EXHIBIT 2.2
CLOSING AGREEMENT
THIS CLOSING AGREEMENT (this "Amendment") is made as of November 13,
2001, by and among General Xxxxx, Inc., a Delaware corporation ("General
Xxxxx"), The Pillsbury Company, a Delaware corporation ("Pillsbury" and,
together with General Xxxxx, the "Sellers" and each, a "Seller"), and
International Multifoods Corporation, a Delaware corporation ("Buyer").
Unless otherwise specified, capitalized terms herein shall have the meaning
ascribed to them in the Asset Sale Agreement (as herein defined).
WITNESSETH:
WHEREAS, Sellers and Buyer are the parties to that certain Amended
and Restated Asset Purchase and Sale Agreement, dated as of October 24, 2001
(the "Asset Sale Agreement").
WHEREAS, the parties to the Asset Sale Agreement desire to, among
other things, amend the Asset Sale Agreement as set forth in this Amendment.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained in this Amendment, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. AMENDMENT OF SECTION 2.9. The parties agree that Section 2.9 of
the Asset Sale Agreement is hereby replaced in its entirety with the version
of Section 2.9 set forth on EXHIBIT 1 attached hereto.
2. ADDITION OF SECTION 2.9A. The parties agree to add a new Section,
titled Section 2.9A, of the Asset Sale Agreement, which new Section 2.9A
shall read as set forth on EXHIBIT 2 attached hereto and shall be inserted
immediately after Section 2.9 and before Section 2.10 of the Asset Sale
Agreement.
3. AMENDMENT OF SECTION 7.12. The parties agree that that Section 7.12
of the Asset Sale Agreement is hereby replaced in its entirety with the
version of Section 7.12 set forth on EXHIBIT 3 attached hereto.
4. AMENDMENT OF SECTION 7.13. The parties agree that Section 7.13 of
the Asset Sale Agreement is hereby replaced in its entirety with the version
of Section 7.13 set forth on EXHIBIT 4 attached hereto.
5. DEFINITIONS OF CERTAIN OTHER BUSINESS INVENTORY. The parties
agree that the definition of each of "Farmhouse Inventory", "Xx Xxxx
Inventory", "Red Band Inventory", "Xxxxx Xxxx Inventory" and "Softasilk
Inventory" in Section 1.1 of the Asset Sale Agreement is hereby amended by
replacing the words "the Closing Date" with the words "the applicable Other
Business Inventory Transfer Date".
6. AMENDMENT OF STOCK DEFINITION. The parties agree that the
definition of "Stock" in Section 1.1 of the Asset Sale Agreement is hereby
amended to read in its entirety as
follows: " "Stock" shall mean all of the issued and outstanding shares of
Common Stock, par value $.01 per share, of Windmill."
7. AMENDMENT OF SECTION 3.2. The parties agree that the third
sentence of Section 3.2 of the Asset Sale Agreement is hereby amended to read
in its entirety as follows: "There is a total of 11,818 shares of Common
Stock of Windmill outstanding, constituting the only outstanding capital
stock of Windmill."
8. AMENDMENT TO XXXXXX XXXXX (PART II) TRADEMARK LICENSE AGREEMENT.
The parties agree that inserts set forth on EXHIBIT 5 attached hereto shall
be inserted into the Xxxxxx Xxxxx (Part II) Trademark License Agreement at
the places specified therein.
9. COVENANT REGARDING INTELLECTUAL PROPERTY. Sellers covenant that
they will use their reasonable best efforts after Closing to assist Buyer to
cause to be transferred to Buyer all right, title and interest in and to any
internet domain names relating to the Pet Milk Business, including those
created or used in connection with that certain Services Agreement dated as
of May 1, 1999, between Pillsbury and Xxxxxx-Xxxxx, Inc., and to
"Xxxxxxxxx.xxxx" and "Xxxxxxxxx.xxxx", and including any rights Sellers have
in or to such internet domain names; PROVIDED, that Sellers shall not be
obligated to incur any material expenses in connection with such efforts.
10. CLOSING DELIVERIES. The parties hereby waive delivery of the
following documents required to be delivered at or prior to the Closing
pursuant to the Asset Sale Agreement or a Collateral Agreement, as
applicable: (a) delivery of the Conversion Plan pursuant to Section 1.2.1 of
the Conversion Plan Agreement; PROVIDED, that such delivery shall occur as
promptly as practicable after Closing; (b) delivery of Buyer's forecast of
its estimated requirements for Products and Other Products pursuant to
ATTACHMENT B to the Co-Pack Agreement; PROVIDED, that such delivery shall
occur as promptly as practicable after Closing; (c) delivery of the secretary
certificates contemplated by Sections 8.1(d)(i) and 8.1(e)(i) of the Asset
Sale Agreement; (d) Sellers' delivery of (i) an updated Toledo Plant title
report, (ii) a survey of the Toledo Plant at least ten (10) days prior to the
Closing pursuant to Section 5.9 of the Asset Sale Agreement, to the extent
that Sellers' delivery of such title report and survey to Buyer on or about
November 8, 2001 occurred less than ten (10) days prior to the Closing, and
(iii) printed copies of the recipes referred to in Section 5.3(c) of the
Asset Sale Agreement, which recipes General Xxxxx shall provide Buyer with
access to at the Closing and which recipes General Xxxxx shall deliver in
electronic format as promptly as practicable after the Closing to Buyer as
reasonably acceptable to Buyer.
11. CLOSING CONDITIONS. The parties hereby waive the following
conditions set forth in Sections 8.2 and 8.3 of the Asset Sale Agreement: (a)
delivery of the Collateral Agreement described as a limited warranty deed for
the real property portions of the Toledo Plant pursuant to Section 8.2(c) of
the Asset Sale Agreement; and (b) delivery of properly executed resale
exemption certificates containing the requisite tax registration numbers with
respect to the states of Florida, Georgia, Hawaii, Illinois, Indiana,
Oklahoma, Pennsylvania and Texas pursuant to Section 8.3(d) of the Asset Sale
Agreement; PROVIDED, that after Closing Buyer shall promptly notify General
Xxxxx upon being issued the requisite tax registration numbers with respect
to such states and take such further action as may be reasonably required to
provide
-2-
Sellers with the benefits of properly executed resale exemption certificates
with respect to such states as contemplated by such Section 8.3(d).
12. NOTICES. All notices or other communications required or
permitted to be given hereunder shall be in writing and shall be delivered by
hand or sent by telecopy, or by postage prepaid, registered, certified or
express mail or by reputable overnight courier service and shall be deemed
given when delivered by hand or upon receipt of telecopy confirmation if sent
by facsimile, three days after mailing (one (1) Business Day in the case of
guaranteed overnight express mail or guaranteed overnight courier service),
as follows (or at such other address or to such other fax for a party as
shall be specified by like notice):
(a) If to Sellers: with a copy to:
General Xxxxx, Inc. Wachtell, Lipton, Xxxxx & Xxxx
Number One General Xxxxx Blvd. 00 Xxxx 00xx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Attn.: General Counsel Attn: Xxxxxx X. Xxxxxxxxx, Esq.
Fax: (000) 000-0000 Fax: (000) 000-0000
(b) if to Buyer: with a copy to:
International Multifoods Corporation Faegre & Xxxxxx LLP
000 Xxxxxxxx Xxxx, Xxxxx 000 2200 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000-0000 00 Xxxxx Xxxxxxx Xxxxxx
Attn: General Counsel Xxxxxxxxxxx, Xxxxxxxxx 00000
Fax: (000) 000-0000 Attn: Xxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
13. NOTICE OF BREACH. In the event of a material breach of this
Amendment by a party, the party claiming the breach shall give notice of such
breach to the other party, which party shall have thirty (30) calendar days
to cure such breach. In the event of such cure within such 30-day period,
such notice of breach shall be deemed rescinded. If, however, the breach is
not cured within such 30-day period, the party claiming the breach may then
pursue any and all remedies available to it under applicable law based on
such uncured breach, including, but not limited to, both equitable and
damages remedies, but excluding termination of this Amendment. In formulating
appropriate remedies commensurate with the nature and extent of any such
uncured breach, the court shall take into account, in addition to all other
pertinent factors, each party's inability to terminate this Amendment for
breach. Either party's failure to send a notice of breach or to pursue legal
remedies available to it shall not constitute or be construed as a waiver or
acquiescence, and each party expressly reserves the right to subsequently
pursue such remedies for the same or any other breach, either of the same or
different character.
14. ASSIGNMENT; SUCCESSORS AND ASSIGNS. Except as set forth below,
this Amendment and the rights and obligations hereunder shall not be assigned
or transferred in whole or in part by Buyer or either Seller without the
prior written consent of the other parties hereto. Buyer may assign or
delegate its rights, obligations or liabilities under this Amendment in whole
or in part to one or more Affiliates of Buyer or to the lender or lenders
providing to it
-3-
the financing to consummate the transactions contemplated by the Asset Sale
Agreement, in each case without either Seller's consent (provided that a
pledge of Buyer's rights, obligations or liabilities under this Amendment to
such lender or lenders shall not constitute an assignment hereunder until
such time as any such lender exercises its rights under the pledge agreement
or other applicable agreement or document); PROVIDED, HOWEVER, that in any
such event, Buyer shall remain fully liable for the fulfillment of all its
obligations hereunder. Any attempted assignment or delegation in
contravention hereof shall be null and void. This Amendment shall be binding
upon and inure to the benefit of the successors and assigns of the parties
hereto.
15. NO THIRD-PARTY BENEFICIARIES. Except for the FTC, this Amendment
is for the sole benefit of the parties hereto, and nothing herein express or
implied shall give or be construed to give to any Person or entity, other
than the parties hereto, any legal or equitable rights hereunder.
16. REMEDIES. Except as otherwise expressly provided herein, none of
the remedies set forth in this Amendment is intended to be exclusive, and
each party shall have all other remedies now or hereafter existing at law or
in equity or by statute or otherwise, and the election of any one or more
remedies shall not constitute a waiver of the right to pursue other available
remedies. Nothing contained herein shall be deemed to be a limitation on any
remedies that otherwise may exist or be available to any party under the
Asset Sale Agreement or any other Collateral Agreement.
17. INTERPRETATION; DEFINITIONS. The headings contained in this
Amendment are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Amendment. The terms defined in the
singular shall have a comparable meaning when used in the plural, and vice
versa. This Amendment shall be construed without regard to any presumption or
rule requiring construction or interpretation against the party drafting or
causing any instrument to be drafted. When a reference is made in this
Amendment to Sections, such reference shall be to an Article or Section of
this Amendment unless otherwise indicated. Whenever the words "include,"
"includes" or "including" are used in this Amendment, they shall be deemed to
be followed by the words "without limitation." The phrases "the date of this
Amendment," "the date hereof" and terms of similar import, unless the context
otherwise requires, shall be deemed to refer to the date set forth in the
first paragraph of this Amendment. The words "hereof," "hereby," "herein,"
"hereunder" and similar terms in this Amendment shall refer to this Amendment
as a whole and not to any particular Section in which such words appear.
18. AMENDMENTS. No amendment to this Amendment shall be effective
unless it shall be in writing and signed by each party hereto.
19. COUNTERPARTS. This Amendment and any amendments hereto may be
executed by facsimile and in one or more counterparts, all of which shall be
considered one and the same agreement, and shall become effective when one or
more such counterparts have been signed by each of the parties and delivered
to the other party.
20. SEVERABILITY. If any provision of this Amendment or the
application of any such provision to any Person or circumstance shall be held
invalid, illegal or unenforceable in
-4-
any respect by a court of competent jurisdiction, such invalidity, illegality
or unenforceability shall not affect any other provision hereof.
21. GOVERNING LAW. This Amendment shall be governed by and construed
in accordance with the laws of the State of Minnesota applicable to
agreements made and to be performed entirely within such State, without
regard to the choice of law principles of such State.
22. ACTIONS AND PROCEEDINGS. Seller and its Affiliates and Buyer
hereby irrevocably consent to the exclusive jurisdiction and venue of the
Courts of the State of Minnesota and the United States District Court for the
District of Minnesota in connection with any action or proceeding arising out
of this Amendment or any related transaction. Buyer irrevocably appoints
Buyer's General Counsel as its authorized agent upon whom process may be
served in any such action or proceeding instituted in any such court and
waives any objections to personal jurisdiction with respect thereto. Seller
and its Affiliates hereby appoint General Xxxxx' General Counsel as their
authorized agent upon whom process may be served in any such action or
proceeding instituted in any such court and waives any objections to personal
jurisdiction with respect thereto.
23. WAIVER. Except as otherwise provided in this Amendment, any
failure of either of the parties hereto to comply with any obligation,
covenant, agreement or condition herein may be waived by the party entitled
to the benefits thereof only by a written instrument signed by the party
granting such waiver, but such waiver or failure to insist upon strict
compliance with such obligation, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure. Any consent given by any party pursuant to this Amendment shall be
valid only if contained in a written consent signed by such party.
24. MUTUAL CONFIDENTIALITY COVENANTS. The provisions of Sections 5.6
and 6.1 of the Asset Sale Agreement govern the exchange of information
pursuant hereto and are incorporated herein by reference.
25. AUTHORITY. Neither of the parties hereto shall act or represent
or hold itself out as having authority to act as an agent or partner of the
other party, or in any way bind or commit the other party to any obligations.
Nothing contained in this Amendment shall be construed as creating a
partnership, joint venture, agency, trust or other association of any kind,
each party being individually responsible only for its obligations as set
forth in this Amendment.
26. ENTIRE AGREEMENT. This Amendment, the Asset Sale Agreement and
the Collateral Agreements contain the entire agreement and understanding
between the parties hereto with respect to the subject matter hereof and
supersede all prior agreements and understandings, whether written or oral,
relating to such subject matter.
27. SPECIFIC PERFORMANCE. Buyer and Seller hereby acknowledge,
recognize and agree that irreparable injury may result to the non-breaching
party and its business if the other party breached any provision of this
Amendment such that money damages alone would not be a sufficient remedy for
any such breach. Each party hereto therefore agrees that if it should engage,
or cause or permit any other Person to engage, in any act in violation of any
provision hereof, the other party shall be entitled, in addition to such
other remedies, damages and relief as may be available under this Amendment
or applicable law, to an injunction prohibiting the breaching party from
engaging in any such act or specifically enforcing this Amendment, as the
case may be.
-5-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered as of the date first written above.
GENERAL XXXXX, INC.
By: /S/ XXXXXX X. XXXXXX, XX.
-------------------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
THE PILLSBURY COMPANY
By: /S/ XXXXXX X. XXXXXX, XX.
-------------------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
INTERNATIONAL MULTIFOODS CORPORATION
By: /S/ XXXX X. XXXXXXX
-------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chairman of the Board, President and CEO
-6-
EXHIBIT 1
2.9 CLOSING INVENTORY STATEMENT.
(a) The target inventory of Sellers for purposes of this Agreement
is $51,500,000. On the Closing Date or within 10 days thereafter, Sellers
shall prepare and deliver to Buyer a statement (the "Closing Inventory
Statement") setting forth the type, value and location, as of the Closing
Date, of the Inventory and Pet Milk Inventory transferred to Buyer on the
Closing Date pursuant to Sections 2.1, 2.3(a) and 7.12, which statement shall
be derived from Sellers' inventory records maintained in the ordinary course
of business consistent with past practices, shall be prepared in a manner
consistent with the standards (the "Inventory Standards") set forth on
SCHEDULE 2.9(a) and shall identify which of the Inventory and Pet Milk
Inventory is Raw Material Inventory (as defined herein). Buyer shall provide
Sellers and their accountants full access to the books and records, to any
other information, including working papers of its accountants, and to any
employees of Buyer, in each case as may be reasonably necessary for Sellers
to respond to the Buyer's Objection (as defined herein) and to prepare
materials for presentation to the CPA Firm (as defined herein) in connection
with the matters contemplated by Section 2.9(c). "Raw Material Inventory"
shall mean, collectively, (x) all Inventory that is not finished goods
inventory and (y) all Pet Milk Inventory that is not finished goods
inventory. Notwithstanding anything to the contrary in this Agreement, Raw
Material Inventory shall be conveyed at cost to, and title shall pass to
Buyer after, the Closing as such cost is billed to Buyer pursuant to the
Transition Services Agreement.
(b) Buyer shall, within thirty (30) days after the delivery by
Sellers of the Closing Inventory Statement, complete its review thereof.
After delivery of the Closing Inventory Statement, Sellers shall provide
Buyer and its accountants full access to all books and records, to any other
information, including working papers of its accountants, and to any
employees of Seller, in each case used in the preparation of the Closing
Inventory Statement or as may otherwise be reasonably necessary for Buyer to
prepare the Buyer's Objection and to prepare materials for presentation to
the CPA Firm in connection with the matters contemplated by Section 2.9(c).
Subject to any adjustments made pursuant to Section 2.9A(e) hereof, the
Closing Inventory Statement shall be binding and conclusive upon, and deemed
accepted by, Buyer unless Buyer shall have notified Sellers in writing within
thirty (30) days after delivery of the Closing Inventory Statement of any
objection thereto (the "Buyer's Objection"). The Buyer's Objection shall set
forth a description of the basis of the Buyer's Objection and the adjustments
to the value of Inventory or Pet Milk Inventory, as applicable, reflected on
the Closing Inventory Statement that Buyer believes should be made. Any items
not disputed during the foregoing thirty (30) day period shall be deemed to
have been accepted by Buyer.
(c) If Sellers and Buyer are unable to resolve all of their disputes
with respect to the Closing Inventory Statement within thirty (30) days
following Sellers' receipt of the Buyer's Objection to such Closing Inventory
Statement pursuant to Section 2.9(b), they shall refer their remaining
differences to Ernst & Young or, if such firm declines to act or at such time
has a significant ongoing relationship with either Seller, Buyer or any of
their respective Affiliates, an internationally recognized firm of
independent public accountants as to which Sellers and Buyer mutually agree
(the "CPA Firm") for decision, which decision shall be made consistent with
the Inventory Standards within thirty (30) days and shall be final and
binding on
-7-
the parties, PROVIDED that the CPA Firm's determination as to any item set
forth in Buyer's Objection shall not be more beneficial to Sellers than the
determination of that item by Sellers in the Closing Inventory Statement or
more beneficial to Buyer than the determination of that item in Buyer's
Objection. Any expenses relating to the engagement of the CPA Firm shall be
shared equally by Sellers, on one hand, and Buyer, on the other hand. Sellers
and Buyer shall each bear the fees of their respective auditors incurred in
connection with the determination and review of the Closing Inventory
Statement.
(d) Subject to any adjustments made pursuant to Section 2.9A(e)
hereof, the Closing Inventory Statement shall become final and binding on the
parties upon the earliest of (i) if no Buyer's Objection has been given, the
expiration of the period within which Buyer must make its objection pursuant
to Section 2.9(b) hereof, (ii) agreement in writing by Sellers and Buyer that
the Closing Inventory Statement, together with any modifications thereto
agreed to by Sellers and Buyer, shall be final and binding and (iii) the date
on which the CPA Firm shall issue its written determination with respect to
any dispute relating to such Closing Inventory Statement. The Closing
Inventory Statement, as submitted by Sellers if no timely Buyer's Objection
has been given or as adjusted pursuant to any agreement between the parties
or as determined pursuant to the decision of the CPA Firm, in each case
pursuant to this Section 2.9, is herein referred to as the "Final Closing
Inventory Statement."
(e) Within ten (10) Business Days following issuance of the Final
Closing Inventory Statement, the net adjustment payment payable pursuant to
this Section 2.9(e) (the "Adjustment Payment") and interest thereon shall be
paid by wire transfer of immediately available funds to a bank account or
bank accounts designated in writing by Sellers or Buyer, as the case may be;
PROVIDED, HOWEVER, that if the Adjustment Payment shall be payable by Sellers
to Buyer, in lieu of payment, Sellers may elect to credit the Adjustment
Payment against the initial payments required to be made by Buyer under the
Co-Pack Agreement; and PROVIDED, FURTHER, that if the Adjustment Payment
shall be payable by Buyer to Sellers, in lieu of payment, Buyer may elect to
add such payment to the payments due to Seller under the Co-Pack Agreement as
if an amount of Inventory equal to the Adjustment Payment were sold pursuant
to the Co-Pack Agreement. The Adjustment Payment shall equal (x) the dollar
amount that results from taking the aggregate value of Inventory and Pet Milk
Inventory, as reflected on the Final Closing Inventory Statement, and
subtracting therefrom the value of Raw Material Inventory, as reflected on
the Final Closing Inventory Statement, MINUS (y) $51,500,000. The Adjustment
Payment shall be payable by Buyer to Sellers, if positive, and by Sellers
(who shall be jointly and severally so obligated) to Buyer, if negative. The
Adjustment Payment shall bear interest from the Closing Date to the date of
payment at the Closing Date Interest Rate, which interest shall be calculated
on the basis of a 365-day year and the actual number of days elapsed and such
interest shall be paid on the same date and in the same manner as such
Adjustment Payment, PROVIDED that such interest shall not be imposed on
Sellers if they elect to credit the Adjustment Payment against the Co-Pack
Agreement and shall not be imposed on Buyer if it elects to add the
Adjustment Payment to the Payments due under the Co-Pack Agreement.
-8-
EXHIBIT 2
2.9A POST-CLOSING INVENTORY STATEMENT.
(a) Sellers shall take a physical inventory of the Post-Closing
Inventory (as defined herein) as of a date in January 2002 to be agreed upon
in writing by General Xxxxx and Buyer (the "Post-Closing Inventory Date").
Buyer and its representatives shall have such opportunity as Buyer reasonably
deems appropriate to observe the taking and reconciliation of such
Post-Closing Inventory (which may begin prior to the Post-Closing Inventory
Date) in connection with the preparation of the Post-Closing Inventory
Statement (as defined herein). On the Post-Closing Inventory Date, Sellers
shall prepare and deliver to Buyer a statement (the "Post-Closing Ordinary
Course Statement") setting forth the type, value and location, as of the
Post-Closing Inventory Date, of the Post-Closing Inventory, which statement
shall be derived from Sellers' inventory records maintained with respect to
the Post-Closing Inventory pursuant to the Transition Services Agreement and
shall be prepared in a manner consistent with the Inventory Standards.
Further, within thirty (30) days following the Post-Closing Inventory Date,
Sellers shall prepare and deliver to Buyer a statement (the "Post-Closing
Inventory Statement") setting forth the type, value and location, as of the
Post-Closing Inventory Date, of the Post-Closing Inventory, which statement
shall be derived from such physical taking of such Post-Closing Inventory and
shall be prepared in a manner consistent with the Inventory Standards. Buyer
shall provide Sellers and their accountants full access to the books and
records, to any other information, including working papers of its
accountants, and to any employees of Buyer, in each case as may be reasonably
necessary for Sellers to prepare the Post-Closing Inventory Statement, to
respond to the Buyer's Post-Closing Objection (as defined herein) and to
prepare materials for presentation to the CPA Firm in connection with the
matters contemplated by Section 2.9A(c). "Post-Closing Inventory" shall mean
all inventory of the Business or Pet Milk Business that are (i) finished
goods held for sale by Buyer or any of its Affiliates, or by Sellers or any
of their Affiliates on behalf of Buyer, in the ordinary course of operating
the Business or the Pet Milk Business, as applicable, as of the Post-Closing
Inventory Date, or (ii) finished goods held by third parties under co-pack
agreements for producing Products for sale by the Business or Pet Milk
Products for sale by the Pet Milk Business, as the case may be, and to which
Buyer or its Affiliates holds title as of the Post-Closing Inventory Date.
(b) Buyer shall, within thirty (30) days after the delivery by
Sellers of the Post-Closing Inventory Statement, complete its review thereof.
After delivery of the Post-Closing Inventory Statement, Sellers shall provide
Buyer and its accountants full access to all books and records, to any other
information, including working papers of its accountants, and to any
employees of Seller, in each case used in the preparation of the Post-Closing
Inventory Statement or as may otherwise be reasonably necessary for Buyer to
prepare the Buyer's Post-Closing Objection and to prepare materials for
presentation to the CPA Firm in connection with the matters contemplated by
Section 2.9A(c). The Post-Closing Inventory Statement shall be binding and
conclusive upon, and deemed accepted by, Buyer unless Buyer shall have
notified Sellers in writing within thirty (30) days after delivery of the
Post-Closing Inventory Statement of any objection thereto (the "Buyer's
Post-Closing Objection"). The Buyer's Post-Closing Objection shall set forth
a description of the basis of the Buyer's Post-Closing Objection and the
adjustments to the value of Post-Closing Inventory reflected on the
Post-Closing Inventory
-9-
Statement that Buyer believes should be made. Any items not disputed during
the foregoing thirty (30) day period shall be deemed to have been accepted by
Buyer.
(c) If Sellers and Buyer are unable to resolve all of their disputes
with respect to the Post-Closing Inventory Statement within thirty (30) days
following Sellers' receipt of the Buyer's Post-Closing Objection to such
Post-Closing Inventory Statement pursuant to Section 2.9A(b), they shall
refer their remaining differences to the CPA Firm for decision, which
decision shall be made consistent with the Inventory Standards within
forty-five (45) days and shall be final and binding on the parties, PROVIDED
that the CPA Firm's determination as to any item set forth in Buyer's
Post-Objection shall not be more beneficial to Sellers than the determination
of that item by Sellers in the Post-Closing Inventory Statement or more
beneficial to Buyer than the determination of that item in Buyer's
Post-Closing Objection. Any expenses relating to such engagement of the CPA
Firm shall be shared equally by Sellers, on one hand, and Buyer, on the other
hand. Sellers and Buyer shall each bear the fees of their respective auditors
incurred in connection with the determination and review of the Post-Closing
Inventory Statement.
(d) The Post-Closing Inventory Statement shall become final and
binding on the parties upon the earliest of (i) if no Buyer's Post-Closing
Objection has been given, the expiration of the period within which Buyer
must make its objection pursuant to Section 2.9A(b) hereof, (ii) agreement in
writing by Sellers and Buyer that the Post-Closing Inventory Statement,
together with any modifications thereto agreed to by Sellers and Buyer, shall
be final and binding and (iii) the date on which the CPA Firm shall issue its
written determination with respect to any dispute relating to such
Post-Closing Inventory Statement. The Post-Closing Inventory Statement, as
submitted by Sellers if no timely Buyer's Post-Closing Objection has been
given or as adjusted pursuant to any agreement between the parties or as
determined pursuant to the decision of the CPA Firm, when final and binding
on all parties, is herein referred to as the "Final Post-Closing Inventory
Statement".
(e) The Final Post-Closing Inventory Statement shall be compared to
the Post-Closing Ordinary Course Statement on a stock keeping unit
("SKU")-by-SKU basis with respect to the quantities of Products or Pet Milk
Products, as applicable, reflected on such statements and, with respect to
each SKU, such difference shall be expressed as a percentage (the "Percentage
Difference"). The value of Inventory or Pet Milk Inventory, as applicable,
reflected on the Final Closing Inventory Statement shall then be adjusted, up
or down, with respect to each Product or Pet Milk Product SKU based on the
applicable Percentage Difference for each such SKU and the value per unit
assigned to such SKU as of the Closing Date on such Final Closing Inventory
Statement, such that there shall be an upward adjustment if the Final
Post-Closing Inventory Statement reflects a higher quantity of such SKU as of
the Post-Closing Inventory Date than does the Post-Closing Ordinary Course
Statement and a downward adjustment if the Final Post-Closing Inventory
Statement reflects a lower quantity of such SKU as of the Post-Closing
Inventory Date than does the Post-Closing Ordinary Course Statement. By way
of example and not limitation, if the quantity of a particular Product SKU
was shown as 10,000 cases on the Final Post-Closing Inventory Statement and
as 11,000 cases on the Post-Closing Ordinary Course Statement, the Percentage
Difference would be 10% for such Product SKU; if the Final Closing Inventory
Statement showed 15,000 cases of such Product SKU at a value of $10 per case,
or $150,000 in total value for such Product SKU, the foregoing adjustment
would
-10-
result in adjusting the quantity of such Product SKU reflected on such Final
Closing Inventory Statement downward by 1,500 cases, or 10%, and the value of
such Product SKU Inventory reflected on such Final Closing Inventory
Statement downward by $15,000, or $10 multiplied by 1,500 cases. The
adjustments (up or down) to the value of all Inventory and Pet Milk Inventory
reflected on the Final Closing Inventory Statement (but not including
Inventory or Pet Milk Inventory that is Raw Material Inventory) shall be made
pursuant to this Section 2.9A(e) and the aggregate value of Inventory and Pet
Milk Inventory reflected on the Final Closing Inventory Statement (but not
including Inventory or Pet Milk Inventory that is Raw Material Inventory)
after adding and subtracting, as applicable, such adjustments shall be
referred to as the "Final Adjustment Amount".
(f) Within ten (10) Business Days following issuance of the Final
Post-Closing Inventory Statement, the net adjustment payment payable pursuant
to this Section 2.9A(f) (the "Post-Closing Adjustment Payment") and interest
thereon shall be paid by wire transfer of immediately available funds to a
bank account or bank accounts designated in writing by Sellers or Buyer, as
the case may be. The Post-Closing Adjustment Payment shall equal (x) the
Final Adjustment Amount, MINUS (y) the dollar amount that results from taking
the aggregate value of Inventory and Pet Milk Inventory, as reflected on the
Final Closing Inventory Statement, and subtracting therefrom the value of Raw
Material Inventory, as reflected on the Final Closing Inventory Statement.
The Post-Closing Adjustment Payment shall be payable by Buyer to Sellers, if
positive, and by Sellers (who shall be jointly and severally so obligated) to
Buyer, if negative. The Post-Closing Adjustment Payment shall bear interest
from the Closing Date to the date of payment at the Closing Date Interest
Rate, which interest shall be calculated on the basis of a 365-day year and
the actual number of days elapsed and such interest shall be paid on the same
date and in the same manner as such Post-Closing Adjustment Payment. Without
limiting any provision of this Agreement or any Collateral Agreement, (xx) no
Post-Closing Adjustment Payment shall be made if such payment would, but for
this sentence, be less than or equal to $100,000 and (yy) Sellers shall, from
the Closing Date through the Post-Closing Inventory Date, maintain inventory
records pursuant to the Transition Services Agreement and/or relating to the
Post-Closing Inventory in a manner consistent with Sellers' past practices in
the ordinary course of business.
-11-
EXHIBIT 3
7.12 OTHER BUSINESSES.
(a) On the Closing Date, General Xxxxx shall sell, convey, transfer
and assign to Buyer, or cause its applicable Subsidiaries to sell, convey,
transfer and assign to Buyer, (i) the Other Assets and (ii) the Pet Milk
Inventory, as contemplated by Sections 2.9 and 2.9A. On each Other Business
Inventory Transfer Date (as defined herein), General Xxxxx shall sell,
convey, transfer and assign to Buyer the applicable Other Business Inventory
(other than the Pet Milk Inventory, all of which shall be transferred to
Buyer on the Closing Date), as contemplated by Section 7.13. Following the
Closing Date, Buyer shall assume all responsibility for the operation of each
Other Business, as applicable, except as otherwise expressly provided herein.
Notwithstanding anything to the contrary herein, it is agreed and understood
that any Other Asset, Other Business Inventory or any other asset relating to
each Other Business that, pursuant to this Agreement will be transferred to
Buyer, shall be transferred on the Closing Date or an Other Business
Inventory Transfer Date, as applicable.
(b) Prior to, on or after the Closing Date, Buyer shall not assume,
or in any way be liable for the payment, performance or discharge of, any
liabilities, obligations or commitments of Sellers or any of their Affiliates
for manufacturer's coupons issued prior to, or by either Seller on, the
Closing Date and relating to Other Products with respect to each Other
Business.
(c) On the Closing Date, Buyer shall assume pursuant to a written
instrument reasonably satisfactory to Buyer and Sellers and shall pay,
perform and discharge when due all liabilities and obligations for trade
promotions arising from (i) trade promotion activities or events primarily
related to each Other Business that are committed to after the Closing Date
and occur at any time following the Closing Date or (ii) trade promotion
activities or events primarily related to each Other Business that occur
following the Closing Date and that were committed to before the Closing
Date, except to the extent any such single activity or promotion was not
disclosed to Buyer by Sellers and the liability and obligation per customer
buying group related to such activity or promotion exceeds $100,000 unless
such activity or promotion was committed to by Sellers in the ordinary course
consistent with past practice.
(d) After the Closing Date, Buyer shall pay, perform and discharge
when due (i) all obligations, liabilities and commitments of each Seller in
respect of any and all Other Products shipped by Buyer or in respect of the
operation of each Other Business by Buyer at any time after the Closing Date
except where such Other Products constituted finished products as of the
Closing Date and such liabilities, obligations or commitments of Sellers
constituted product liabilities or recall liabilities, unless (and to the
extent that) the liabilities, obligations or commitments were caused by
Buyer's negligence in the storage or transportation of such Other Products
after the Closing Date or Buyer's failure after the Closing Date to employ
quality control standards of at least the standards employed by Sellers prior
to the Closing Date, (ii) all refund and replacement obligations relating to
Other Products shipped by or on behalf of Buyer
-12-
after the Closing Date, and (iii) all liabilities and obligations for
customer deductions attributable to invoices issued by Buyer with respect to
Other Products shipped after the Closing Date.
-13-
EXHIBIT 4
7.13 OTHER BUSINESS INVENTORY.
(a) On each Other Business Inventory Transfer Date, General Xxxxx
shall sell, convey, transfer and assign to Buyer, or cause its Affiliates to
sell, convey, transfer and assign to Buyer, the Other Business Inventory with
respect to the Other Business to which such Other Business Inventory Transfer
Date applies (it being understood that no Pet Milk Inventory shall be
transferred to Buyer pursuant to this Section 7.13). Within thirty (30) days
following each Other Business Inventory Transfer Date, General Xxxxx shall
prepare and deliver to Buyer a statement setting forth the type and value of
the applicable Other Business Inventory, as of such Other Business Inventory
Transfer Date, transferred and assigned to Buyer on such Other Business
Inventory Transfer Date, which statement shall be derived from a physical
taking of such Other Business Inventory as of such Other Business Inventory
Transfer Date and shall be prepared in a manner consistent with the Inventory
Standards (each, an "Other Business Inventory Statement"). Buyer and its
representatives shall have such opportunity as Buyer reasonably deems
appropriate to observe the taking and reconciliation of such Other Business
Inventory (which may begin prior to the applicable Other Business Inventory
Transfer Date) in connection with the preparation of the applicable Other
Business Inventory Statement. Buyer shall provide General Xxxxx and its
accountants full access to the books and records, to any other information,
including work papers of its accountants, and to any employees of Buyer, in
each case as may be reasonably necessary for General Xxxxx to prepare each
Other Business Inventory Statement, to respond to each Buyer's Other Business
Objection (as defined herein) and to prepare materials for presentation to
the CPA Firm in connection with the matters contemplated by Section 7.13(c).
"Other Business Inventory Transfer Date" shall mean, with respect to each
Other Business other than the Pet Milk Business, the date on which Sellers
cease producing the Other Products of such Other Business for Buyer pursuant
to the Co-Pack Agreement.
(b) Buyer shall, within thirty (30) days after the delivery by
General Xxxxx of each Other Business Inventory Statement, complete its review
thereof. After delivery of each Other Business Inventory Statement, General
Xxxxx shall provide Buyer and its accountants full access to all books and
records, to any other information, including working papers of its
accountants, and to any employees of Sellers, in each case used in the
preparation of such Other Business Inventory Statement or as may otherwise be
reasonably necessary for Buyer to prepare the applicable Buyer's Other
Business Objection and to prepare materials for presentation to the CPA Firm
in connection with the matters contemplated by Section 7.13(c). An Other
Business Inventory Statement shall be binding and conclusive upon, and deemed
accepted by, Buyer unless Buyer shall have notified General Xxxxx in writing
within thirty (30) days after delivery of such Other Business Inventory
Statement of any objection thereto (each, a "Buyer's Other Business
Objection"). Each Buyer's Other Business Objection shall set forth a
description of the basis of such Buyer's Other Business Objection and the
adjustments to the value of Other Business Inventory reflected on such Other
Business Inventory Statement that Buyer believes should be made. Any items
not disputed during the foregoing thirty (30) day period shall be deemed to
have been accepted by Buyer.
-14-
(c) If General Xxxxx and Buyer are unable to resolve all of their
disputes with respect to any Other Business Inventory Statement within thirty
(30) days following General Xxxxx' receipt of the applicable Buyer's Other
Business Objection to such Other Business Inventory Statement pursuant to
Section 7.13(b), they shall refer their remaining differences to the CPA Firm
for decision, which decision shall be made consistent with the Inventory
Standards within forty-five (45) days and shall be final and binding on the
parties, PROVIDED that the CPA Firm's determination as to any item set forth
in any Buyer's Other Business Objection shall not be more beneficial to
General Xxxxx than the determination of that item by General Xxxxx in the
applicable Other Business Inventory Statement or more beneficial to Buyer
than the determination of that item in the applicable Buyer's Other Business
Objection. Any expenses relating to the engagement of the CPA Firm shall be
shared equally by General Xxxxx, on the one hand, and Buyer, on the other
hand. General Xxxxx and Buyer shall each bear the fees of their respective
auditors incurred in connection with the determination and review of each
Other Business Inventory Statement.
(d) An Other Business Inventory Statement shall become final and
binding on the parties upon the earliest of (i) if no Buyer's Other Business
Objection has been given with respect thereto, the expiration of the period
within which Buyer must make its objection pursuant to Section 7.13(b)
hereof, (ii) agreement in writing by General Xxxxx and Buyer that such Other
Business Inventory Statement, together with any modifications thereto agreed
to by General Xxxxx and Buyer, shall be final and binding and (iii) the date
on which the CPA Firm shall issue its written determination with respect to
any dispute relating to such Other Business Inventory Statement. Each Other
Business Inventory Statement, as submitted by General Xxxxx if no timely
Buyer's Other Business Objection has been given or as adjusted pursuant to
any agreement between the parties or as determined pursuant to the decision
of the CPA Firm, when final and binding on all parties, is herein referred to
as a "Final Other Business Inventory Statement."
(e) Within ten (10) Business Days following issuance of each Final
Other Business Inventory Statement, the payment payable pursuant to this
Section 7.13(e) (each, an "Other Business Payment") and interest thereon
shall be paid by Buyer to General Xxxxx by wire transfer of immediately
available funds to a bank account or bank accounts designated in writing by
General Xxxxx. Each Other Business Payment shall be equal to the value of the
Other Business Inventory as reflected on the Final Other Business Inventory
Statement relating thereto. Each Other Business Payment shall bear interest
from the Closing Date to the date of payment at the Closing Date Interest
Rate, which interest shall be calculated on the basis of a 365-day year and
the actual number of days elapsed and such interest shall be paid on the same
date and in the same manner as such Other Business Payment.
-15-
EXHIBIT 5
A) The following parenthetical "(except that the term shall extend until
December 7, 2003, with respect to the license to Liberty Flour Xxxxx, Inc.,
a Philippine corporation ("Liberty Flour Xxxxx"), from GMI, dated April 1,
1999 (the "Liberty Flour Xxxxx Agreement"), pursuant to which GMI granted
Liberty Flour Xxxxx a license to use the SOFTASILK xxxx on flour, cake
mixes, pancake mixes, pizza mixes and brownie mixes), or the termination of
the Liberty Flour Xxxxx Agreement if such agreement is terminated early" is
hereby added to the end of Section 2 of Schedule 1 to the Xxxxxx Xxxxx
(Part II) Trademark License Agreement immediately after the words "two (2)
years."
B) The following new Section 7 is hereby added to the end of Schedule 1 to the
Xxxxxx Xxxxx (Part II) Trademark License Agreement:
7. LIBERTY FLOUR XXXXX AGREEMENT
(a) All use by Liberty Flour Xxxxx of the SOFTASILK xxxx shall be as a
sublicensee of GMI pursuant to the Liberty Flour Xxxxx Agreement
rather than as a direct licensee of LICENSOR.
(b) GMI represents and warrants to LICENSOR that, except to the degree
that doing so or any breach has not negatively impacted the
SOFTASILK xxxx or LICENSOR'S rights:
(i) it has not granted any material consent, approval or
authorization to Liberty Flour Xxxxx as contemplated by the
Liberty Flour Xxxxx Agreement or waived any material rights
under the Liberty Flour Xxxxx Agreement, including consent,
approval or authorization under Section I(a) final paragraph,
Section I(d), or Section IX(a);
(ii) the Liberty Flour Xxxxx Agreement has not been materially
amended; and
(iii) GMI is not aware of any reason to believe that either party has
materially breached the Liberty Flour Xxxxx Agreement.
(c) GMI covenants to LICENSOR that:
(i) it will not grant any consent, approval or authorization to
Liberty Flour Xxxxx as contemplated by the Liberty Flour Xxxxx
Agreement, or waive any rights under the Liberty Flour Xxxxx
Agreement, including consent, approval or authorization under
Section I(a) final paragraph, Section I(d), or Section IX(a),
except to the degree that doing so would not negatively impact
the SOFTASILK xxxx or LICENSOR's rights;
-16-
(ii) it will not amend the Liberty Flour Xxxxx Agreement, except to
the degree that doing so would not negatively impact the
SOFTASILK xxxx or LICENSOR's rights;
(iii) if and when the fourth paragraph of Section VIII of the Liberty
Flour Xxxxx Agreement permits, GMI will terminate the Liberty
Flour Xxxxx Agreement as to the SOFTASILK xxxx; and
(iv) GMI shall, as promptly as practicable, provide LICENSOR with
relevant details as to any possible breach of the Liberty Flour
Xxxxx Agreement, that GMI has knowledge of, relating to the
SOFTASILK xxxx, shall promptly and fully enforce the provisions
relating to the SOFTASILK xxxx under the Liberty Flour Xxxxx
Agreement, and shall promptly keep LICENSOR informed of all
developments regarding such enforcement.
-17-
