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EXHIBIT 10.6.1
E-Z SERVE
Final December 1, 1994
AGREEMENT
BETWEEN
XXXXXX COMPANIES, INC.
AND
E-Z SERVE CONVENIENCE STORES, INC.
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Final December 1, 1994
TABLE OF CONTENTS
Page
----
1. Purchase And Sale Of Stock 1
2. Representations And Warranties 3
3. Covenants And Agreements 18
4. Closing 22
5. Severance Provisions 33
6. Tax Matters 37
7. Environmental 40
8. Termination 44
9. Indemnification 46
10. General Provisions 52
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EXHIBITS
1.2 Time Saver Non-Property Assets & Liabilities
2.1(a)(iii) Exceptions to State Qualifications
2.1(a)(iii)(A) List of each jurisdiction that Time Saver and Delight are licensed or qualified
to do business as a foreign corporation
2.1(a)(v) Missing approvals, licenses and permits to conduct business
2.1(a)(vi) Violations from execution and delivery
2.1(a)(vii) Time Saver and Delight Articles of Incorporation and bylaws
2.1(b) Outstanding options, rights, etc.
2.1(c) Owned investments, corporations, etc.
2.1(d) Time Saver and Delight Officers and Directors
2.1(f) Time Saver Liabilities since 1/2/94
2.1(g) Time Saver and Delight Agreements with Officers, Directors,
Employees Consultants and Agents
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2.1(h) Time Saver and Delight employee benefits, programs, etc.
2.1(i) Time Saver and Delight employee compensation, bonus, pension, profit
sharing/retirement plan and collective-bargaining agreements
2.1(j)(i) Time Saver and Delight property subject to tax liens
2.1(j)(ii) Time Saver and Delight federal, state, and local tax returns since 1990
2.1(k) Time Saver and Delight violations or defaults - laws or regulations
2.1(l) Time Saver and Delight claims or court actions
2.1(m) Time Saver and Delight mortgage defaults
2.1(n) Title Exceptions
2.1(n)(i) Assignments of leases of real or personal property
2.1(n)(ii) Time Saver and Delight legal descriptions and surveys for each
parcel real property owned in fee
2.1(p)(i) Time Saver store list - owned, leased, and franchised
2.1(p)(ii) Time Saver equipment
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2.1(q) Violations of laws, etc.
2.1(r)(i) Time Saver and Delight material contracts/agreements
2.1(r)(ii) Non-Compete Agreements
2.1(s) Time Saver and Delight accounts and notes receivable
2.1(t)(i) Time Saver letters of credit/powers of attorney
2.1(t)(ii) Time Saver powers of attorney (governmental agencies)
2.1(u) Hazardous Materials Releases
2.1(v)(i) Discharged Liens
2.1(v)(ii) Dividends, etc.
2.1(v)(iii) Cancelled debts, claims, etc.
2.1(v)(iv) Extraordinary transactions
2.1(v)(v) Material adverse change in financial condition
2.1(v)(vi) Damage, destruction, etc.
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2.1(v)(vii) Time Saver and Delight Intellectual Property
2.1(w) Employee Benefit Plans-Failures to Report/Contribute
2.2(b) E-Z suits, etc.
4.3(b) Shareholder Opinion of Counsel
4.3(b)(vi) Litigation and governmental investigations
4.4(a) Wiring Instructions
4.4(b) E-Z Opinion of Counsel
5.1(i) Time Saver Severance Policy
5.1(ii) E-Z Severance Policy
5.2 Employment Agreements
5.6 Employees with Wage Continuation - To be Attached at Closing
7.2(a)(i) Time Saver locations, owned or leased
7.2(a)(ii) UST Sites
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7.2(a)(iii) Release, Qualified and Non-Qualified UST Sites
7.2(c) Time Saver Expenditures
7.2(d) Non-Release Sites
7.2(e) UST Sites containing non-operating underground storage tanks
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LIST OF DEFINED TERMS
"Claims " - as defined on Page 49
"Closing Financial Statements" - as defined on Page 3
"Code" - as defined on Page 8
"Confidentiality Agreement" - as defined on Page 20
"Damages" - as defined on Page 46
"Delight" - as defined on Page 3
"Eligible Employee" - as defined on Page 33
"Employee Benefit Plans" - as defined on Page 7
"Environmental Claim" - as defined on Page 13
"Environmental Law" - as defined on Page 14
"ERISA" - as defined on Page 7
"E-Z" - as defined on Page 1
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"E-Z Indemnitees" - as defined on Page 46
"E-Z Severance Payment" - as defined on Page 33
"Financing" - as defined on Page 24
"Financial Statements" - as defined on Page 6
"401(k) Plan" - as defined on Page 34
"Fund" - as defined on Page 40
"GAAP" - as defined on Page 3
"Hazardous Materials" - as defined on Page 14
"H-S-R" - as defined on Page 19
"Material Adverse Effect" - as defined on Page 4
"Non-Property Capital" - as defined on Page 2
"Non-Qualified UST Sites - as defined on Page 41
"Non-Release Sites" - as defined on Page 42
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"Profit Sharing Plan" - as defined on Page 34
"Purchase Price" - as defined on Page 2
"Qualifying Remediation" - as defined on Page 41
"Qualified UST Sites - as defined on Page 41
"Releases" - as defined on Page 14
"Release UST Sites" - as defined on Page 41
"Remediation" - as defined on Page 40
"Severance Period" - as defined on Page 33
"Shareholder" - as defined on Page 1
"Shareholder Indemnitees" - as defined on Page 48
"Shareholder Severance" - as defined on Page 33
"Stock" - as defined on Page 1
"Study" - as defined on Page 40
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"Time Saver" - as defined on Page 1
"UST Sites" - as defined on Page 41
"Warehouse" - as defined on Page 40
"8023-A Statement" - as defined on Page 38
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THIS AGREEMENT, made as of the 2nd day of December, 1994, by and
between XXXXXX COMPANIES, INC. ("Shareholder"), a Kansas corporation with its
principal place of business at 000 Xxxx 00xx Xxxxxx, Xxxxxxxxxx, Xxxxxx, and
E-Z Serve Convenience Stores, Inc. ("E-Z"), a Delaware corporation with its
principal place of business at 0000 Xxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxx,
Xxxxx.
WHEREAS, Shareholder is the sole shareholder of Time Saver Stores,
Inc., a Kansas corporation ("Time Saver");
WHEREAS, E-Z, subject to the terms and conditions of this Agreement,
desires to acquire all of the issued and outstanding capital stock (the
"Stock") of Time Saver; and
WHEREAS, the Shareholder, subject to the terms and conditions of this
Agreement, desires to sell the Stock to E-Z;
NOW, THEREFORE, in consideration of the mutual covenants,
representations and warranties contained herein, the parties agree as follows:
1. PURCHASE AND SALE OF STOCK
1.1 Subject to the terms and conditions of this Agreement, E-Z
shall purchase from Shareholder, and Shareholder shall sell, transfer and
deliver to E-Z all right, title, and interest in and to all of the issued and
outstanding shares of Stock, free and clear of all liens, pledges, claims,
interests, and encumbrances of any kind, on the Closing Date, as
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hereinafter defined in Article 4. The Shareholder will pay or provide for
payment of all applicable stock transfer taxes.
1.2 The total purchase price (the "Purchase Price") to be
paid for the Stock shall be Twenty Nine Million Nine Hundred Sixty Thousand
Dollars ($29,960,000). Subject to the terms and conditions of this Agreement,
E-Z shall, on the Closing Date, deliver the Purchase Price by wire transfer of
funds to the Shareholder in accordance with Section 4.4.
The Purchase Price shall be subject to adjustment (i) upward
by an amount equal to the amount by which Time Saver's Non-Property Capital, as
defined below, exceeds $0, or (ii) downward by an amount equal to the amount
by which the Non-Property Capital is less than $0. For purposes of this
Agreement, the "Non-Property Capital" shall be equal to Time Saver's
non-property assets evidenced by the accounts listed on Exhibit 1.2 attached
hereto minus Time Saver's non-property liabilities evidenced by the accounts
listed on Exhibit 1.2 attached hereto, with all such accounts determined in the
same manner as the Closing Financial Statements, as defined below.
If the Purchase Price is required to be adjusted pursuant to
this section, Shareholder or E-Z, as the case may be, shall, within 15 business
days after (i) the date on which copies of the Closing Financial Statements
shall have been delivered to Shareholder and E-Z, or (ii) the final
determination pursuant to Section 10.8 of the adjustment to the Purchase Price,
pay to the other party, by wire transfer of funds, an amount equal to the total
Purchase Price adjustment; provided, however, that to the extent the parties
agree on an amount that is due pursuant to this Section 1.2, such amount shall
be paid inaccordance with clause (i) above and any disputed amount shall be
paid in accordance
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with clause (ii) above.
The Time Saver financial statements, including a balance sheet
and statement of income, for the partial year ended as of the Closing Date (the
"Closing Financial Statements"), shall be prepared by Shareholder within thirty
(30) days after the Closing Date, in accordance with generally accepted
accounting principles ("GAAP") applied on a basis consistent with the basis on
which the Financial Statements (as defined at Section 2.1(e)) were prepared
(including usual and customary adjustments of the kind ordinarily made at
year-end) and shall be consolidated to include the financial affairs of Time
Saver's wholly-owned subsidiary, Delight Distributing and Sales Co., Inc.
("Delight").
2. REPRESENTATIONS AND WARRANTIES
2.1 The Shareholder represents and warrants to E-Z that each
of the following will be true and correct as of the date hereof and as of the
Closing Date:
(a) (i) Time Saver is a corporation duly organized, validly
existing and in good standing under the laws of the State of Kansas. Delight
is a corporation duly organized, validly existing and in good standing under
the laws of the State of Louisiana.
(ii) Each of Time Saver and Delight has the corporate
power and authority to own, lease and operate its properties and to carry on
its business as now being conducted in each jurisdiction wherein such
properties are located and such business is currently conducted;
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(iii) Except as described on Exhibit 2.1(a)(iii), each of
Time Saver and Delight is duly qualified as a foreign and domestic corporation,
respectively, and is in good standing in every jurisdiction in which the nature
of its business or of its properties makes such qualification necessary.
Exhibit 2.1(a)(iii)(A) contains a list of each jurisdiction in which Time Saver
and Delight are duly licensed or qualified to do business as a foreign
corporation;
(iv) The Shareholder has the corporate power and authority
to execute and deliver this Agreement, to consummate the transactions
contemplated hereby and to perform all the terms and conditions hereof to be
performed by it. This Agreement constitutes the valid and binding obligation
of the Shareholder enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting enforcement of creditors' rights
generally and by general principles of equity (whether applied in a proceeding
at law or in equity);
(v) Except as otherwise disclosed on Exhibit 2.1(a)(v),
Time Saver and Delight have received and maintain all approvals, licenses, and
permits of federal, state and local authorities necessary for them to conduct
their respective business as currently conducted, except to the extent that the
failure to receive same will not have a material adverse effect on the
business, assets, operations, properties, prospects or condition of Time Saver
and Delight, taken as a whole ("Material Adverse Effect");
(vi) Except as listed on Exhibit 2.1(a)(vi), the execution
and delivery of this Agreement and the related documents required herein and
the consummation of the transaction contemplated hereby will not violate any
provision of, or result in the
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acceleration of any obligation under, the Articles of Incorporation, any bylaw,
mortgage, loan, lien, lease, agreement, indenture, order, arbitration, award,
judgment or decree to which Time Saver or Delight is a party or by which Time
Saver or Delight is bound and will not violate any other restriction of any
kind or character to which Time Saver or Delight is subject, except to the
extent that same will not result in a Material Adverse Effect; and
(vii) the certified copies of Time Saver's and Delight's
Articles of Incorporation and bylaws attached as Exhibit 2.1(a)(vii) are true,
complete and correct, have not been further amended or repealed, and are in
full force and effect.
(b) The total authorized capital stock of Time Saver consists
of One Hundred (100) common shares, $100 par value per share. Of the
authorized shares of Time Saver, One Hundred (100) shares are issued and
outstanding and are owned beneficially and of record by Shareholder. The total
authorized capital stock of Delight consists of One Thousand (1,000) common
shares, no par value per share. Of the authorized shares of Delight, Nine
Hundred Ten (910) shares are issued and outstanding and are owned beneficially
and of record by Time Saver.
All such issued and outstanding shares of Time Saver and
Delight are legally and validly issued, fully paid and non-assessable. Except
as listed on Exhibit 2.1(b), there are no outstanding options, subscription
rights, warrants, preemptive rights or commitments of any kind, which restrict,
or grant rights with respect to, the Stock, the issued and outstanding capital
stock of Delight, or the authorized but unissued capital stock of Time Saver or
Delight or which create any right to purchase or which impose or
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grant any lien, encumbrance, or claim with respect to any of such shares.
Shareholder has full legal right to sell, assign and transfer the Stock to E-Z
and will, upon delivery of the Stock to E-Z pursuant to the terms hereof,
transfer to E-Z good and valid title to the Stock free and clear of all liens,
security interests, claims, charges, encumbrances, rights, options to purchase,
voting trusts or other voting agreements and calls and commitments of every
kind affecting the Stock.
(c) Except as otherwise listed on Exhibit 2.1(c), Time Saver
does not own, directly or indirectly, any investment, whether debt or equity,
in any corporation, partnership, business, trust or other entity and is not a
party to any partnership or joint venture or similar arrangement.
(d) The minute books of Time Saver and Delight contain
substantially complete and accurate records of all material meetings,
proceedings and actions of their respective shareholders and board of
directors. Such minute books will be delivered to E-Z on or before the Closing
Date. Attached hereto as Exhibit 2.1(d) is a complete list of the officers and
directors of Time Saver and Delight as of the date hereof.
(e) The Shareholder (i) has furnished to E-Z the unaudited
consolidated financial statements, including balance sheets and the related
statements of income, of Time Saver for the two consecutive fiscal years ended
January 3, 1993, and January 2, 1994, and the interim unaudited consolidated
financial statements of Time Saver for the nine month period ended October 2,
1994 (collectively, the "Financial Statements"), and (ii) has made available
such other financial reports and examinations as are reasonably necessary to
show the financial condition and results of operation of Time Saver.
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(f) Except as otherwise listed on Exhibit 2.1(f), since
January 2, 1994, neither Time Saver nor Delight has incurred any liabilities or
obligations of any kind (whether absolute, accrued, contingent or otherwise and
whether due or to become due) not incurred in the ordinary course of business,
consistent with past practices. The Financial Statements fairly present the
consolidated financial position and results of operation of Time Saver as of
and for the periods indicated, in conformity with GAAP applied on a consistent
basis, except as otherwise disclosed therein. Except to the extent reflected
in or reserved against in the Financial Statements, Time Saver did not, as of
the date of such Financial Statements, have any liabilities or obligations of
any nature, either accrued, absolute, contingent or otherwise, including,
without limitation, tax liabilities due or accruable, and no basis exists for
the assertion of any such liability or obligation against Time Saver which was
not fully reflected or reserved against in such Financial Statements or
disclosed in Exhibit 2.1(f), other than those which would not result in a
Material Adverse Effect.
(g) Exhibit 2.1(g) lists all agreements with any officers,
directors, employees, consultants and agents of Time Saver or Delight not
terminable at the will of Time Saver or Delight.
(h) Except as disclosed on Exhibit 2.1(h), neither Time Saver
nor Delight has any employee benefit plans, policies, programs and arrangements
and all related contracts, agreements and other descriptions thereof with
respect to the employee benefits provided to the employees of Time Saver or
Delight prior to the Closing Date (collectively, the "Employee Benefit Plans")
that are subject to Title IV of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or the minimum funding obligations of
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Section 412 of the Internal Revenue Code of 1986, as amended (the "Code"); and
neither Time Saver, Delight, nor any entity required to be aggregated therewith
pursuant to Section 414(b) or (c) of the Code has any liability under Title IV
of ERISA or under Section 412(f) or 412(n) of the Code.
(i) Time Saver and Delight employees do not participate in
any deferred compensation, bonus, pension, profit sharing or retirement plan,
or collective bargaining contracts, except as described on Exhibit 2.1(i).
Copies of all such agreements and plans have been furnished to E-Z.
(j) Time Saver and Delight have paid or made provision for
payment of all taxes due or levied against them by the federal, state,
municipal or other taxing authorities, including but not limited to corporation
taxes, franchise taxes, federal, state and local income taxes, stamp, excise
and excess profits taxes, federal unemployment and insurance taxes, capital
stock taxes, and all taxes levied by any taxing authority.
Except as described in Exhibit 2.1(j)(i), none of Time Saver's
or Delight's property, or the Stock to be acquired hereby, is subject to any
lien for the payment of any taxes of Time Saver or Delight currently due and
payable.
All tax reports and returns required by any applicable law or
governmental regulation have been duly filed by Time Saver or Delight, as
applicable. Attached as Exhibit 2.1(j)(ii) is a true and complete list of all
federal, state and local tax returns, including state capital stock tax
returns, of Time Saver and Delight which have been filed since January 1, 1990,
identifying the returns which, as of the Closing Date, have been or
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are being audited or for which notice of audit has been received. Such returns
or copies thereof have been provided to E-Z.
There are no tax deficiencies now being asserted against Time
Saver or Delight.
(k) Except as otherwise disclosed on Exhibit 2.1(k), neither
Time Saver nor Delight is in violation of or default under any law or
regulation, including all laws and regulations governing labor relations and
employment, nor is Time Saver or Delight under any order of any court or
federal, state, municipal or other governmental body other than those which
would not result in a Material Adverse Effect. Each of Time Saver and Delight
has all governmental permits, licenses, and other authorizations, including all
licenses for the sale of alcoholic beverages, necessary to the conduct of its
business in the manner and in the areas in which such business is at present
conducted. No action or proceeding contemplating any revocation or suspension
of such permits, licenses or authorizations is pending or, to the best
knowledge of the Shareholder, threatened except those which would not result in
a Material Adverse Effect.
(l) Neither Time Saver nor Delight is a party to any action
in any court or before any governmental board, agency or body, and there are
not any claims in law or at equity against Time Saver or Delight and, to the
best knowledge of the Shareholder, none are threatened, except as listed on
Exhibit 2.1(l) or those which would not result in a Material Adverse Effect.
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(m) Except as listed on Exhibit 2.1(m), neither Time Saver
nor Delight is in default under, and no condition exists that, with notice or
lapse of time or both, would constitute a default under (i) any mortgage, loan
agreement, indenture, evidence of indebtedness or other instrument evidencing
borrowed money to which it or any of its properties are bound, (ii) any
judgment, order, or injunction of any court, arbitrator, or governmental
agency, or (iii) any other agreement, except for such defaults and conditions
that, individually or in the aggregate, will not result in a Material Adverse
Effect.
(n) Time Saver has possession, as owner in possession or as
lessee (or franchises through a franchise arrangement), of not less than 116
operating convenience store locations.
On the Closing Date, each of Time Saver and Delight will have
good and marketable title to all of the properties and assets, real and
personal, tangible and intangible, which it purports to own, subject to no
mortgage, pledge, lien, conditional sales agreement, encumbrance, or charge
other than those of record or which would not unreasonably interfere with the
use of the property in the manner as being conducted by Time Saver or Delight
as of the date hereof, except as otherwise shown on Exhibits 2.1(n).
Each real or personal property lease of Time Saver or Delight
is in writing, is in full force and effect, and, to the best of Shareholder's
knowledge, constitutes the legal, valid and binding obligation of the
respective parties thereto, enforceable in accordance with its terms, except as
such enforceability may be limited or affected by applicable bankruptcy,
reorganization, insolvency, moratorium, or other laws relating to or affecting
generally the enforcement of creditors' rights and by equitable principles.
Except as listed
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on Exhibit 2.1(n)(i), no lease of real or personal property has been assigned
by Time Saver or Delight. The Shareholder is not aware of any default in any
mortgage or deed of trust on premises leased by Time Saver or Delight.
Each real property owned in fee by Time Saver or Delight on
the Closing Date will be free and clear from any mortgage, pledge, lien,
conditional sale contract, encumbrance, easement, covenant, restriction, right
of occupancy, or charge, other than those reflected in Exhibit 2.1(n) and those
of record or which would not unreasonably interfere with the use of the
property in the manner as being conducted by Time Saver or Delight as of the
date hereof.
Exhibit 2.1(n)(ii) sets forth complete and accurate copies of
all legal descriptions and surveys (to the extent available) for each parcel
of real property owned in fee by Time Saver or Delight as of the Closing Date.
(o) Each of the buildings and the equipment of Time Saver and
Delight is maintained as of the date hereof, and will be as of the Closing
Date, in substantial conformity with each lease, if applicable, and in
substantial compliance with all applicable laws, ordinances, regulations,
building, zoning and other similar codes and laws except to the extent that
such failure to comply would not result in a Material Adverse Effect.
(p) Exhibit 2.1(p)(i) lists all of the store locations owned
or leased by Time Saver and identifies whether each location is owned or
leased, and whether it is franchised. Lists of all the equipment owned by
Time Saver and Delight have been or will be provided to E-Z at least ten (10)
days prior to the Closing Date. Such lists contain a
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general representation of the equipment so owned but are not warranted to be
complete or accurate. Lists of all the equipment leased by Time Saver and
Delight are attached hereto as Exhibit 2.1(p)(ii).
(q) Each of Time Saver and Delight is conducting its business
in substantial conformity with all applicable federal, state and municipal
laws, ordinances and regulations and with all rules and regulations of all
governmental agencies and authorities having jurisdiction over such business
except where such noncompliance would not result in a Material Adverse Effect,
or except as disclosed on Exhibit 2.1(q).
(r) Attached as Exhibit 2.1(r)(i) is a complete and accurate
list as of the Closing Date of all material contracts and agreements (other
than the store and equipment leases referred to in Section 2.1(p)) to which
Time Saver or Delight is a party or by which it or any of its property is
bound. A contract or agreement shall be deemed material if the annual amounts
owed by or owing to Time Saver or Delight exceed $25,000.00. To the best of
Shareholder's knowledge, each such contract or agreement is in full force and
effect and constitutes the legal, valid and binding obligation of the
respective parties thereto enforceable in accordance with its terms, except as
such enforceability may be limited or affected by applicable bankruptcy,
reorganization, insolvency, moratorium, or other laws relating to or affecting
generally the enforcement of creditors' rights and by equitable principles.
Neither Time Saver nor Delight has been notified that it is in breach in any
material respect under any such instrument. To the best of Shareholder's
knowledge, no party other than Time Saver or Delight is in breach of any of the
material provisions thereof, and there has not occurred any event which with
the passage of time or the giving of notice would constitute such a breach.
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Except as contained in contracts, leases, or agreements
delivered to E-Z under this Agreement or as disclosed in Exhibit 2.1(r)(ii),
neither Time Saver nor Delight is a party to any contract or agreement limiting
its freedom to engage in any line of business or to compete with any person or
entity.
(s) Exhibit 2.1(s) lists, as of October 2, 1994, the accounts
receivable (in the form of an aged account balance) and notes receivable of
Time Saver and Delight.
(t) Except as otherwise disclosed on Exhibit 2.1(t)(i), Time
Saver and Delight do not have any outstanding letters of credit or powers of
attorney, except routine powers of attorney relating to representation before
governmental agencies which are disclosed on Exhibit 2.1(t)(ii).
(u) (1) For this Section 2.1(u), the following definitions
shall apply:
Environmental Claim shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
orders, notices of noncompliance or violations, investigations or proceedings
relating in any way to any Environmental Law (for purposes of this definition,
"Claims") or any permit issued under any such Environmental Law, including
without limitation (i) any and all Claims by governmental or regulatory
authorities or private parties for enforcement, cleanup, removal, remedial or
other actions for damages pursuant to any applicable Environmental Law and (ii)
any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting
from Hazardous
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Materials or arising from alleged injury or threat of injury to health, safety
or the environment.
Environmental Law shall mean any federal, state or local
statute, law, rule, regulation, ordinance, code, policy or rule of common law
now in effect and in each case as amended and any judicial or administrative
interpretation thereof, including any judicial or administrative order, consent
decree, guidance policy or judgment, relating to Hazardous Materials, the
environment or health relating to or arising from environmental conditions.
Hazardous Materials shall mean any chemicals, materials or
substances defined as or included in the definition of "hazardous substances,"
"hazardous wastes," "hazardous materials," "extremely hazardous wastes,"
"restricted hazardous wastes," "toxic substances," "toxic pollutants,"
"contaminants" or "pollutants," or words of similar import under any applicable
Environmental Law.
(2) Except as disclosed on Exhibit 2.1(u), except as
contemplated by Article 7 hereof and except where it would not have a Material
Adverse Effect, (A) Hazardous Materials have not been disposed, discharged,
injected, spilled, leaked, leached, dumped, emitted, escaped, emptied, allowed
to seep, placed and the like, into or upon any land or water or air, or
otherwise allowed to enter into the environment (collectively, "Releases") by
Time Saver and Delight, their authorized agents or their independent
contractors (including suppliers) on the real property owned or leased by Time
Saver and Delight or any property adjoining such real property except such
Releases which do not violate any Environmental Laws, (B) each of Time Saver
and Delight is in compliance with all applicable Environmental Laws and the
requirements of any permits issued under such
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Environmental Laws with respect to such real property, (C) there are no pending
or, to the best knowledge of the Shareholder, threatened Environmental Claims
against Time Saver and Delight or such real property, or (D) there are no facts
or circumstances, conditions, pre-existing conditions or occurrences on such
real property known to the Shareholder, Time Saver or Delight that could
reasonably be anticipated (x) to form the basis of an Environmental Claim
against either of Time Saver and Delight or such real property, or (y) to cause
such real property to be subject to any restrictions on the ownership,
occupancy, use or transferability of such real property under any Environmental
Law. .
(v) From the date of the latest Financial Statements
furnished to E-Z to the Closing Date:
(i) Except as otherwise disclosed on Exhibit 2.1(v)(i),
neither Time Saver nor Delight has discharged or satisfied any lien or
encumbrance or paid any obligation or liability (absolute or contingent) other
than current liabilities shown on such Financial Statements and current
liabilities incurred since the date thereof in the ordinary course of business;
(ii) Except as otherwise disclosed on Exhibit 2.1(v)(ii),
Time Saver has not declared or made or agreed to declare or make any payment of
dividends or distributions of any assets of any kind whatsoever to Shareholder,
or purchased or redeemed, or agreed to purchase or redeem, any of Time Saver's
capital stock;
(iii) Except as otherwise disclosed on Exhibit 2.1(v)(iii),
neither Time Saver nor Delight has cancelled or agreed to cancel any debts or
claims, except in the ordinary
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E-Z SERVE
Final December 1, 1994
course of business, or suffered any extraordinary losses or waived any
extraordinary rights or values;
(iv) Except as otherwise disclosed on Exhibit 2.1(v)(iv),
neither Time Saver nor Delight has entered into any transaction, terminated or
materially amended any contract or agreement or incurred any liability, other
than in the ordinary course of business;
(v) Except as otherwise disclosed on Exhibit 2.1(v)(v), there
has not been any material and adverse change in the financial condition,
assets, liabilities, income, business or prospects, taken as a whole, of Time
Saver or Delight; and
(vi) Except as listed on Exhibit 2.1(v)(vi), there has not
been any damage, destruction or loss, whether or not covered by insurance,
materially and adversely affecting the property or business of Time Saver or
Delight.
(vii) To the best knowledge of the Shareholder and except as
otherwise disclosed on Exhibit 2.1(v)(vii), all trade names, trademarks,
copyrights, patents and applications, if any, whether currently issued or
pending, currently used by each of Time Saver and Delight are its property free
and clear of all encumbrances, and each of Time Saver and Delight has the right
to bring actions for the infringement thereof. Exhibit 2.1(v)(vii) lists all
such intellectual property and, where applicable, identifies the registration
of each.
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E-Z SERVE
Final December 1, 1994
(viii) Copies of the leases, which have been or will be
furnished, prior to the Closing Date, to E-Z are complete and, except as have
been provided to or requested by E-Z, there are no amendments or modifications
thereto, or separate agreements, which change the terms and conditions thereof.
Time Saver is not in default in any material respect under any such lease, and
there has not occurred any event which with the passage of time or the giving
of notice or both would constitute such a default.
(w) Except as disclosed on Exhibit 2.1(w), Time Saver and
Delight have made the contributions required and due to be paid under the
Employee Benefit Plans, satisfied all reporting requirements to federal, state
and local governments and governmental agencies and to all Employee Benefit
Plan participants and beneficiaries, and satisfied the applicable requirements
under Part 6 of Title I of ERISA and Section 4980B of the Code, except to the
extent that any failure would not result in a Material Adverse Effect.
(x) To Shareholder's knowledge, there is no transaction in
connection with the Employee Benefit Plans which would be subject to either a
civil penalty assessed pursuant to Section 502 of ERISA, a tax imposed by
Section 4975 of the Code or liability for breach of fiduciary responsibility
under XXXXX.
2.2 E-Z represents and warrants to Shareholder, as of the date hereof
and on the Closing Date:
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E-Z SERVE
Final December 1, 1994
(a) The execution of this Agreement by E-Z and the
consummation of the transactions contemplated hereby are duly and validly
authorized by all necessary corporate action.
(b) Except as set forth in Exhibit 2.2(b), there is no suit,
action, legal, administrative or other proceeding or investigation, contract,
indenture, mortgage, or loan agreement relating to E-Z which adversely affects
E- Z's right or ability to consummate the transactions contemplated by this
Agreement.
(c) E-Z is purchasing the Stock for its own account for
investment only and not with a view to any further resale or distribution
thereof.
(d) This Agreement constitutes the valid and binding
agreement of E-Z, enforceable in accordance with its terms, except as
enforceability may be limited or affected by applicable bankruptcy,
reorganization, insolvency, moratorium, or other laws relating to or affecting
generally the enforcement of creditors' rights and by equitable principles.
3. COVENANTS AND AGREEMENTS
3.1 Shareholder agrees, from and after the date hereof and to
the Closing Date:
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E-Z SERVE
Final December 1, 1994
(a) To make all governmental filings required, including
those required under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of 1976,
as amended (the "H-S-R"), and promptly to comply with all requests for
additional information that may be made in connection therewith.
(b) To continue to operate the business of Time Saver and
Delight in the ordinary course of business in substantially the same manner as
prior to the date hereof.
(c) To notify E-Z of any change in circumstance of which its
senior management becomes aware between the date hereof and the Closing Date
which would result in a Material Adverse Effect.
(d) Except as otherwise provided in this Agreement, not to
dispose of the assets of Time Saver or Delight except in the ordinary course of
business or consistent with past practices.
3.2 The Shareholder will afford to E-Z and its authorized
representatives reasonable access to Time Saver's and Delight's financial,
title, tax, corporate and legal materials and operating data and information
available as of the date hereof and which becomes available to the Shareholder
at any time prior to the Closing Date, and will furnish to E-Z such other
information as it may reasonably request, unless any such access and disclosure
would violate the terms of any agreement to which the Shareholder, Time Saver
or Delight is bound or any applicable law or regulation. The Shareholder will
use its reasonable business efforts to secure all requisite consents for the
examination by E-Z and its representatives of all information covered by
confidentiality agreements. The
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E-Z SERVE
Final December 1, 1994
Shareholder will cause Time Saver and Delight to allow E-Z access to and
consultation with the lawyers, accountants, and other professionals employed by
or used by Time Saver and Delight for all purposes under this Agreement. Any
such consultation and access to information and data shall occur under
circumstances appropriate to maintain intact the attorney-client privilege as
to privileged communications and attorney work product. Additionally, the
Shareholder will afford to E-Z and its authorized representatives reasonable
access to the books and records of the Shareholder insofar as they relate to
property, accounting and tax matters of Time Saver and Delight. Until the
Closing Date, the confidentiality of any data or information so acquired shall
be maintained by E-Z and its representatives pursuant to the terms of that
certain Letter Agreement between E-Z and Shareholder dated September 29, 1994
(the "Confidentiality Agreement"). Further, the Shareholder will afford to E-Z
and its authorized representatives reasonable access from the date hereof until
the Closing Date, during normal business hours, to Time Saver's and Delight's
assets and properties; provided that such access shall be at the sole cost,
expense and risk of E-Z. The Shareholder acknowledges that E-Z has had access
and will continue to have access to the senior management of Time Saver and
Delight and that each of such members of senior management is entitled to
reveal to E-Z and its representatives information concerning Time Saver and
Delight that may be deemed confidential and proprietary.
3.3 The Shareholder and E-Z shall use their reasonable
business efforts to (i) obtain all approvals and consents required by or
necessary for the transactions contemplated by this Agreement, and (ii) ensure
that all of the conditions to the obligations of E-Z and the Shareholder
contained in Article 4 are satisfied timely.
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E-Z SERVE
Final December 1, 1994
3.4 After the Closing Date, the Shareholder shall not,
directly or indirectly, use or provide to, or shall not permit any affiliate,
directly or indirectly, to use or provide to any other person any non-public
information concerning the business or operations (financial or other) of Time
Saver and Delight, except as on the advice of counsel is required in
governmental filings or judicial, administrative or arbitration proceedings.
3.5 The Shareholder shall give E-Z prompt notice if at any
time on or prior to the Closing Date there is a change in any state of facts,
or there is the occurrence, nonoccurrence or existence of any event subsequent
to the date of this Agreement, which change or event is known to any executive
officer of the Shareholder and which would make any representation and warranty
(including the information set forth in the Exhibits) made by the Shareholder
to E-Z not true or correct in any material respect, it being the intention of
the parties to this Agreement that the Shareholder shall engage in a continuous
disclosure process from the date of this Agreement through the Closing Date.
3.6 Shareholder will provide to E-Z reasonable information
systems support for fiscal year 1994 as necessary in preparation of W-2
statements for Time Saver and Delight employees. In addition, Shareholder will
furnish to E-Z, for a period of ninety (90) days from the Closing Date,
reasonable processing support for financial systems and warehouse systems in
order to ease the transition of processing data from Shareholder's systems to
E-Z's systems.
3.7 E-Z agrees, from and after the date hereof and to the
Closing Date:
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E-Z SERVE
Final December 1, 1994
(a) To make all governmental filings required, including
those required under the H-S-R, and promptly to comply with all requests for
additional information that may be made in connection therewith.
(b) To treat all information received from Shareholder, Time
Saver or Delight, prior to or after the date of this Agreement, as strictly
confidential and to use same only in furtherance of the transactions
contemplated by this Agreement.
(c) To use its reasonable best efforts to obtain the
Financing, as hereinafter defined.
4. CLOSING
This transaction shall be closed at the offices of counsel for
E-Z in Houston, Texas, at 10:00 a.m., or as soon thereafter as practicable, on
December 16, 1994, or such other place, date or time as the parties hereto
shall mutually agree (the "Closing Date").
4.1 The obligation of E-Z to proceed with the closing
contemplated hereby is subject to the satisfaction on or prior to the Closing
Date of all of the following conditions, any one or more of which may be waived
in writing, in whole or in part, by E-Z:
(a) The Shareholder shall have complied in all material
respects with each of its covenants and agreements contained herein and each of
its representations and warranties contained in this Agreement shall be deemed
to have been made again at and as of the Closing Date and shall then be true
and correct in all material respects.
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E-Z SERVE
Final December 1, 1994
(b) E-Z shall have received a certificate, dated as of the
Closing Date, of an executive officer of the Shareholder certifying as to the
matters specified in Section 4.1(a) hereof.
(c) All necessary filings with and consents of any
governmental authority or agency required for the consummation of the
transactions contemplated in this Agreement shall have been made and obtained,
all waiting periods with respect to filings made with governmental authorities
in contemplation of the consummation of the transactions described herein shall
have expired or been terminated, and no action or proceeding before a court or
any other governmental agency or body shall have been instituted or threatened
to restrain or prohibit E-Z's acquisition of the Stock and no governmental
agency or body shall have taken any other action as a result of which the
management of E-Z reasonably deems it inadvisable to proceed with the
transactions hereunder.
(d) The Shareholder shall have delivered such resignations
effective as of the Closing Date of any officer or director of Time Saver and
Xxxxxxx as may be requested by E-Z.
(e) The Shareholder shall have, as of the Closing Date,
caused Time Saver and Delight to cancel the authority of each person who is
listed on Exhibit 2.1(g) hereto to draw checks on or withdraw funds from any of
the bank accounts maintained by Time Saver and Delight, except for any person
designated by E-Z in writing prior to the Closing Date, and shall provide to
E-Z evidence of said cancellation.
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E-Z SERVE
Final December 1, 1994
(f) All actions, proceedings, instruments and documents
required to carry out this Agreement or incidental hereto and all other related
legal matters shall have been approved by counsel to E-Z and such counsel shall
have been furnished with all such documents and instruments as it shall have
reasonably requested in connection with the transactions contemplated herein.
(g) No suit, action or other proceeding shall be pending in
which there is sought any remedy to restrain, enjoin or otherwise prevent the
consummation of this Agreement or the transactions in connection herewith.
(h) E-Z shall have received evidence of notice of the
termination of Time Saver's contract for money orders with Travelers Express as
of a date designated in writing by E-Z.
(i) Shareholder shall have approved the assignment of the
lease between Xxxxxx Real Estate Co., Inc., as lessor, and Time Saver, as
lessee, for the Warehouse, as hereinafter defined, if requested by E-Z, subject
to Time Saver remaining primarily liable under said lease.
(j) E-Z Serve shall have received financing for the
purchase of the Stock on terms reasonably acceptable to E-Z (the "Financing").
(k) The Shareholder shall have contributed all long term
debt payable by Time Saver and Delight to the Shareholder or any affiliate
thereof and all other accounts payable by Time Saver and Delight to the
Shareholder or any affiliate thereof to the capital
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E-Z SERVE
Final December 1, 1994
of Time Saver or Delight, as applicable, as additional paid in capital, and all
other intercompany accounts between the Shareholder or any affiliate thereof on
the one hand and Time Saver and Delight on the other hand, and all deferred
income taxes of Time Saver and Delight, shall be eliminated by contribution to
capital, dividend or payment.
(l) The Shareholder shall have caused to be contributed to
Time Saver the real property owned by the Shareholder or its subsidiaries in
fee that is associated with Time Saver or Delight locations and shall have
delivered executed special warranty deeds for such real property, subject to
all matters affecting title existing on the date of acquisition of such real
property by Xxxxxx Real Estate Co., Inc. and any subsequent encumbrances by
Xxxxxx Real Estate Co., Inc., in form and substance reasonably satisfactory to
E-Z.
(m) Shareholder shall have furnished to E-Z copies of surveys
and title insurance policies in Shareholder's possession, for E-Z's review in
addition to any title reports which E-Z may elect to obtain at E-Z's sole cost
and expense. E-Z shall only be entitled to object to matters affecting title
which would unreasonably interfere with the use of the fee properties in the
manner in which the properties are being used as of the date hereof, and by
giving written notice thereof to Shareholder (the "Objection"). Should
Shareholder fail to cure such Objection to E-Z's reasonable satisfaction, which
Shareholder shall in no event be obligated to do, E-Z may terminate this
Agreement pursuant to Article 8 hereof.
(n) Shareholder shall have made the deliveries as set forth
in Section 4.3 below.
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E-Z SERVE
Final December 1, 1994
4.2 The obligation of the Shareholder to proceed with the
Closing contemplated hereby is subject to the satisfaction on or prior to the
Closing Date of all of the following conditions, any one or more of which may
be waived in writing, in whole or in part, by the Shareholder:
(a) E-Z shall have complied in all material respects with
its covenants and agreements contained herein and each of its representations
and warranties contained in this Agreement shall be deemed to have been made
again at and as of the Closing Date and shall then be true in all material
respects.
(b) The Shareholder shall have received a certificate,
dated the Closing Date, of an executive officer of E-Z certifying as to the
matters specified in Section 4.2(a) hereof.
(c) All necessary filings with and consents of any
governmental authority or agency or lessor required for the consummation of the
transactions contemplated in this Agreement shall have been made and obtained,
all waiting periods with respect to filings made with governmental authorities
in contemplation of the consummation of the transactions described herein shall
have expired or been terminated, and no action or proceeding before a court or
any other governmental agency or body shall have been instituted or threatened
to restrain or prohibit E-Z's acquisition of the Stock and no governmental
agency or body shall have taken any other action as a result of which the
management of the Shareholder reasonably deems it inadvisable to proceed with
the transactions hereunder.
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E-Z SERVE
Final December 1, 1994
(d) All actions, proceedings, instruments and documents
required to carry out this Agreement or incidental hereto and all other related
legal matters shall have been approved by counsel to the Shareholder and such
counsel shall have been furnished with all such documents and instruments as it
shall have reasonably requested in connection with the transactions
contemplated herein.
(e) No suit, action or other proceeding shall be pending in
which there is sought any remedy to restrain, enjoin or otherwise prevent the
consummation of this Agreement or the transactions in connection herewith.
(f) E-Z shall have made the deliveries as set forth in
Section 4.4 below.
4.3 On the Closing Date, Shareholder shall deliver to E-Z:
(a) Certificates representing all of the Stock, duly endorsed
in blank, in form suitable for transfer, containing no contractual restrictions
whatsoever, free and clear of all liens, claims and encumbrances.
(b) An opinion of counsel, in the form attached as Exhibit
4.3(b), dated the Closing Date, to the effect that:
(i) Each of Time Saver and Delight is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, and has the corporate power and authority to
own and lease its properties and carry on its business as now conducted;
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E-Z SERVE
Final December 1, 1994
(ii) Each of Time Saver and Delight is duly qualified
as a foreign corporation for the transaction of business and is in good
standing under the laws of each jurisdiction in which it conducts significant
business and in which failure so to qualify would have a material adverse
effect on Time Saver, Delight, their respective business or properties;
(iii) this Agreement constitutes the valid and binding
obligation of the Shareholder and is enforceable in accordance with its terms
except as enforcement thereof may be limited or affected by applicable
bankruptcy, insolvency or other laws relating to or affecting generally the
enforcement of creditors' rights and by equitable principles;
(iv) the total authorized capital stock of Time Saver
consists of 100 common shares, $100 par value per share, of which 100 common
shares are outstanding and the total authorized capital stock of Delight
consists of 1,000 common shares, no par value per share, 910 of which are
outstanding.
(v) the execution and delivery of this Agreement and
the other agreements referenced herein by Shareholder and the performance by
the Shareholder of its obligations thereunder will not violate any provision of
any existing law or regulation applicable to Shareholder, Time Saver or
Delight, or of any order, judgment, award or decree, known to us after due
inquiry, of any court, arbitrator or governmental authority applicable to the
Shareholder, Time Saver or Delight, the Articles of Incorporation or bylaws or,
or any securities issued by, the Shareholder, Time Saver or Delight or any
mortgage, indenture, lease, contract or other agreement, instrument or
undertaking, known to us after due inquiry, to which Shareholder, Time Saver or
Delight is a party or by which
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E-Z SERVE
Final December 1, 1994
the Shareholder, Time Saver or Delight or any of their respective assets is
bound, and will not result in, or require, the creation or imposition of any
lien on any of Time Saver's or Delight's property, assets or revenues pursuant
to the provisions of any such mortgage, indenture, lease, contract or other
agreement, instrument or undertaking.
(vi) except as otherwise stated herein, there is no
litigation or investigation pending or to the best knowledge of such counsel
after due inquiry, threatened, in any court, legislative or administrative body
which if adversely decided would in the aggregate result in any material
adverse change in the condition, financial or otherwise, assets, liabilities,
business or prospects, taken as a whole, of Time Saver or Delight, or which
would cast any question upon Shareholder's title to the Stock, or which
questions the validity of any action taken or to be taken by the Shareholder in
connection with the transactions contemplated hereby, and such counsel does not
know or reasonably has any ground to know, of any basis for any such
litigation, proceeding or investigation;
Attached hereto as Exhibit 4.3(b)(vi) is an accurate list of
all material litigation and governmental investigations pending or, to the best
knowledge of such counsel after due inquiry, threatened, involving any court,
legislative or administrative body, in which Time Saver or Delight is a party.
(vii) Shareholder has full corporate power and authority
to sell and deliver the Stock, and no provision of the Articles of
Incorporation or bylaws of Time Saver or Delight or any other contract or
agreement creates any lien or encumbrance upon or prevents the Shareholder from
delivering to E-Z, in the manner contemplated by this Agreement, good, valid
and merchantable title to the Stock.
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E-Z SERVE
Final December 1, 1994
In rendering such opinions, counsel is authorized to rely, provided
counsel has no reason to question any of the recitals therein, on certificates
of public officials or on certificates or statements of officers of Time Saver,
Delight and Shareholder, with respect to factual matters upon which such
opinion is based, or opinion of other counsel (which other counsel shall be
identified by name) which such counsel shall reasonably consider appropriate
and upon which such counsel's opinion is based.
(c) A certificate of good standing for Time Saver from the
Secretaries of State of Kansas and Louisiana and a certificate of good standing
for Delight from the Secretary of the State of Louisiana dated no more than
ninety (90) days prior to the Closing Date.
(d) Certified copies of all resolutions authorizing the
transactions contemplated hereunder.
(e) All minute books, corporate and other records of Time
Saver and those of Delight and predecessor corporations or other business
entities of each.
4.4 On the Closing Date, E-Z shall deliver to Shareholder:
(a) The Purchase Price, by wire transfer, to Shareholder in
accordance with the wiring instructions attached as Exhibit 4.4(a) hereto.
(b) An opinion of counsel, in the form attached as Exhibit
4.4(b), dated the Closing Date, to the effect that:
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E-Z SERVE
Final December 1, 1994
(i) E-Z is a corporation duly incorporated, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, and has the corporate power and authority to own and lease its
properties and carry on its business as now conducted;
(ii) E-Z is duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of each
jurisdiction in which it conducts significant business and in which failure so
to qualify would have a material adverse effect on E-Z, its business, or
properties;
(iii) this Agreement constitutes the valid and binding
obligation of E-Z and is enforceable in accordance with its terms except as
enforcement thereof may be limited or affected by applicable bankruptcy,
insolvency or other laws relating to or affecting generally the enforcement of
creditors' rights and by equitable principles;
(iv) the execution and delivery of this Agreement and
the other agreements referenced herein by E-Z and the performance by E-Z of its
obligations thereunder will not violate any provision of any existing law or
regulation applicable to E-Z or of any order, judgment, award or decree, known
to us after due inquiry of any court, arbitrator or governmental authority
applicable to E-Z, the Articles of Incorporation or bylaws or any securities
issued by or any mortgage, indenture, lease, contract or other agreement,
instrument or undertaking, known to us after due inquiry, to which E-Z is a
party or by which E-Z or any of its assets is bound, and will not result in, or
require the creation or imposition of any lien on any of E-Z's property, assets
or revenues pursuant to
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E-Z SERVE
Final December 1, 1994
the provisions of any such mortgage, indenture, lease, contract or other
agreement, instrument or undertaking.
(v) except as otherwise stated herein, there is no
litigation or investigation pending or to the best knowledge of such counsel
after due inquiry, threatened, in any court, legislative or administrative body
which if adversely decided would question the validity of any action taken or
to be taken by E-Z in connection with the transactions contemplated hereby, and
such counsel does not know or reasonably has any ground to know, of any basis
for any such litigation, proceeding or investigation;
(vi) E-Z has full corporate power and authority to
consummate the transactions contemplated under this Agreement.
In rendering such opinions, counsel is authorized to rely, provided
counsel has no reason to question any of the recitals therein, on certificates
of public officials or on certificates of E-Z, with respect to factual matters
upon which such opinion is based, or opinion of other counsel (which other
counsel shall be identified by name) which such counsel shall reasonably
consider appropriate and upon which such counsel's opinion is based.
(c) A certificate of good standing for E-Z from the
Secretary of State of Delaware and the State of Louisiana dated no more than
ninety (90) days prior to the Closing Date.
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E-Z SERVE
Final December 1, 1994
(d) Certified copies of all resolutions authorizing the
transactions contemplated hereunder.
5. SEVERANCE/ BENEFITS PROVISIONS
5.1 Prior to the Closing, Shareholder shall terminate or
cause to be terminated any severance policies applicable to the employees of
Time Saver and Delight. After the Closing Date up through March 15, 1995 (the
"Severance Period"), any person who was employed by Time Saver or Delight at
the Closing and whose employment is terminated by E-Z or any affiliate thereof
following the Closing Date (an "Eligible Employee") shall receive severance
benefits from E-Z based upon Time Saver's severance policies in effect prior to
the Closing Date, in accordance with Exhibit 5.1(i) ("E-Z Severance Payment");
provided, that the Eligible Employee shall receive credit for the time employed
with Time Saver or Delight prior to the Closing Date and from the Closing Date
to the date of separation as if such employment was with a member of the
Shareholder consolidated group. During the Severance Period Shareholder shall
reimburse E-Z the amount, if any, by which (i) the E-Z Severance Payment
actually paid (without any deduction for any tax withheld) to the Eligible
Employee exceeds (ii) the severance payment the Eligible Employee would have
received under the severance policies of E-Z in accordance with Exhibit
5.1(ii) hereto (without deduction for any taxes which would have been
withheld), including credit for the time employed with Time Saver or Delight
prior to the Closing Date and from the Closing Date to the Date of separation
as if such employment was with a member of the E-Z consolidated group (such
excess hereinafter referred to as the "Shareholder Severance"). For purposes
of calculating the Shareholder Severance to be reimbursed to E-Z, if any, E-Z
shall notify Shareholder, within ten (10) days
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E-Z SERVE
Final December 1, 1994
of the end of any month during the Severance Period in which an Eligible
Employee has been terminated, of the names of any Eligible Employee whose
employment was terminated during such month, the E-Z Severance Payment, if any,
paid to such Eligible Employee, and the amount which would have been paid under
E-Z's severance policies in effect at the time of separation. Any Shareholder
Severance owed shall be paid by Shareholder to E-Z within fifteen (15) days of
Shareholder's receipt of E-Z's notice.
5.2 Except for such employees covered by employment
agreements listed on Exhibit 5.2, (a) neither Time Saver nor Delight shall have
any obligation to continue the employment of any employee of Time Saver or
Delight on or after the Closing Date, and (b) after the Closing Date any
continued employment of the employees of Time Saver and Delight shall be on
such terms and conditions and, except as otherwise provided in this Agreement
to the contrary, include such benefits as E-Z shall deem appropriate in its
sole and unlimited discretion.
5.3 Time Saver and Delight shall adopt appropriate resolutions
terminating, effective as of the Closing Date, their participation in the
Xxxxxx Companies, Inc. Profit Sharing and Savings Plan ("Profit Sharing Plan")
and the Xxxxxx Companies, Inc. Employees Ownership and Savings Plan ("401(k)
Plan"), collectively, "the Plans" herein. The Plans will be amended
accordingly and will be amended so that each employee of Time Saver or Delight
participating in the Plans effective as of Time Saver and Xxxxxxx's terminating
their participation in the Plans will be 100% vested in his or her account
under the Plans. As soon after the Closing Date as is practical, each employee
of Time Saver or Delight participating in the Profit Sharing Plan shall receive
a distribution of his or her account in accordance with the terms of the Profit
Sharing Plan and applicable law. For those Time
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E-Z SERVE
Final December 1, 1994
Saver and Delight employees participating in the 401(k) Plan, each may
elect a distribution of his or her account any time after the Closing Date
through December 31, 1995, after which time they may elect a distribution only
upon separation of employment from E-Z, in accordance with the terms of the
401(k) Plan and applicable law.
5.4 Effective on the Closing Date and except as provided in
Section 5.6 below, E-Z, Time Saver or Delight, shall provide all employees of
Time Saver and Delight who are employees of Time Saver or Delight immediately
following the Closing Date with welfare and retirement benefits substantially
equivalent to those E-Z provides similarly situated employees hired by E-Z
after the Closing Date; provided, however, that E-Z reserves the right to
modify or terminate such benefits from time to time after the Closing Date.
Each employee of Time Saver or Delight that participates in the employee
benefit plans of E-Z or any affiliate thereof shall be credited under such
employee benefit plans with the same amount of service for vesting purposes
credited to such employees as of the Closing Date under the Employee Benefit
Plans in which they have theretofore participated.
5.5 Effective as of 12:01 a.m. on the Closing Date, Time
Saver and Delight shall terminate participation in Shareholder's health care
and welfare benefit plans and Shareholder shall have no responsibility toward
employees of Time Saver and Delight who are employees of Time Saver or Delight
on or after the Closing Date and their dependents for any hospitalization,
medical, survivor benefits, life insurance, disability or other claims. On or
after the Closing Date, E-Z, Time Saver and Delight shall have no obligations
or
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E-Z SERVE
Final December 1, 1994
liabilities in connection with Xxxxxxxxxxx's health care and welfare benefit
plans. Commencing on the Closing Date, all employees of Time Saver and Delight
who are employees of Time Saver or Delight on or after the Closing Date shall
participate in E-Z's health care and welfare benefit plans, and E-Z shall waive
any pre-existing condition restrictions under its health care plan and shall be
responsible for any hospitalization, medical, survivor benefits, life insurance
or disability claims thereunder made by such employees and their dependents
regardless of when incurred. Notwithstanding the foregoing, for any employee
of Time Saver or Delight or his or her dependent who either (i) for the
twelve-month period immediately preceding the Closing Date filed claims for
medical, hospital or health care expenses on any of Shareholder's, Time
Saver's, or Delight's health care related plans in an aggregate amount of
$10,000 or more over such period, or (ii) for the sixty days immediately
preceding the Closing Date filed claims for medical, hospital or health care
expenses on any of Shareholder's, Time Saver's, or Delight's health care
related plans in an aggregate amount of $5,000 or more over such period,
Shareholder shall reimburse E-Z for all claims for medical, hospital and other
health care expenses of such employees and their dependents paid by E-Z for the
twelve-month period immediately following the Closing Date less any premiums
paid by such employee. E-Z shall notify Shareholder, within ten (10) days of
the end of each month, of the amount paid by E-Z pursuant to this Section 5.5,
if any, and Shareholder shall pay to E-Z such
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amount, if any, owing E-Z under this Section 5.5 within fifteen (15) days of
receipt of E-Z's notice. As soon after the Closing Date as is practicable,
Shareholder shall provide E-Z a list of employees described in (i) and (ii),
above, based upon medical claims incurred and reported through the Closing
Date.
5.6 Notwithstanding anything contained in Section 5.5 to the
contrary, as of the Closing Date, Shareholder will list on Exhibit 5.6 hereto
those employees of Time Saver or Delight who are entitled to wage or salary
related continuation benefits under any of Shareholder's, Time Saver's or
Delight's disability plan(s), and Shareholder covenants and agrees to continue
to provide such employees with the wage or salary related continuation benefits
under and in accordance with Shareholder's disability plan(s) on or after the
Closing Date. On or after the Closing Date, E- Z, Time Saver and Delight shall
have no responsibility, obligation or liability in connection with providing
such employees listed on Exhibit 5.6 any wage or salary related continuation
benefits under E-Z's, Time Saver's or Delight's disability plans.
6. TAX MATTERS
6.1 The parties hereto elect to treat the transactions
covered by this Agreement in accordance with Section 338(h)(10) of the Code,
and shall file such forms as
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are necessary to evidence such election. Any legal, accounting or appraisal
costs related to such election which E-Z, at its sole discretion, chooses to
incur shall be paid for by E-Z.
6.2 Within one hundred twenty days after the Closing Date,
E-Z shall provide to Shareholder all exhibits required by Form 8023-A ("8023-A
Statement") with E-Z's allocation of the Purchase Price among the assets of
Time Saver and Delight (which allocation shall be adopted by the Shareholder).
Thereafter E-Z shall provide to Shareholder any revised copies of the 8023-A
Statement. Any depreciation or amortization tax assessments resulting from
adjustments to asset basis allocations shall be the sole liability of E-Z.
6.3 Shareholder agrees to indemnify E-Z and Time Saver, and
Delight for all liabilities pursuant to Treasury Regulation Section
1.338(h)(10)-1(e) and 1.1502-6, and to indemnify Time Saver and Delight for any
other Taxes that may be imposed on Time Saver or Delight for any period prior
to the Closing Date, to the extent such Taxes have not been reserved for on
Time Saver's balance sheet.
6.4 Shareholder shall, pursuant to Section 47.287.441
Louisiana Revised Statutes of 1950, file the appropriate Louisiana income tax
return and shall be responsible
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for any tax liability resulting from the imposition of the Louisiana income tax
for the period ending on the Closing Date, and shall also be liable for any
other state tax liabilities for Time Saver and Delight attributable to any
taxable period ending on or before the Closing Date.
6.5 Shareholder shall be liable for any state income tax
liability which may be triggered by the execution of this agreement and the
Code Section 338(h)(10) election.
6.6 Immediately prior to the Closing Date, Time Saver and
Delight shall be released from any tax sharing or allocation agreements to
which they may be parties, and following the Closing Date, Time Saver and
Delight shall have no obligations under any such agreements.
6.7 The indemnification rights of Time Saver, Delight, and
E-Z related to Section 338(h)(10) of the Code shall not be subject to the
limitation of Section 9.3 hereof.
7. ENVIRONMENTAL
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7.1 Within fifteen (15) days from the Closing Date, E-Z shall
contract for and commence a Phase II environmental study (the "Study") of the
warehouse located at Xxxxxxxxx Street and Time Saver Avenue, Xxxxxxxxx Xxxxxx,
Louisiana (the "Warehouse"), with an environmental firm and methodology
acceptable to Shareholder. Shareholder shall reimburse E-Z for 50% of the
costs incurred by E-Z or any affiliate thereof in conducting the Study,
provided that any such costs allocable to Shareholder over $15,000 are first
approved in writing by Shareholder. In the event that the Study discloses
environmental contamination for which Time Saver is responsible for remediation
to the extent required by any Environmental Law (hereinafter, "Remediation"),
Shareholder shall reimburse Time Saver for the costs incurred by Time Saver in
completing such Remediation, only to the extent that such costs are not
reimbursable under a local, state or federal statute or fund including, but not
limited to, the Louisiana Underground Storage Tank Trust Fund (hereinafter, a
"Fund"), and only to the extent of the contamination disclosed in the Study.
In addition, as a condition to Shareholder's obligations, E-Z must obtain
Shareholder's written approval, which approval shall not be unreasonably
withheld, of the contractors performing the Remediation, the methodology used
and the cost to be incurred. Remediation conforming to the requirements of the
preceding sentence is hereinafter referred to as "Qualifying Remediation."
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7.2(a) The parties acknowledge that of the locations owned or
leased by Time Saver as of the Closing Date listed on Exhibit 7.2(a)(i), 104
locations contain underground storage tanks (the "UST Sites") as identified on
Exhibit 7.2(a)(ii). Of the UST Sites, Time Saver has reported to the proper
local authorities a Release which has occurred prior to the Closing Date at
those UST Sites (the "Release UST Sites") identified in Exhibit 7.2(a)(iii),
with those UST Sites which have qualified for clean-up pursuant to the
Louisiana Underground Storage Tank Trust Fund, as identified on Exhibit
7.2(a)(iii), (the "Qualified UST Sites") noted with an asterisk. The remaining
Release UST Sites are hereinafter referred to as "Non-Qualified UST Sites", as
defined on Exhibit 7.2(a)(iii).
(b) In the event that it is reasonably practicable to do so,
Xxxxxxxxxxx agrees prior to the Closing Date to remediate the contamination at
the Non-Qualified UST Sites. If such Remediation is not reasonably
practicable, Shareholder shall reimburse Time Saver for the costs incurred by
Time Saver in effecting the Remediation in accordance with Corrective Action
Plans dated April 8, 1993 and August 22, 1994, provided that such remediation
meets the standards for a Qualifying Remediation.
(c) Shareholder shall reimburse Time Saver for the costs
incurred by Time Saver from and after the Closing Date for Remediation of the
Qualified UST Sites, provided
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E-Z SERVE
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that such remediation meets the standards for Qualifying Remediation, and
further provided that the amount of such reimbursement per Qualified UST Site
in no event shall exceed an amount equal to $15,000 less an amount equal to the
sums expended by Time Saver on remediation of such Qualified UST Sites prior to
the Closing Date, as set forth on Exhibit 7.2(c).
(d) With respect to the remaining UST Sites which are not as
of the date hereof Release UST Sites (the "Non-Release Sites") and identified
on Exhibit 7.2(d) hereof, E-Z will cause Time Saver to conduct at its cost
within six (6) months of the Closing Date, such studies as E-Z deems necessary
to determine whether a Release has occurred. E-Z shall notify Shareholder of
any such Release within such six (6) month period. To the extent of any such
identified Release, E-Z shall obtain a determination from the proper local
authorities whether such Non-Release Site qualifies for clean-up under the
applicable state fund. In the event that a Non-Release Site does not so
qualify, Shareholder shall reimburse Time Saver for the costs incurred by Time
Saver from and after the Closing Date to the extent that such costs exceed
$15,000 at any Non-Release Site, provided that such remediation meets the
standards for a Qualifying Remediation, but in no event shall such
reimbursement exceed $35,000 per Non-Release Site.
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(e) The parties acknowledge that the UST Sites identified in
Exhibit 7.2(e) contain non-operating underground storage tanks as of the date
hereof. In the event that it is reasonably practicable to do so, Shareholder
shall remove the tanks and complete Remediation of such sites. If not so
practicable, Xxxxxxxxxxx agrees to reimburse Time Saver for the costs incurred
by Time Saver in removing such tanks and in completing the Remediation of such
sites to the extent of a Release provided that the underground storage tanks
are not operated after the Closing Date, and further provided that such
remediation meets the standards for a Qualifying Remediation.
(f) For a period of five (5) years from the Closing Date,
Shareholder shall indemnify and hold harmless E-Z, in accordance with the
provisions of Article 9, for any third party claims made for Damages related to
any Environmental Claim arising from the property or assets of Time Saver or
Delight prior to the Closing Date. Claims made in writing to Shareholder by
E-Z during the first thirty (30) months from the Closing Date shall be presumed
to relate to pre-Closing Date releases and those made during the second thirty
(30) months from the Closing Date shall be presumed to relate to post-Closing
Date releases. In either case a party may rebut the presumption with evidence
to the contrary.
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(g) Any payments to be made to either party pursuant to
this Article 7 shall be made within 15 business days after written request
therefor.
8. TERMINATION
8.1 This Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time prior to the Closing Date:
(a) by the mutual written consent of E-Z and the
Shareholder;
(b) by E-Z or the Shareholder in writing without liability
on the part of the terminating party (provided the terminating party is not in
material default or breach of this Agreement and has not failed or refused to
close without proper justification hereunder), if the Closing Date shall not
have occurred on or before December 31, 1994;
(c) by either E-Z, on the one hand, or the Shareholder, on
the other hand, in writing, without prejudice to other rights and remedies
which the terminating party may have (provided the terminating party is not in
material default or breach of this Agreement and has not failed or refused to
close without justification hereunder), if the other party
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shall (i) fail to perform its or their covenants or agreements contained herein
required to be performed prior to the Closing Date, or (ii) breach or have
breached any of its or their representations or warranties contained herein; or
(d) by E-Z or Shareholder, respectively, for failure of a
condition precedent to closing set forth in Section 4.1 or 4.2, respectively
For purposes of this Agreement, it is expressly agreed that, subject
to Section 3.6(d) hereof, the failure to obtain the Financing shall not
constitute a default or failure to perform of E-Z.
8.2 Termination of this Agreement pursuant to this Article
8 shall terminate (i) all obligations of the parties hereunder, except for the
obligations under Sections 10.6, 10.10, and 10.12 hereof and (ii) the
obligations set forth in the next succeeding sentence of this Section 8.2, and
(iii) the obligations under the Confidentiality Agreement. Upon any
termination of this Agreement each party hereto will redeliver all documents,
work papers and other material of any other party relating to the transactions
contemplated hereby, and all copies of such materials, whether so obtained
before or after the execution hereof, to the party furnishing the same.
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9. INDEMNIFICATION
9.1 From and after the Closing Date, Shareholder agrees to
indemnify and hold harmless E-Z, Time Saver, Delight, their successors and
assigns, or any parent or subsidiary company of E-Z, Time Saver or Delight, and
any employee, representative, director, officer or agent thereof (collectively,
the "E-Z Indemnitees"), from and against any and all losses, liabilities,
damages, including exemplary damages and penalties, deficiencies, fines,
obligations, costs, judgments, expenses, taxes, and reasonable fees and
expenses of counsel and agents who are not regular employees of such companies,
including reasonable expenses of investigating, defending and prosecuting
litigation (collectively, "Damages") which may be sustained, suffered or
incurred by any of the E-Z Indemnitees, arising from, by reason of, caused by,
or in any way related to (i) the breach or inaccuracy of any covenant,
warranty, agreement or representation made by the Shareholder under this
Agreement or any agreement referenced herein, (ii) the final determination of
liability, deficiency or penalty against Time Saver or Delight incurred prior
to the Closing Date but not reserved for on its Closing Financial Statements in
accordance with GAAP applied on a basis consistent with that applied when
preparing the Financial Statements, (iii) the Shareholder's failure in any
respect to comply with or
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perform any covenant or agreement contained in this Agreement or any agreement
referenced herein, (iv) the business activities of Time Saver or Delight or
Shareholder's ownership of Time Saver or Delight for the period on or prior to
the Closing Date, excluding, however, all obligations or Damages which are
reflected in the Closing Financial Statements, and (v) any Remediation or
Environmental Claim related to the UST Sites identified on Exhibit 7.2(e).
9.2 Notwithstanding any other provision of this section, the
obligations of the Shareholder under this Agreement with respect to any
representation, warranty, covenant or agreement contained in this Agreement (i)
shall be limited to any such representation, warranty, covenant or agreement as
is actually made by Shareholder, and (ii) shall not apply to any such losses,
liabilities, damages, costs, judgments, expenses, taxes and fees that arise out
of the negligence or misconduct of any of the parties otherwise entitled to
indemnification (provided, however, that this clause shall not limit Time
Saver's or Delight's indemnification rights relating to Time Saver's or
Delight's negligent actions occurring prior to the Closing Date).
9.3 No monies shall be due to E-Z under this Article 9 unless
the total of any amounts due exceeds $250,000 and the amount due under this
Agreement shall be the
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amount in excess of $250,000. The determination of whether the total amount
due exceeds $250,000 shall be made on a pre-tax basis; provided that the
foregoing deductible of $250,000 shall not apply to any claims made pursuant to
Section 6.7, Article 7 and Section 9.1(v) .
9.4 Excluding liability assumed by Shareholder pursuant to
Article 8 hereof, E-Z agrees to indemnify, defend and hold harmless
Shareholder, any parent or subsidiary company of Shareholder, any employee or
agent thereof, any current or former shareholder and any former director,
officer, or employee of Time Saver or Delight who served or was employed prior
to the Closing Date (collectively, the "Shareholder Indemnitees") against any
and all Damages which may be sustained, suffered or incurred by any of the
Shareholder Indemnitees, arising from, by reason of, caused by or in any way
related to (i) the breach or inaccuracy of any covenant, warranty, agreement or
representation made by E-Z under this Agreement or any agreement referenced
herein, (ii) E-Z's failure in any respect to comply with or perform any
covenant or agreement contained in this Agreement or any agreement referenced
herein, or (iii) the business activities of Time Saver or Delight or E-Z's
ownership of Time Saver or Delight for the period from and after the Closing
Date.
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9.5 Each indemnified party hereunder agrees that promptly
upon its discovery of facts giving rise to a claim for indemnity under the
provisions of this Agreement, including receipt by it of notice of any demand,
assertion, claim, action or proceeding, judicial or otherwise, by any third
party (such claims for indemnification and third party actions being
collectively referred to herein as the "Claims"), with respect to any matter as
to which it claims to be entitled to indemnity under the provisions of this
Agreement, it will give prompt notice thereof in writing to the indemnifying
party, together with a statement of such information respecting any of the
foregoing as it shall have. Such notice shall include a formal demand for
indemnification under this Agreement.
9.6 The indemnifying party shall be entitled at its cost
and expense to contest and defend by all appropriate legal proceedings any
Claim with respect to which it is called upon to indemnify the indemnified
party under the provisions of this Agreement; provided, that notice of the
intention so to contest shall be delivered by the indemnifying party to the
indemnified party within 20 days from the date of receipt by the indemnifying
party of notice by the indemnified party of the assertion of the Claim. Any
such contest may be conducted in the name and on behalf of the indemnifying
party or the indemnified party as may be appropriate. Such contest shall be
conducted by reputable counsel employed by the indemnifying party, but the
indemnified party shall have the right but not
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the obligation to participate in such proceedings and to be represented by
counsel of its own choosing at its sole cost and expense. The indemnifying
party shall have full authority to determine all action to be taken with
respect thereto; provided, however, that the indemnifying party will not have
the authority to subject the indemnified party to any obligation whatsoever,
other than the performance of purely ministerial tasks or obligations not
involving material expense. If the indemnifying party does not elect to
contest any such Claim, the indemnifying party shall be bound by the result
obtained with respect thereto by the indemnified party. At any time after the
commencement of the defense of any Claim, the indemnifying party may request
the indemnified party to agree in writing to the abandonment of such contest or
to the payment or compromise by the indemnified party of the asserted Claim,
whereupon such action shall be taken unless the indemnified party determines
that the contest should be continued, and so notifies the indemnifying party in
writing within 15 days of such request from the indemnifying party. If the
indemnified party determines that the contest should be continued, the
indemnifying party shall be liable hereunder only to the extent of the amount
that the other party to the contested Claim had agreed unconditionally to
accept in payment or compromise as of the time the indemnifying party made its
request therefor to the indemnified party.
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9.7 If requested by the indemnifying party, the indemnified
party agrees to cooperate with the indemnifying party and its counsel in
contesting any third party Claim that the indemnifying party elects to contest
or, if appropriate, in making any counterclaim against the person asserting the
Claim, or any cross-complaint against any person, and the indemnifying party
will reimburse the indemnified party for any expenses incurred by it in so
cooperating. If the indemnifying party has not chosen to contest a Claim, the
indemnifying party shall cooperate with the indemnified party and its counsel
in contesting any Claim at no cost or expense to the indemnified party.
9.8 The indemnified party agrees to afford the indemnifying
party and its counsel the opportunity to be present at, and to participate in,
conferences with all persons, including governmental authorities, asserting any
Claim against the indemnified party or conferences with representatives of or
counsel for such persons.
9.9 The indemnifying party shall pay to the indemnified
party in immediately available funds any amounts to which the indemnified party
may become entitled by reason of the provisions of this Agreement, such payment
to be made within five days after any such amounts are finally determined
either by mutual agreement of the parties hereto or pursuant to the final
unappealable judgment of a court of competent
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jurisdiction. Each indemnified party agrees to use its best efforts to pursue
any claims related to the event giving rise to the Damages or rights it may
have against any third party which would materially reduce the amount of
Damages otherwise incurred by such indemnified party.
10. GENERAL PROVISIONS
10.1 Unless otherwise expressly provided otherwise to the
contrary in this Agreement, all representations and warranties of the
Shareholder and E-Z made in or pursuant to this Agreement, or any exhibit,
schedule or annex hereto, or in any document or instrument delivered hereunder,
or in connection with the transactions contemplated hereby, shall survive the
Closing Date for a period of one (1) year and shall be fully enforceable for
such period, except to the extent that the party making the claim of such
breach has knowledge acquired before the Closing Date of any fact in variance
with or of any breach of, any representation or warranty.
10.2 Shareholder represents to E-Z and E-Z represents to the
Shareholder, that no broker or finder has been involved in this transaction.
Any commission or fee
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which is or will be due to any broker or lender retained or alleged to have
been retained by any party to this Agreement, will be paid by such party.
10.3 This Agreement, the exhibits attached hereto, and any
letter agreements or other documents executed by the parties on or before the
Closing Date together constitute the entire agreement between the parties and
supersede and cancel any other agreement, representation or communication,
whether oral or written, between the parties relating to the transactions
contemplated herein or the subject matter hereof. All information required or
permitted by this Agreement to be disclosed on an Exhibit shall be deemed to
have been so disclosed if such information appears on any other Exhibit
pertaining to similar information.
10.4 The tables and section headings in this Agreement are
for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
10.5 All notices, requests, demands and other communications
to be given hereunder shall be in writing and shall be deemed to have been duly
given if delivered in person or by courier service requiring acknowledgment of
receipt of delivery or mailed by certified mail, postage prepaid and return
receipt requested, or by telecopier: (i) if to E-Z,
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at 0000 Xxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, Attention Xxxx
Xxxxxx, Senior Vice President, with a copy to Xxxx X. Xxxxxx, Xxxxxxxxx &
Xxxxxxxxx, L.L.P., 000 Xxxxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000; (ii) if to
Shareholder, at 000 Xxxx 00xx Xxxxxx, Xxxxxxxxxx, Xxxxxx 00000, Attention:
Xxxxx Xxxxx, Senior Vice President, with a copy to Xxxxx X. Xxxx, Esq., The
Kroger Co., 0000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000-1100; or to such other
person or address as may be specified from time to time by the person entitled
to receive such notice. Notice given by personal delivery, courier service or
mail shall be effective upon actual receipt. Notice given by telecopier shall
be confirmed by appropriate answer back and shall be effective upon actual
receipt if received during the recipient's normal business hours, or at the
beginning of the recipient's next business day after receipt if not received
during the recipient's normal business hours. All Notices by telecopier shall
be confirmed promptly after transmission in writing by certified mail or
personal delivery.
10.6 All details of this transaction shall be kept
confidential and may be disclosed only to those persons or entities to whom
such disclosures shall be reasonably required. In the event the transactions
contemplated hereby are not consummated, each party shall return to the other
all documents furnished by the other, and all copies thereof shall be likewise
returned.
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10.7 This Agreement may be amended only by a written
instrument executed by the Shareholder and E-Z. The failure of a party to
exercise any right or remedy shall not be deemed or constitute a waiver of such
right or remedy in the future. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provision
hereof (regardless of whether similar), nor shall any such waiver constitute a
continuing waiver unless otherwise expressly provided.
10.8 In the event that either party objects to a matter
disclosed in a financial statement or review prepared pursuant to Section 1.2
or Section 9.1 hereof, it shall advise the other party of such objection in
writing (the "Notice") within thirty (30) days of its receipt of such financial
statement or review, and the parties shall endeavor to resolve the dispute
within thirty (30) days of the Notice. If the parties are unsuccessful in
resolving the dispute, they shall retain the independent public accounting firm
of Ernst & Xxxxx, whose determination of the disputed items, which the parties
shall endeavor to have completed within one hundred twenty (120) days, shall be
binding on the parties. Shareholder and E-Z shall bear equally the cost of the
services provided by such independent public accounting firm.
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10.9 The parties acknowledge that this contract reflects
significant negotiations between the parties and agree that no provision of
this Agreement shall be construed against the party which drafted this
Agreement.
10.10 This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Kansas (excluding any
conflicts-of-law rule or principle that might refer same to the laws of another
jurisdiction).
10.11 This Agreement and the rights and obligations hereunder
shall bind and inure to the benefit of the parties and their respective
personal representatives, heirs, successors and permitted assigns; but neither
this Agreement nor any of the rights, benefits or obligations hereunder shall
be assigned, by operation of law or otherwise, by any party hereto without the
prior written consent of the other party; provided, that E-Z may assign this
Agreement and E-Z's rights hereunder and under other documents entered into in
connection herewith to financial institutions or their affiliates providing any
financing for this transaction or any refinancing thereof; and provided
further, that upon foreclosure or sale in lieu of foreclosure or deed in lieu
of foreclosure or deed of any of the assets of E-Z to its affiliates of E-Z's
rights hereunder or under other documents entered into in connection herewith
or a substantial portion thereof by or to any such financial institutions
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or their affiliates, the representations, warranties, obligations, covenants,
agreements and indemnities of the Shareholder herein and in such other
documents will inure to the benefit of such financial institutions (or their
affiliates) or any such purchaser or grantee. Except for the foregoing,
nothing in this Agreement, express or implied, is intended to confer upon any
person or entity other than the parties hereto and their respective successors
and permitted assigns, any rights, benefits or obligations hereunder.
10.12 Except as otherwise provided in this Agreement, E-Z
and the Shareholder shall each pay their own costs and expenses incurred by
them or on their behalf in connection with this Agreement and the transactions
contemplated hereby.
10.13 If any provision of the Agreement is rendered or
declared illegal or unenforceable by reason of any existing or subsequently
enacted legislation or by decree of a court of last resort, E-Z and the
Shareholder shall promptly meet and negotiate substitute provisions for those
rendered or declared illegal or unenforceable, but all of the remaining
provisions of this Agreement shall remain in full force and effect.
10.14 All references to "E-Z Serve Corporation" in the
headings of the Exhibits hereto shall be deemed to be references to "E-Z Serve
Convenience Stores, Inc."
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10.15 This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto, intending to be
legally bound, have signed this Agreement as of the 2nd day of December, 1994.
XXXXXX COMPANIES, INC.
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Attest: Xxxxx X. Xxxxx
Senior Vice President
/s/ Xxxxxx X. Xxxxxx
-------------------------------
Vice President E-Z SERVE CONVENIENCE STORES, INC.
By: /s/ Xxxx X. Xxxxxx
-----------------------------
Xxxx X. Xxxxxx
Senior Vice President
Attest:
/s/ H. E. Xxxxxxx
-----------------------------------------
Assistant Secretary
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Final December 1, 1994
E-Z SERVE CORPORATION joins in the execution hereof for the purposes of
unconditionally guarantying the performance and undertakings of E-Z under this
Agreement.
E-Z SERVE CORPORATION
By: /s/ Xxxx X. Xxxxxx
------------------------
Xxxx X. Xxxxxx
Senior Vice President
Attest:
/s/ H. E. Xxxxxxx
-------------------------
Assistant Secretary
STATE OF KANSAS
SS.
COUNTY OF
BE IT REMEMBERED, That on this 2nd day of December, 1994, before me, a Notary
Public in and for said County and State, personally appeared Xxxxx X. Xxxxx, and
Xxxxxx X. Xxxxxx, Senior Vice President and Assistant Secretary, respectively,
of XXXXXX COMPANIES, INC., the corporation, whose name is subscribed to and
which executed the foregoing instrument, and for themselves and as such officers
respectively, and for and on behalf of the corporation, acknowledged the signing
and execution of said instrument as their free and voluntary act and deed as
such officers respectively, and the free and voluntary act and deed of said
corporation, for the uses and purposes therein mentioned.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed
my official seal, on the day and year last aforesaid.
/s/ Xxxxx X. Xxxxx
----------------------
Notary Public
My Commission Expires: 12/29/94
59
71
E-Z SERVE
Final December 1, 1994
STATE OF TEXAS
SS.
COUNTY OF XXXXXX
BE IT REMEMBERED, That on this 2nd day of December, 1994, before me, a
Notary Public in and for said County and State, personally appeared Xxxx X.
Xxxxxx, and H.E. Xxxxxxx, Senior Vice President and Assistant Secretary,
respectively, of E-Z Serve Convenience Stores, Inc., the corporation, whose
name is subscribed to and which executed the foregoing instrument, and for
themselves and as such officers respectively, and for and on behalf of the
corporation, acknowledged the signing and execution of said instrument as their
free and voluntary act and deed as such officers respectively, and the free and
voluntary act and deed of said corporation, for the uses and purposes therein
mentioned.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed
my Notarial seal, on the day and year last aforesaid.
XXXXX XXXXXX /s/ Xxxxx Xxxxxx
Notary Public, State of Texas -----------------------
My Commission Expires 05-20-97 Notary Public
My Commission Expires: May 20, 1997
STATE OF TEXAS
SS.
COUNTY OF XXXXXX
BE IT REMEMBERED, That on this 2nd day of December, 1994, before me, a
Notary Public in and for said County and State, personally appeared Xxxx X.
Xxxxxx, and H.E. Xxxxxxx, Senior Vice President and Assistant Secretary,
respectively, of E-Z Serve Corporation, the corporation, whose name is
subscribed to and which executed the foregoing instrument, and for themselves
and as such officers respectively, and for and on
60
72
E-Z SERVE
Final December 1, 1994
behalf of the corporation, acknowledged the signing and execution of said
instrument as their free and voluntary act and deed as such officers
respectively, and the free and voluntary act and deed of said corporation, for
the uses and purposes therein mentioned.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed
my Notarial seal, on the day and year last aforesaid.
[SEAL]
/s/ Xxxxx Xxxxxx
Notary Public
My Commission Expires: May 20, 1997
61
