights or
obligations.
12. Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by, or
invalid under, applicable law, such provision will be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
this Agreement.
13. Counterparts. This Agreement may be executed simultaneously in
counterparts, any one of which need not contain the signature of more than one
party, but all such counterparts taken together will constitute one and the same
Agreement.
14. Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
15. GOVERNING LAW. THE DELAWARE GENERAL CORPORATION LAW WILL GOVERN ALL
ISSUES CONCERNING THE RELATIVE RIGHTS OF THE COMPANY AND ITS STOCKHOLDERS. ALL
OTHER QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY AND INTERPRETATION OF THIS
AGREEMENT AND THE EXHIBITS AND SCHEDULES HERETO WILL BE GOVERNED BY THE INTERNAL
LAW, AND NOT THE LAW OF CONFLICTS, OF COLORADO.
16. Notices. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, one day after being sent to the recipient by reputable overnight
express courier service (charges prepaid) or by facsimile transmission, or three
business days after being mailed to the recipient by certified or registered
mail, return receipt requested and postage prepared. Such notices, demands and
other communications will be sent to the Purchaser as follows:
Boston Chicken, Inc.
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
and to the Company as follows:
Einstein/Noah Bagel Corp.
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxx, XX 00000
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Attention: General Counsel
Facsimile: (000) 000-0000
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written
EINSTEIN/NOAH BAGEL CORP.
By:_________________________________
Name:_______________________________
Title: ____________________________
BOSTON CHICKEN, INC.
By:_________________________________
Name:_______________________________
Title: ____________________________
