EXHIBIT 10.53
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INVESTMENT AND STOCK PURCHASE AGREEMENT
HOMEGROWN HOLDINGS CORP.
A DELAWARE CORPORATION
AND
ANNIE'S HOMEGROWN, INC.
A DELAWARE CORPORATION
RE:
$1,000,000 9% SUBORDINATED NOTE
AND
SERIES A CONVERTIBLE PREFERRED STOCK WITH AGGREGATE PAR VALUE OF
$2,000,000
AND
WARRANT TO PURCHASE SHARES OF COMMON STOCK
DATED AS OF
DECEMBER 2, 1999
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This Investment and Stock Purchase Agreement (the "Agreement") is
entered into this 2nd day of December, 1999, by and between, HOMEGROWN HOLDINGS
CORP., a Delaware corporation, ("HOLDINGS") and ANNIE'S HOMEGROWN, INC., a
Delaware Corporation ("ANNIE'S").
NOW THEREFORE the parties hereto agree as follows:
SECTION 1. CONSIDERATION.
SECTION 1.1. TERMS. In consideration of HOLDINGS making a cash
investment (the "Investment") in a total amount of $3,000,000 under the terms
and conditions set forth in this Agreement, ANNIE'S shall issue, convey,
transfer, assign and deliver to HOLDINGS (i) its unsecured subordinated
promissory note in the principal amount of $1,000,000, bearing interest at 9%
per annum, providing for interest only payments for five years with principal
then being due (the "Note"), (ii) preferred stock having an aggregate par value
of $2,000,000 redeemable at par with a liquidation preference of par plus 10%
per annum and having the voting rights of 1,000,000 shares of Common Stock of
ANNIE'S (the "Series A Convertible Preferred Stock"), and (iii) a Warrant to
purchase 1,500,000 shares of the Common Stock of ANNIE'S, par value $.001 (the
"Common Stock").
SECTION 1.2. THE NOTE. The Note shall be in an aggregate principal
amount of $1,000,000 due on the fifth anniversary of its issuance, and shall be
(i) dated the date of issue, (ii) expressed to bear interest prior to maturity
at the rate of 9% per annum, payable semi-annually on the last day of June and
December in each year commencing on the first of such dates after the date of
issuance thereof, and at maturity, and to bear interest on any overdue
installment of interest or payment of principal in the amount of 1% per month
for each month that payment is so overdue, until paid, (iii) expressed to mature
on the fifth anniversary of its issue, (iv) subordinate to any payments due to
current or future bank or institutional lenders of ANNIE'S and (v) otherwise
substantially in the form attached hereto as Exhibit "A". Interest on the Note
shall be computed on the basis of a 360-day year of twelve 30-day months.
ANNIE'S shall have the privilege of prepaying the outstanding Note, in
whole or in part without penalty. Prepayment on the Note shall be made by the
payment of the aggregate principal amount remaining unpaid on the Note and
accrued interest thereon to the date of such prepayment. Any prepayment of less
than the balance of principal and accrued interest on the Note shall be applied
to the payment in full of the Note.
SECTION 1.3. THE WARRANT. At the time of the issuance of the Note,
ANNIE'S shall issue, convey, transfer, assign and deliver to HOLDINGS, a Warrant
substantially in the form attached hereto as Exhibit "B" to purchase the Common
Stock (the "Warrant").
The Warrant shall have a term of five years and shall have an exercise
price equal to $2.00 per share of Common Stock until the third anniversary of
the Closing (as
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defined in ss.2); $2.50 during the six months thereafter; $3.00 from then to the
fourth anniversary of the Closing; $3.50 for six months thereafter; and $4.00
per share from four and one-half years after the Closing until expiration of the
Warrant.
In the event the net sales of ANNIE'S for the fiscal year ended March
31, 2000 do not equal or exceed $9,500,000 or the "adjusted net income" of
ANNIE'S for that fiscal year is not positive, the exercise price of the Warrant
shall be reduced by $.50 per share from each of the prices set forth above. "Net
Sale" means the gross sales price arising from the sales by ANNIE'S of goods
during the fiscal year ended March 31, 2000 (recorded in accordance with
generally accepted accounting principles) net of returns or disputed
transactions. "Adjusted net income" is defined on Exhibit "C" hereto.
The rights, powers and terms of the Common Stock will be provided for
in ANNIE'S Certificate of Incorporation and Certificate of Designation in effect
on the Closing Date, and as otherwise provided by the Delaware General
Corporation Law.
SECTION 1.4. THE SERIES A CONVERTIBLE PREFERRED STOCK. The Series A
Convertible Preferred Stock shall have an aggregate par value of $2,000,000
redeemable at and with a liquidation preference of par plus 10% per annum and
having the voting rights of 1,000,000 shares of common stock of ANNIE'S. The
Series A Convertible Preferred Stock shall be convertible at any time in whole
or in part into common stock at $2.00 of par value of preferred stock per common
share. Upon such conversion, the converted share of Series A Convertible
Preferred Stock shall be deemed cancelled together with any liquidation
preference accrued therein. The details of the conversion, redemption and
regulation rights of the Series A Convertible Preferred Stock are set forth on
the Certificate of Designation, attached as Exhibit "D" hereto.
On or before the Closing Date, ANNIE'S will have adopted and filed with
the Secretary of State of Delaware, as necessary, an amended and restated
Certificate of Incorporation and a Certificate of Designation to create and
authorize issuance of the Series A Convertible Preferred Stock with the rights,
privileges and preferences set forth in this Agreement and will have taken all
necessary steps for authorizing the issuance of the Series A Convertible
Preferred Stock.
SECTION 2. CLOSING.
SECTION 2.1. THE CLOSING DATE. Subject to the terms and conditions
hereof and on the basis of the representations and warranties hereinafter set
forth, ANNIE'S agrees to issue, convey, transfer, assign and deliver to HOLDINGS
upon execution of this Agreement (the "Closing Date"), in return for $2,000,000
of the Investment set forth in ss.1.1, the Series A Convertible Preferred Stock
described in ss.1.4. On the Closing DatE, ANNIE'S also agrees to execute and
place in escrow with Xxxxxxxxxxx & Xxxxxxxx LLP, counsel to ANNIE'S, the Note
and Warrant to be held according to an Escrow Agreement by and among HOLDINGS,
ANNIE'S and Xxxxxxxxxxx & Xxxxxxxx LLP as Escrow Agent (the "Escrow Agreement").
Pursuant to the terms of the Escrow Agreement, the Note and Warrant shall be
released to the escrow agent (the "Pledge
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Escrow Agent") identified in the Pledge and Escrow Agreement (the "Pledge
Agreement"), dated the date hereof, between HOLDINGS, Xxx X. Xxxxxx and Xxxxxx
X. Xxxxxx, on behalf of HOLDINGS and subject to the Pledge Agreement, upon the
receipt by ANNIE'S of the remaining $1,000,000 of the Investment, which HOLDINGS
shall be obligated to deliver to ANNIE'S on or before April 30, 2000, unless
ANNIE'S is then insolvent or bankrupt. The parties agree that they shall take
all actions, including the delivery of documents, necessary in order to
facilitate completion of all of the transactions contemplated by this Agreement.
The closing of the transactions under this Agreement (the "Closing")
shall take place at the offices of Xxxxxxxxxxx & Xxxxxxxx LLP, located at 00
Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, on the Closing Date. The Closing shall be
deemed to have been effective as of 11:59 p.m. on the Closing Date.
SECTION 2.2. DELIVERY. At the Closing, ANNIES shall deliver to the
Pledge Escrow Agent, on behalf of HOLDINGS and subject to the Pledge Agreement,
the Series A Convertible Preferred Stock against the payment thereof by HOLDINGS
of $2,000,000 of the Investment in Federal Reserve, certified check or other
funds current and immediately available and wired to ANNIE'S bank account at
Eastern Bank, 000 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000, ABA Number
000000000, Account Number 200268886. ANNIE'S shall also deliver to Xxxxxxxxxxx &
Xxxxxxxx LLP, as Escrow Agent, the Note and Warrant, to be held by the Escrow
Agent pursuant to the terms of the Escrow Agreement.
SECTION 3. REPRESENTATIONS AND WARRANTIES BY ANNIE'S.
ANNIE'S hereby represents and warrants to HOLDINGS, as of the Closing
Date, as follows:
SECTION 3.1. ORGANIZATION, STANDING AND POWER. ANNIE'S is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware. ANNIE'S has all necessary power and authority to own, use and
transfer its properties and assets and to transact the business now being
conducted. ANNIE'S has furnished to HOLDINGS copies of its Certificate of
Incorporation, Certificate of Designation, and Bylaws which copies are true,
correct and complete. The copies of the Certificate of Incorporation and Bylaws
contain all amendments through the date of this Agreement. The copies of the
Minute Books contain a complete record of all meetings of directors and
shareholders and all actions by written consent without a meeting of directors
and shareholders for the two years ending on the Closing and reflect all
material transactions referred to in such minutes accurately in all material
respects.
SECTION 3.2. AUTHORITY FOR TRANSACTION. ANNIE'S execution and delivery
of this Agreement, its compliance with the provisions hereof and the
consummation of all of the transactions contemplated hereby have all been duly
and validly authorized by all necessary corporate action on the part of ANNIE'S,
and this Agreement is valid and
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binding upon ANNIE'S in accordance with its terms. The Series A Convertible
Preferred Stock when issued against payment by Holdings, will be validly issued,
fully paid and nonassessable, and will be free of any liens or encumbrances and
issued in compliance with all applicable state and federal laws concerning the
issuance of securities.
SECTION 3.3. FILINGS. On or before the Closing Date (as defined in
ss.2.1) ANNIE'S will, if necessary, have duly adopted and filed with the
Secretary of the State of Delaware an amended and restated Certificate of
Incorporation and Certificate of Designation to create and authorize the Series
A Convertible Preferred Stock with the rights, privileges and preferences set
forth herein and will have taken all necessary corporate action authorizing the
sale and issuance of the Series A Convertible Preferred Stock.
SECTION 3.4. NO CONFLICT. Other than as identified on the Disclosure
Schedule, neither the execution and delivery of this Agreement by ANNIE'S nor
compliance by ANNIE'S with any of the provisions hereof, nor the consummation of
the transactions contemplated hereby, will:
(a) conflict with or result in a breach of any provision of any
agreement between ANNIE'S and any of its shareholders or, to
ANNIE'S knowledge, between any of its shareholders;
(b) result in a default, or give rise to any right of termination,
cancellation or acceleration, under any term, condition or
provision of any contract, encumbrance or other instrument or
obligation to which ANNIE'S, is a party or by which it or any
of its respective assets may be bound; or
(c) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to ANNIE'S, or any of its respective
properties or assets.
Other than as identified on the Disclosure Schedule, no consent, waiver or
approval by, notice to or filing with any person is required in connection with
the execution and delivery of this Agreement by ANNIE'S, compliance by ANNIE'S
with any of the provisions hereof or the consummation of the transactions
contemplated hereby.
SECTION 3.5. SUBSIDIARIES. ANNIES does not own or control, directly or
indirectly, any interest or investment in any other entity.
SECTION 3.6. CAPITALIZATION. The authorized capital stock of ANNIE'S
(as defined in ss.2), consists of : (a) 10,000,000 shares of Common Stock, par
value $.001, of which 4,709,768 are outstanding, and (b) 1,000,000 shares of
Preferred Stock, par value $2.00, all of which is designated Series A, and none
of which is issued immediately prior to the Closing. All issued and outstanding
shares have been duly authorized and validly issued, and are fully paid and
nonassessable.
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SECTION 3.7. FINANCIAL STATEMENTS. ANNIE'S has heretofore delivered to
HOLDINGS true, correct and complete copies of its balance sheets, income
statements, statements of shareholders' equity and statements of cash flows for
the fiscal year ending March 31, 1999 (which were audited) and for the quarters
ending June 30 and September 30, 1999 (which are unaudited) (together the
"Financial Statements.) The Financial Statements are accurate and complete in
all material respects, and are in accordance with the books of account and
records of ANNIE'S (which in turn are accurate and complete in all material
respects.) The Financial Statements present fairly and accurately ANNIE'S
financial position at the dates thereof and the results of ANNIE'S operations,
changes in ANNIE'S financial position and other information included therein for
the periods or as at the dates therein set forth. The Financial Statements have
been prepared in accordance with generally accepted accounting principles
("GAAP"), except that, in the case of the unaudited financials, certain notes
and similar presentation items are omitted. The Financial Statements show all
assets and liabilities of any kind or nature, direct or indirect, absolute or
contingent, existing as of the dates indicated, insofar as such items are
required by GAAP to be included on such Financial Statements. Except as set
forth in the Financial Statements or on the Disclosure Schedule, ANNIE'S has no
liabilities, contingent or otherwise, other than (a) liabilities incurred in the
ordinary course of business and (b) obligations under contracts and commitments
incurred in the ordinary course of business and not required under GAAP to be
reflected in the Financial Statements, which neither individually or in the
aggregate are material to ANNIE'S financial condition or operating results.
Except as disclosed in the Financial Statements or on the Disclosure Schedule,
ANNIE'S is not a guarantor or indemnitor of any indebtedness of any person or
entity. ANNIE'S maintains and will continue to maintain a standard system of
accounting established and administered in accordance with GAAP.
SECTION 3.8. NO CHANGES. Since March 31, 1999, except as described in
the Disclosure Schedule, there has not been:
(a) Any material adverse change in the condition (financial or
otherwise), of the assets, liabilities or business operations of ANNIE'S, except
changes in the ordinary course of business which have not been, in the
aggregate, materially adverse;
(b) Any damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting ANNIE'S assets, properties,
financial condition, operating results, prospects, or business (as such business
is presently conducted and is proposed to be conducted);
(c) Any sale, lease or other transfer of any of ANNIE'S assets, other
than in the ordinary course of business for fair and adequate consideration in
money or money's worth;
(d) Any sale, assignment or transfer of any patent, trademark, trade
name, copyright or other intangible asset owned by ANNIE'S;
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(e) Any waiver or compromise by ANNIE'S of a valuable right or of a
material debt owed to it;
(f) Any satisfaction or discharge of any lien, claim, or encumbrance or
payment obligation by ANNIE'S, except in the ordinary course of business and
which is not material to ANNIE'S assets, properties, financial condition,
operating results or business (as such business is presently conducted and is
proposed to be conducted);
(g) Any change or amendment to a material contract or arrangement to
which ANNIE'S or any of its assets or properties is subject (except in the
ordinary course of business);
(h) Any material change in any compensation arrangement or agreement in
respect of any of ANNIE'S officers, agents or employees;
(i) Any declaration, setting aside, payment or other distribution in
respect of any of ANNIE'S capital stock, or any direct or indirect redemption,
purchase or other acquisition of any of such stock by ANNIE'S;
(h) Any labor trouble or other event or condition, known to ANNIE'S
after reasonable investigation, materially and adversely affecting ANNIE'S
business or plans;
(i) Any amendment, cancellation or termination of any contract, license
or other instrument material to ANNIE'S;
(j) Any failure to pay when due any material obligation of ANNIE'S,
except in the ordinary course of business or where such failure would not have
an effect on ANNIE'S that is materially adverse to its business operations or
financial condition, or on the ability of ANNIE'S to consummate the transaction
contemplated hereby;
(k) Any damage, destruction or loss not covered by insurance and
materially adversely affecting the business operations or assets of ANNIE'S;
(l) Any change in accounting methods or practices by ANNIE'S which
would have a material adverse effect on the Financial Statements;
(m) Any material revaluation other than in the ordinary course by
ANNIE'S of any of its respective assets, including without limitation, writing
off notes or accounts receivable;
(n) Other than as set forth in this Agreement, any issuance or the
commitment of ANNIE'S to issue any share of stock or other equities or
obligations or securities convertible into or exchangeable for shares of stock
or other equity securities;
(o) Any indebtedness incurred by ANNIE'S for borrowed money or any
commitment to borrow money entered into by ANNIE'S or any loans made or agreed
to be made by ANNIES;
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(p) Any agreement by ANNIE'S to do any of the foregoing;
(q) Any other event or condition of any character which materially
adversely affects ANNIE'S assets, properties, financial condition, operating
results, or business (as such business is presently conducted and as it is
proposed to be conducted).
SECTION 3.9. COMPLIANCE WITH LAWS. ANNIE'S and its business are in
compliance in all material respects with applicable laws, rules, ordinances, use
permits, orders and regulations, and to ANNIE'S best knowledge, there is no
basis for any action, suit or proceeding arising out of or in connection
therewith. ANNIE'S has not received any notice of any violation of any such law,
rule, ordinance, order or regulation, and ANNIE'S is not subject to any
settlement agreement or consent decree with continuing obligations or
restrictions on ANNIE'S.
SECTION 3.10. NO UNDISCLOSED LIABILITIES. Except as explicitly
disclosed on the Disclosure Schedule or in the Financial Statements, ANNIE'S
does not have, nor are any of its assets or properties subject to, any debt,
liability, obligation, contract or commitment of any kind or nature, direct or
indirect, whether accrued, absolute, contingent or otherwise. To ANNIE'S
knowledge, there are no facts that could serve as the basis for any material
debt, liability, obligation or commitment of ANNIE'S not so disclosed.
SECTION 3.11. TAX RETURNS, ELECTIONS AND PAYMENTS. ANNIE'S has filed
all tax returns and reports as required by law. These returns and reports are
true and correct in all material respects. ANNIE'S has paid all taxes and other
assessments due, except those contested by it in good faith which are disclosed
in this Agreement on the Disclosure Schedule. The provision for ANNIE'S taxes is
adequate for taxes due or accrued as of the date of the Financial Statements.
ANNIE'S has not elected to be treated as a Subchapter S corporation, nor has it
made any other elections under the Internal Revenue Code of 1986, as Amended
("Code") (other than elections which relate solely to methods of accounting,
depreciation or amortization), which would have a material adverse affect on
ANNIE'S, its financial condition, its business as presently conducted or
proposed to be conducted, or any of its material properties or material assets.
Other than those identified on the Disclosure Schedule, ANNIE'S has never had a
tax deficiency or tax audit and ANNIE'S has made all required withholdings from
the income paid to its employees.
SECTION 3.12. LABOR RELATIONS AND EMPLOYMENT ISSUES.
(a) ANNIE'S has not entered into any collective bargaining agreement or
similar contract with any employee, union, labor organization or other employee
representative or group of employees and, to ANNIE'S best knowledge, no such
organization or person has made or is making any attempt to organize or
represent employees of ANNIE'S.
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(b) Without limiting the generality of any other warranty, to knowledge
of ANNIE'S management, ANNIE'S is in full compliance with all applicable laws,
rules, regulations, standards and contracts relating to employment, including
those relating to wages, hours, working condition, hiring, promotion,
occupational health and safety (including those dealing with employee handling
or use of or exposure to hazardous or toxic substances and the training of
employees with respect to such substances), and ANNIE'S has not received any
notice of any violation of any such law, rule, regulation, standard or contract.
(c) Other than as identified on the Disclosure Schedule, no current or
former employee of ANNIE'S has any claim against ANNIE'S (or any of its
officers, employees or agents under any law, rule, regulation, standard or
contract on account of or for overtime pay for the current payroll period),
wages or salary for any period other than the current payroll period, incentive
or deferred compensation, vacation, holiday or other time off or pay in lieu
thereof (other than time off or pay in lieu thereof earned in respect of the
current year), or any violation of any law, rule, regulation, standard or
contract relating to the payment of wages, fringe benefits, wage supplements or
hours of work.
SECTION 3.13. TITLE TO PROPERTIES AND ASSETS; LIENS AND ENCUMBRANCES.
ANNIE'S has good and marketable title to its properties and assets, and has good
title to all its leasehold estates, in each case unless otherwise disclosed in
the Financial Statements subject to no mortgage, pledge, lien, lease, security
interest, encumbrance, or charge, other than tax, materialmen's, or like liens
and encumbrances or obligations not yet due and payable, which do not materially
detract from the value of the affected property or materially impair ANNIE'S
operations. ANNIE'S properties and assets are in good condition and repair in
all material respects.
SECTION 3.14. PATENTS, COPYRIGHTS AND TRADEMARKS. Other than as
identified on the Disclosure Schedule, ANNIE'S has exclusive right, title and
interest in and to all intangible property, including all patents, trademarks,
service marks, tradenames, copyrights, trade secrets, and other proprietary
rights (collectively "Proprietary Rights"), or adequate licenses, rights,
purchase options, assignments, or releases for the Proprietary Rights
(collectively the "Proprietary Rights Agreements") necessary for its business as
now conducted and as currently proposed to be conducted. ANNIE'S has not
received any notice or claim of, nor does it have any knowledge of, any
infringement or misappropriation by ANNIE'S of the asserted rights of others.
Assuming the due authorization, execution and delivery of the Proprietary Rights
Agreements by their respective parties, the Proprietary Rights Agreements
constitute valid, legal and binding obligations of the respective parties and
are enforceable in accordance with their terms, except as limited by bankruptcy
and other laws of general application affecting the rights and remedies of
creditors generally and except insofar as the availability of equitable remedies
may be limited.
To ANNIE'S knowledge, ANNIE'S has taken or is taking all steps
reasonably necessary or appropriate to establish and maintain its ownership of
the Proprietary Rights and is not aware of any infringement or misappropriation
by others of any of its
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Proprietary Rights. ANNIE'S shall provide HOLDINGS with a true and correct list
of all: (a) Proprietary Rights; (b) Proprietary Rights Agreements; (c)
registrations and applications for ANNIE'S copyrights and trademarks; (d) the
trademarks under which, and the countries in which, ANNIE'S sells products; (e)
all availability searches conducted for ANNIE'S trademarks; and (f) all Office
Actions issued by the Untied States Patent and Trademark Office and any
equivalent office outside the United States relating to ANNIE'S trademarks.
SECTION 3.15. COMPLIANCE WITH OTHER INSTRUMENTS. ANNIE'S is not in
violation of any provision of its Certificate of Incorporation or Bylaws, as
amended, and in effect on and as of the Closing Date, and is not in breach of or
in default under, in any material respect, any contract, agreement or instrument
to which it is a party, or to which it or its property is subject, or any
judgment, decree, order, statue, rule or regulation to which ANNIE'S is subject
(collectively the "Instruments"), a breach or violation of which would have a
material adverse affect on ANNIE'S condition (financial or otherwise) or
operations. No event has occurred which with the passage of time or the giving
of notice, or both, would constitute a breach or violation under any of the
Instruments which would have a material affect on ANNIE'S condition (financial
or otherwise) or operations. The execution, delivery and performance of and
compliance with this Agreement, will not result in a breach or violation of or
constitute a material default under any of the Instruments, except such
violations, breaches or defaults which singularly or in the aggregate would not
(a) have a material adverse effect on ANNIE'S business, operations, property, or
condition (financial or otherwise); (b) require any consent or waiver (which has
not been obtained) under any of the Instruments, or (c) result in the creation
of a pledge, lien, encumbrance, or charge on any of ANNIE'S properties or assets
under any of the Instruments. To the best of ANNIE'S knowledge, none of its
employees is in violation of any term of any employment contract, patent, or
other proprietary information disclosure agreement or other contract or
agreement relating to the right of any such employee to be employed by ANNIE'S
because of the nature of the business conducted or proposed to be conducted by
ANNIE'S or for any reason, and to ANNIE'S knowledge the continued employment by
ANNIE'S of its present employees will not result in any such violation.
SECTION 3.16. LEGAL PROCEEDINGS, BUSINESS, ETC.
(a) There is no legal, equitable, administrative or arbitration
action, suit, proceeding or known investigation pending or, to
ANNIE'S best knowledge, threatened against or affecting
ANNIE'S, or any of its respective assets which, if adversely
determined, could materially and adversely affect the
business, the operations or properties, or the condition
(financial or otherwise) of ANNIE'S or the business,
operations or properties, or the condition, financial or
otherwise, of ANNIE'S immediately after the Closing Date, or
the ability of ANNIE'S to consummate the transaction
contemplated hereby. There is no judgment, decree, injunction,
rule or order of any court, governmental department,
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commission, agency, instrumentality or arbitrator outstanding
against ANNIE'S and, to ANNIE'S best knowledge, there is no
basis for any action, suit, proceeding or investigation
against ANNIE'S that would have a material adverse effect. No
such action, suit, proceeding, known investigation, judgment,
decree, injunction, rule or order arises out of the employment
of labor, equal employment opportunity, occupational health
and safety, economic stabilization or environmental
protection. ANNIE'S is not in default with respect to any
order, injunction or decree of any court or governmental
department, commission, board or agency, and no such order,
injunction or decree is now in effect which restrains the
operations or the use of the properties belonging to ANNIE'S.
(b) ANNIE'S has no knowledge or belief that (i) there is pending
or threatened any claim or litigation against or affecting the
right of ANNIE'S to produce, manufacture, sell, or use any
product, process, method, substance, part, or other material
presently produced, manufactured, sold, or used or planned to
be produced, manufactured, sold or used by ANNIE'S in
connection with its operations, (ii) there exists, or is
pending or planed, any patent, invention, device, application,
tradename, trademark, servicemark or principle or any statute,
rule, law, regulation, standard, or code that would materially
adversely affect ANNIE'S condition (financial or otherwise) or
operations.
SECTION 3.17. CERTAIN TRANSACTIONS. Except as specifically set forth on
the Disclosure Schedule, there are no loans, leases, customer or supplier
arrangements, or agreements or other transactions between ANNIE'S and any of its
officers, directors, or shareholders, other than transactions made in the
ordinary course of business. To the best of ANNIE'S knowledge (without any
investigation undertaken or implied), except as set forth on the Disclosure
Schedule, none of its officers or directors, or their respective spouses, owns
directly or indirectly, individually or collectively, a material interest in any
entity that is a competitor, customer or supplier of, or has any existing
contractual relationship with ANNIE'S.
SECTION 3.18. ISSUANCE TAXES. All taxes imposed by law on the issuance
or delivery of the shares of ANNIE'S shall have been fully paid, and all laws
imposing such taxes shall have been fully complied with before the Closing Date.
SECTION 3.19. CONSENTS AND APPROVALS. No consent, approval, order,
authorization or registration, qualification, designation, declaration, or
filing with any federal, state, or local governmental authority on ANNIE'S part
is required in connection with the valid execution, delivery and performance of
this Agreement; the issuance of the Series A Convertible Preferred Stock, or the
consummation of any other transaction contemplated by this Agreement, except the
filing of the restated and amended Certificate of Incorporation and the
Certificate of Designation with the Secretary of State of Delaware and
registration and qualification (or filings with respect to exemptions from
qualification) under the federal securities laws and applicable Delaware laws,
which
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qualifications will have been obtained and will be effective on the Closing Date
unless adequate exemptions from such qualifications are then available.
SECTION 3.20. EMPLOYEE BENEFIT PLANS. Except as set forth on the
Disclosure Schedule, ANNIE'S has no "employee benefit plans" as that term is
defined in the Employee Retirement Income Security Act of 1974, as amended, or
any similar plans.
SECTION 3.21. INSURANCE. ANNIE'S has the fire and casualty insurance
policies identified on the Disclosure Schedule. To ANNIE'S best knowledge, such
insurance polices are adequate to protect ANNIE'S and its financial condition
against the risks involved in its business as conducted and proposed to be
conducted.
SECTION 3.22. ENVIRONMENTAL MATTERS. To the best knowledge of ANNIE'S,
ANNIE'S and the premises it occupies are in full compliance with all applicable
environmental laws or regulations, orders and directives of Federal, state or
local governments or other governmental authorities. The term "environmental
laws or regulations" includes regulatory programs involving (1) air emissions,
(2) liquid discharges to streams, ponds, ditches or other surface waters, (3)
liquid discharges to ground, (4) liquid discharges to publicly-owned treatment
works, (5) disposal of solid and/or other hazardous wastes, (6) marking,
maintenance and/or removal of any electrical equipment containing PCBs, (7)
manufacture and/or construction (including renovation) involving asbestos
materials, (8) activities in or adjacent to fresh water wetlands, flood hazard
areas, coastal zone management areas and/or historic preservation areas, (9)
registration, operation, testing and/or removal or replacement of storage tanks
for petroleum products and/or hazardous substances, and (10) emergency, planning
and community right-to-know laws, including submission of hazardous substance
inventory information to Federal, state or local authorities.
SECTION 3.23. CONTRACTS. Except as disclosed on the Disclosure
Schedule, ANNIE'S currently has no existing contract, obligation, plan,
commitment, or other arrangement (written or oral) of any material nature,
including, without limitation, the following:
(a) Employment, bonus, pension, profit sharing, deferred
compensation, stock bonus, retirement, stock option, stock
purchase, phantom stock or similar plans, including agreement
evidencing rights to purchase ANNIE'S securities or any
agreement among shareholders and ANNIE'S.
(b) Loan agreements, notes, indentures, or instruments, relating
to or evidencing indebtedness for borrowed money, or
mortgaging, pledging, or granting or creating a lien, security
interest or other encumbrance on any of ANNIE'S property or
any agreement or instrument evidencing any guaranty by ANNIE'S
of payment or performance by any other person;
12
(c) Agreements with dealers, sales, representatives, brokers, or
other distributors, jobbers, advertisers, or sales agencies;
(d) Agreements with any labor union or collective bargaining
organization or other labor agreements;
(e) Material contracts or series of contracts with the same person
for the furnishing or purchase of machinery, equipment, goods
or services, including without limitation agreements with
equipment lessors, processors, and subcontractors and
consultants;
(f) Joint venture contracts, arrangements or other agreements
involving a sharing of profits or expenses;
(g) Agreement limiting ANNIE'S ability to compete in any line of
business in any geographic area or with any person;
(h) Agreements providing for disposition of ANNIE'S business,
assets, or shares, agreements for merger or consolidation, or
letters of intent with respect to any of the forgoing; and
(i) Letters of intent or agreement with respect to the acquisition
of the business, assets, or shares of any other business.
ANNIE'S has complied with all the material provisions of all contracts,
obligations, agreements, plans, arrangements, and commitments set forth on the
Disclosure Schedule, and is not in default in any material respect under any of
them.
SECTION 4. REPRESENTATIONS AND WARRANTIES BY HOLDINGS.
HOLIDINGS hereby represents and warrants to ANNIE'S, as of the date
hereof and as of the Closing Date, as follows:
SECTION 4.1. ORGANIZATION. HOLDINGS is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
HOLDINGS has all necessary power and authority to own, use and transfer its
properties and assets and to transact the business now being conducted. HOLDINGS
is duly qualified as a foreign corporation in the State of Delaware. Its
Employer Identification Number (tax identification number) is [_______________].
HOLDINGS is an "accredited investor" as that term is defined under Rule 501
promulgated under the Securities Act of 1933, as amended.
SECTION 4.2. AUTHORIZATION. HOLDINGS has all necessary corporate power
and authority to enter into this Agreement. Once this Agreement has been duly
executed and delivered by HOLDINGS it will constitute a legal, binding and valid
obligation of
13
HOLDINGS, enforceable against HOLDINGS in accordance with its terms, except as
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to creditor's rights generally or by equitable principles (whether
considered in an action at law or equity.)
SECTION 4.3. CONSENTS AND APPROVALS. No consent, approval,
authorization of, or declaration, filing or registration with, any governmental
or regulatory authority, or any other person or entity is required to be made or
obtained by HOLDINGS in connection with the execution, delivery and performance
of this Agreement.
SECTION 4.4. NO CONFLICT OR VIOLATION. Neither the execution and
delivery of this Agreement nor the consummation of the transactions contemplated
hereby will result in a violation of or a conflict with any provision of the
Certificate of Incorporation or a breach thereof, or a default under, of any
term or provision of any contract, agreement, indebtedness, lease, commitment,
license, franchise, permit, authorization, or concession to which HOLDINGS is a
party, which breach or default would have a material adverse effect on the
business or financial condition of HOLDINGS or its ability to consummate the
transaction contemplated hereby.
SECTION 4.5. CONSENTS. HOLDINGS acknowledges that it shall have the
responsibility to take all action required to obtain prior to Closing, all
consents, approval and agreements, if any, which may be required to be obtained
by HOLDINGS to consummate the transactions provided for in this Agreement.
SECTION 4.6. FOLLOW-ON GOAL. HOLDINGS confirms its intention and goal
to explore available opportunities to obtain a listing of the common stock of
ANNIE'S on NASDAQ or other exchanges or to undertake a transaction or plan which
would provide to ANNIE'S existing shareholders, especially its public
shareholders, more liquidity for such stock than now exists.
SECTION 5. INVESETMENT REPRESENTATIONS AND RESTRICITONS.
SECTION 5.1. RESTRICTED SECURITIES. HOLDINGS understands that the
securities it is purchasing hereunder (or will acquire upon conversion of the
Series A Preferred Stock or upon exercise of the Warrant) are characterized as
restricted securities under Federal laws because they are being acquired from
ANNIE'S in a transaction not involving a public offering and that under such
laws and applicable regulations the securities may be resold without
registration under Federal securities laws only in certain limited
circumstances. HOLDINGS represents, and in entering into this Agreement ANNIE'S
understands, that HOLDINGS is acquiring the Note, the Warrant and the Series A
Convertible Preferred Stock for the purpose of investment and not with a view to
the distribution thereof, and that HOLDINGS has no present intention of selling,
negotiating or otherwise disposing of the Note, the Warrant or the Series A
Convertible Preferred Stock; it being understood, however, that the disposition
of HOLDINGS' property will at all times be and remain within its control.
14
SECTION 5.2. EXEMPT TRANSACTION. The issuance of the Series A
Convertible Preferred Stock as contemplated by this Agreement (and the Common
Stock that would be issued upon conversion of the Series A Preferred Stock or
upon exercise of the Warrant) is exempt from the registration requirements of
the Securities Xxx 0000 as amended and the registration and qualification
requirements of applicable California securities laws, and neither ANNIE'S nor
anyone acting on its behalf will take any action that would cause the loss of
such exemptions.
SECTION 5.3. NOT FOREIGN INVESTOR. HOLDINGS is not a foreign investor
as defined by the United States Department of Commerce, and therefore HOLDINGS
will not be required to file any Form BE-13 with the Department of Commerce.
SECTION 5.4. LEGENDS. It is further understood by HOLDINGS that the
certificates evidencing the securities and/or shares of stock into which they
are convertible may be endorsed with the following legends (or their substantial
equivalents):
a) FEDERAL LEGEND: THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, (THE "ACT") AND ARE "RESTRICTED SECURITIES" AS
DEFINED IN RULE 144 PROMULGATED UNDER THE ACT. THE SECURITIES
MAY NOT BE SOLD OR OFFERED FOR SALE OR OTHERWISE DISTRIBUTED
EXCEPT (I) IN CONJUNCTION WITH AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SHARES UNDER THE ACT, (II) IN COMPLIANCE
WITH RULE 144, OR (III) UNDER AN OPINION OF COUNSEL,
SATISFACTORY TO ANNIE'S HOMEGROWN, INC. THAT SUCH REGISTRATION
OR COMPLIANCE IS NOT REQUIRED AS TO SAID SALE, OFFER OR
DISTRIBUTION.
(B) OTHER LEGENDS: Any other legends required by applicable state
blue sky laws.
SECTION 6. [INTENTIONALLY OMITTED]
SECTION 7. [INTENTIONALLY OMITTED]
SECTION 8. FURTHER CONVENANTS.
SECTION 8.1. EXPENSES OF THE PARTIES. Except as otherwise expressly
provided in this Agreement, each party shall pay all of its expenses incurred in
connection with the preparation, negotiation, authorization and consummation of
this Agreement and the transactions contemplated hereby, including all fees and
expenses of agents, representatives, legal counsel and accountants.
15
SECTION 8.2. [INTENTIONALLY OMITTED].
SECTION 8.3. FURTHER ASSURANCES. Each party shall cooperate with the
other, take such further action, and execute and deliver such further documents,
as may be reasonably requested by any other party in order to carry out the
terms and purposes of this Agreement.
SECTION 8.4. [INTENTIONALLY OMITTED]
SECTION 9. CONDITIONS TO PERFORMANCE OBLIGATIONS.
SECTION 9.1. CONDITIONS TO HOLDINGS' PERFORMANCE OBLIGATIONS. The
obligations of HOLDINGS to complete the transactions provided for herein shall
be subject, at its election, to satisfaction on or before the Closing Date of
each of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES: All representations and
warranties of ANNIE'S contained in this Agreement shall be
true and correct in all respects as of the date hereof and as
of the Closing Date as though made on and as of the Closing
Date, and HOLDINGS shall have received a certificate to that
effect, dated the Closing Date, signed by the Chief Operating
Officer and the Chief Financial Officer of ANNIE'S;
(b) PRE-CLOSING OBLIGATIONS: ANNIE'S shall have performed all
obligations required to be performed by it hereunder, the
performance of which has not been waived by HOLDINGS, and
HOLDINGS shall have received a certificate to that effect,
dated the Closing Date, signed by the Chief Operating Officer
and the Chief Financial Officer of ANNIE'S;
(c) DUE AUTHORIZATION: ANNIE'S execution and delivery of this
Agreement, its compliance with the provisions hereof and the
consummation of all of the transactions contemplated hereby
shall have been duly and validly authorized by all necessary
action on the part of ANNIE'S and HOLDINGS shall have received
a duly certified copy of all actions taken by ANNIE'S Board of
Directors effecting the same;
(d) CONSENTS BY ANNIE'S: All required notices, filings, consents,
waivers and approvals shall have been given, made or obtained,
as the case may be, by ANNIE'S, and HOLDINGS shall have
received a true copy of each thereof;
(e) CONSENTS BY HOLDINGS: All notices, filings, consents, waivers
and approvals required to be obtained by HOLDINGS shall have
been given, made or obtained, as the case may be, by HOLDINGS;
16
(f) NO BAR: There shall not be in effect any judgment, decree or
order of, or position taken by, any court or administrative
body of competent jurisdiction, nor shall there have been any
action, suit, proceeding or known investigation instituted or
threatened, nor shall any law or regulation have been enacted
or any action taken thereunder, which would, in HOLDINGS'
reasonable judgment, restrain or prohibit, make illegal, or
subject HOLDINGS to material damage as a result of, the
consummation of the transactions contemplated hereby;
(g) [INTENTIONALLY OMITTED].
(h) CONSENT OF HOLDERS OF OTHER SECURITIES: On or prior to the
Closing Date, ANNIE'S shall have obtained from the holders of
a majority of the outstanding Common Stock approval of the
Amendment to ANNIE'S Certificate of Incorporation necessary to
create and issue the Series A Convertible Preferred Stock.
(i) SATISFACTORY PROCEEDINGS: All proceedings taken in connection
with the transactions contemplated by this Agreement, and all
documents necessary to the consummation thereof, shall be
satisfactory in form and substance to HOLDINGS, and HOLDINGS
shall have received a copy (executed or certified as may be
appropriate) of all legal documents or proceedings taken in
connection with the consummation of said transactions.
(j) STOCK COLLAR: HOLDINGS shall have entered into binding Stock
Collar agreements covering a minimum of 2,577,691 shares of
Common Stock of ANNIE'S.
(k) OTHER MATTERS: HOLDINGS shall have received such other
instruments and documents as shall have been reasonably
requested by counsel to HOLDINGS on or before the Closing
Date.
(l) IRREVOCABLE PROXIES. HOLDINGS shall have received irrevocable
proxies on a minimum of 2,577,691 shares of Common Stock of
ANNIE'S.
SECTION 9.2. CONDITIONS TO THE OBLIGATIONS OF ANNIE'S. The obligations
of ANNIE'S to complete the transactions provided for herein shall be subject, at
its election, to satisfaction on or before the Closing Date of each of the
following conditions:
(a) REPRESENTATIONS AND WARRANTIES: All representations and
warranties of HOLDINGS contained in this Agreement shall be
true and correct in all respects as of the date hereof and as
of the Closing Date as though made on and as of the Closing
Date (except as may be otherwise provided in this Agreement),
and ANNIE'S shall have received a certificate to that
17
effect, dated the Closing Date, signed by the chief executive
officer and the chief financial officer of HOLDINGS;
(b) PRE-CLOSING OBLIGATIONS: HOLDINGS shall have performed all
obligations required to be performed by it hereunder, the
performance of which has not been waived by ANNIE'S, and
ANNIE'S shall have received a certificate to that effect,
dated the Closing Date, signed by the chief executive officer
and the chief financial officer of HOLDINGS;
(c) DUE AUTHORIZATION: HOLDINGS execution and delivery of this
Agreement, its compliance with the provisions hereof and the
consummation of all of the transactions contemplated hereby
shall have been duly and validly authorized by all necessary
action on the part of HOLDINGS, and ANNIE'S shall have
received a duly certified copy of all actions taken by
HOLDINGS chief executive officer and the chief financial
officer effecting the same;
(d) CONSENTS BY ANNIE'S: All notices, filings, consents, waivers
and approvals required to be obtained by ANNIE'S shall have
been given, made or obtained, as the case may be, by ANNIE'S;
(e) CONSENTS BY HOLDINGS: All notices, filings, consents, waivers
and approvals required to be obtained shall have been given,
made or obtained, as the case may be, by HOLDINGS, and ANNIE'S
shall have received a true copy of each thereof;
(f) NO BAR: There shall not be in effect any judgment, decree or
order of, or position taken by, any court or administrative
body of competent jurisdiction, nor shall there have been any
action, suit, proceeding or known investigation instituted or
threatened, nor shall any law or regulation have been enacted
or any action taken thereunder, which would, in ANNIE'S
reasonable judgment, restrain or prohibit, make illegal, or
subject ANNIE'S to material damage as a result of, the
consummation of the transactions contemplated hereby;
(g) OTHER MATTERS: ANNIE'S shall have received such other
instruments and documents as shall have been reasonably
requested by ANNIE'S on or before the Closing Date.
(h) FAIRNESS OPINION: If requested by the Board of Directors of
ANNIE'S, the receipt of a fairness opinion satisfactory to
that Board regarding the valuation of the securities being
issued by ANNIE'S pursuant to this Agreement.
SECTION 10. EVENTS OF DEFAULT AND REMEDIES THEREFOR.
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SECTION 10.1. EVENTS OF DEFAULT. Any one or more of the following shall
constitute a default under this Agreement:
(a) [Intentionally Omitted]
(b) Default in the observance or performance of any other covenant
or provision of this Agreement which is not remedied within 30
days;
(c) Default shall occur in the observance or performance of the
agreements and undertakings of ANNIE'S set forth in the
Warrant or any such Warrant shall be held by a court of
competent jurisdiction to be invalid or unenforceable in any
material respect;
(d) ANNIE'S becomes insolvent or bankrupt, is generally not paying
its debts as they become due or makes an assignment for the
benefit of creditors, or ANNIE'S causes or suffers an order
for relief to be entered with respect to it under applicable
Federal bankruptcy law or applies for or consents to the
appointment of a custodian, trustee or receiver for ANNIE'S
for the major part of the property of ANNIE'S, and such
condition continues for a period of 90 days;
(e) A custodian, liquidator, trustee or receiver is appointed for
ANNIE'S or for the major part of the property of ANNIE'S and
is not discharged within 30 days after such appointment; or
(f) Bankruptcy, reorganization, arrangement or insolvency
proceedings, or other proceedings for relief under any
bankruptcy or similar law or laws for the relief of debtors,
are instituted by or against ANNIE'S or any Subsidiary and, if
instituted against ANNIE'S are consented to or are not
dismissed within 60 days after such institution.
SECTION 10.2. [INTENTIONALLY OMITTED].
SECTION 11. MISCELLANEOUS.
SECTION 11.1. EXPENSES; STAMP TAX INDEMNITY. ANNIE'S will pay all of
its expenses in connection with this Agreement and the transactions contemplated
hereby. ANNIE'S will pay and save HOLDINGS harmless against any and all
liability with respect to stamp and other taxes, if any, which may be payable in
connection with the execution and delivery of this Agreement, the Note, the
Warrant or Series A Convertible Preferred Stock, whether or not the Note,
Warrant or Series A Convertible Preferred Stock are then outstanding.
SECTION 11.2. POWERS AND RIGHTS NOT WAIVED; REMEDIES CUMULATIVE. No
delay or failure on the part of HOLDINGS in the exercise of any power or right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of
19
the same preclude any other or further exercise thereof, or the exercise of any
other power or right, and the rights and remedies of HOLDINGS are cumulative and
no waiver or consent, given or extended to ANNIE'S, shall extend to or affect
any obligation or right not expressly waived or consented to.
SECTION 11.3. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon ANNIE'S and its successors and assigns and shall inure to the benefit of
and be binding upon HOLDINGS and its successors and assigns.
SECTION 11.4. SURVIVAL OF COVENANTS AND REPRESENTATIONS. All covenants,
representations and warranties made by ANNIE'S herein and in any certificates
delivered pursuant hereto, whether or not in connection with the Closing Date,
will survive the closing and the delivery of this Agreement, the Note, the
Warrant and the Series A Convertible Preferred Stock, for a period of nine
months from the Closing Date.
SECTION 11.5. SEVERABILITY. Should any part of this Agreement for any
reason be declared invalid or unenforceable, such decision will not affect the
validity or unenforceability of any remaining portion, which remaining portion
will remain in force and effect as if this Agreement had been executed with the
invalid portion thereof eliminated and it is hereby declared the intention of
the parties hereto that they would have executed the remaining portion of this
Agreement without including therein any such part or portion which may, for any
reason, be hereafter declared invalid or unenforceable.
SECTION 11.6. GOVERNING LAW. This Agreement and the Notes, Warrant, and
Series A Convertible Preferred Stock issued and sold hereunder shall be governed
by and construed in accordance with Delaware law.
SECTION 11.7. [INTENTIONALLY OMITTED]
SECTION 11.8. CAPTIONS. The descriptive headings of the various
Sections or parts of this Agreement are for convenience only and shall not
affect the meaning or construction of any of the provisions hereof.
SECTION 11.9. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each executed counterpart constituting air original but
all together only one agreement.
SECTION 11.10. ENTIRE AGREEMENT. This Agreement and the other documents
delivered under it constitute the full and entire understanding and agreement
between the parties with respect to the subject matter of this Agreement and
such other documents, and supercede all previous agreement and understandings,
written or oral, concerning the subject matter of this Agreement and such other
documents.
20
SECTION 11.11. AMENDMENT AND WAIVER. This Agreement may be amended only
by a writing executed by each of the parties hereto. No waiver of compliance
with any provision or condition hereof, and no consent provided for herein,
shall be effective unless evidenced by an instrument in writing duly executed by
the party sought to be charged therewith. No failure on the part of any party to
exercise, and no delay in exercising, any of its rights hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise by any party of
any right preclude any other or future exercise thereof or the exercise of any
other right.
SECTION 11.12. TAX CONSEQUENCES. The parties each acknowledge and agree
that they have sought independent advice as to the tax consequences of the
transactions contemplated hereby, and that no party hereto makes any
representation or warranty, express or implied, to any other party with respect
thereto.
SECTION 11.13. ASSIGNMENT. No party shall assign or attempt to assign
any of its rights or delegate any of its obligations under this Agreement
without the prior written consent of each of the other parties hereto.
SECTION 11.14. NOTICES, ETC. Each notice, report, demand, waiver,
consent and other communication required or permitted to be given hereunder
shall be in writing and shall be effective upon receipt. All notices shall be
sent (a) by registered or certified first-class mail, postage prepaid and return
receipt requested, (b) by Federal Express or comparable overnight courier, or
(c) by telecopier, addressed as follows:
If to HOLDINGS: Xxxx Xxxxxxx
000 "X" Xxxxxx
Xxxxx, XX 00000
with a copy to: Xxxxxxxxx, Xxxxxxx & Xxxxxxx
000 Xxxxxx Xxxxxx
Xxxx, XX 00000
Attn: C. Xxxxxxx Xxxxx, Esq.
Telecopier: (000) 000-0000
If to ANNIE'S: Annie's Homegrown, Inc.
000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: President
with a required copy to: Xxxxxxxxxxx & Xxxxxxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
21
SECTION 11.15. ATTORNEYS' FEES. In the event any party incurs costs in
enforcing this Agreement, the prevailing party in any subsequent litigation
shall be entitled to full reimbursement of their expenses of enforcement
including attorneys' fees. This right shall survive and not merge into any
judgment obtained by a party hereto.
SECTION 11.16. NO THIRD PARTY BENEFICIARY. The provisions of this
Agreement are for the benefit only of the parties hereto, and no third party may
seek to enforce, or benefit from, these provisions. The parties specifically
disavow any desire or intention to create any third party beneficiary hereunder,
and specifically declare that no person or entity, except for the parties and
their successors-in-interest, shall have the right hereunder, nor any right or
enforcement hereof.
SECTION 11.17. NO RELIANCE ON OTHER INFORMATION. Except for the
representations and warranties in this Agreement, neither HOLDINGS nor ANNIE'S
or other person acting for them makes any other representation or warranty,
express or implied, with respect to the transactions contemplated by the
Agreement, whether oral or written, whether by HOLDINGS or ANNIE'S or any of
their representatives or agents or any other person.
WHEREAS the parties enter into this Agreement on the date set forth above.
ANNIE'S HOMEGROWN, INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Title: President
-----------------------
HOMEGROWN HOLDINGS CORP.
By: /s/ Xxxx Xxxxxxx
---------------------------
Title: President
-----------------------
22
