EXHIBIT 2.2
CAPITAL CONTRIBUTION AND ASSUMPTION AGREEMENT
CAPITAL CONTRIBUTION AND ASSUMPTION AGREEMENT (this "Capital
Contribution and Assumption Agreement"), dated as of November 26, 1997, by and
between Xxx. Xxxxxx' Holding Company, Inc., a Delaware corporation ("MFH"), and
Xxx. Xxxxxx' Original Cookies, Inc., a Delaware corporation ("MFOC").
W I T N E S S E T H:
WHEREAS, MFH is the owner of (i) 56 shares of the common
stock, par value $1.00 per share (the "PTI Time Stock"), of Pretzel Time, Inc.,
a Pennsylvania corporation ("Pretzel Time"), (ii) a Promissory Note, dated
September 2, 1997, of Xxxxxx X. Xxxxxxxxx, an individual resident in the State
of Pennsylvania ("Xxxxxxxxx") in the principal amount of $500,000, together with
any accrued but unpaid interest thereon (together the "PTI Promissory Note"),
(iii) all of the outstanding common stock, par value $.01 per share (the MFOC
Stock"), and (iv) a Senior Subordinated Note of MFOC in the principal amount of
$4,643,000 (the "MFOC Note");
WHEREAS, MFH has entered into: (i) a Management Agreement,
entered into as of September 2, 1997, with Pretzel Time; (ii) a Shareholders
Agreement, entered into as of September 2, 1997, with Xxxxxxxxx; (iii) a
Registration Rights Agreement, entered into as of September 2, 1997, with
Xxxxxxxxx; (iv) a Stock Purchase Agreement, entered into as of August 19, 1997,
with Pretzel Time and the Sellers parties thereto; (v) a Stock Acquisition
Agreement, entered into as of September 2, 1997, with Pretzel Time and
Xxxxxxxxx; (vi) a Consulting Agreement, entered into as of July 25, 1997, with
Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxx, individuals resident in the State of Idaho,
and Xxx. Xxxxxx Pretzel Concepts, Inc., a Delaware corporation; (vii) an Escrow
Agreement, entered as of August 19, 1997, with each of the Sellers parties
thereto and Xxxxx X. Xxxxxx; (viii) an Exchange Agreement, entered into as of
September 2, 1997, with Xxxxxxxxx; and (ix) an Affidavit of Stock Certificate
and Indemnity Agreement, entered into as of September 4, 1997, by Xxxxxxxxx (the
agreements in this paragraph being collectively referred to herein as the
"Agreements");
WHEREAS, MFH desires to contribute the PTI Stock, the PTI
Promissory Note, and the MFOC Promissory Note and the Agreements and all
obligations and rights thereunder to MFOC;
WHEREAS, MFOC desire to acquire the PTI Stock, the PTI
Promissory Note, and the MFOC Note and assume the obligations and rights under
the Agreements; and
WHEREAS, the parties intend for the contribution and
assumption provided for herein to be treated as a capital contribution for
federal tax purposes.
NOW, THEREFORE, in consideration of the promises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1 MFH hereby contributes to MFOC the PTI Stock, the PTI
Promissory Note, and the MFOC Note and all of its rights under the Agreements
and hereby cancels the MFOC Note.
2 MFOC hereby assumes and agrees to pay, perform, fulfill and
discharge the obligations of MFH under the Agreements.
3 MFOC does not assume any debt, claim, obligation or other
liability of MFH whatsoever, except as set forth herein.
4 This instrument shall inure to the benefit of MFH and MFOC
and their respective successors and assigns and shall be binding upon MFH and
MFOC and their respective successors and assigns, effective immediately upon its
delivery. This instrument shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware without regard to the conflict
of law rules thereof. This instrument may be executed in counterparts, each of
which shall be deemed to be an original and both of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, this Capital Contribution and Assumption
Agreement has been duly executed and delivered as of the date first above
written.
XXX. XXXXXX HOLDING COMPANY, INC.
By:__/s/ xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: V.P.
XXX. XXXXXX' ORIGINAL COOKIES, INC.
By:__/s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: V.P.
