STOCK PURCHASE AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of January 2,
1998, by and among Xxx. Xxxxxx' Holding Company, Inc., a Delaware corporation
(the "Buyer"), and Xxxxxx X. Xxxxxxxxx, shareholder of Pretzel Time, Inc., a
Pennsylvania corporation (the "Company"), who becomes the "Seller". The Buyer
and the Seller are referred to collectively herein as the "Parties."
A. The Seller collectively owns forty-four (44) shares of the issued and
outstanding common stock of the Company;
B. This Agreement contemplates a transaction in which the Buyer will
purchase from the Seller, and the Seller will sell to the Buyer, four (4) shares
of the outstanding common stock (par value $10.00 per share) of the Company
owned by the Seller (the "Shares"), as part of a series of transactions in which
the Buyer is acquiring common stock in the Company, and is also entering into
other related transactions (collectively, the "Related Transactions");
WHEREAS, the Buyer will purchase the Shares of the Company in return
for cash as set forth below.
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the Parties agree as follows.
1. Purchase and Sale of Shares.
(a) Basic Transaction. On and subject to the terms and
conditions of this Agreement, the Buyer agrees to purchase from the
Seller, and the Seller agrees to sell to the Buyer, each of the Shares
for the consideration specified below in Section 1(b).
(b) Purchase Price. The Buyer agrees to pay to the Seller at
the Closing the sum of Seventy-Five Thousand Dollars ($75,000) per
Share (the "Purchase Proceeds") for a total of Three Hundred Thousand
Dollars ($300,000) (the "Purchase Price"), by delivery of certified
funds for the Purchase Price payable in accordance with this Agreement.
(c) The Closing. The closing of the transactions contemplated
by this Agreement (the "Closing") will take place at the offices of the
Buyer in Salt Lake City, Utah, on a mutually agreeable date between
January 2 and January 9, 1998 (the "Closing Date"), unless extended by
written agreement of the Parties.
(d) Deliveries at the Closing. At Closing, the Seller will
deliver to the Buyer, the various documents referred to in Section 5(a)
below, including the stock certificate(s) representing each of the
Seller's Shares, endorsed in blank or accompanied by duly executed
assignment documents.
2. Representations and Warranties Concerning the Transaction.
(a) Representations and Warranties of the Seller. The Seller
represents and warrants to the Buyer that the statements contained in
this Section 2(a) are correct and complete as of the date of this
Agreement and will be correct and complete as of the Closing Date (as
though made then and as though the Closing Date were substituted for
the date of this Agreement throughout this Section 2(a)) with respect
to himself except as set forth on the Disclosure Schedule affixed
hereto.
(i) Organization of Certain Seller. If the Seller is
a corporation or other entity, the Seller is duly organized,
validly existing, and in good standing under the laws of the
jurisdiction of its organization.
(ii) Authorization of Transaction. The Seller has
full power and authority (including, if the Seller is an
entity, full power and authority) to execute and deliver this
Agreement and to perform his obligations hereunder. This
Agreement constitutes the valid and legally binding obligation
of the Seller, enforceable in accordance with its terms and
conditions. The Seller need not give any notice to, make any
filing with, or obtain any authorization, consent or approval
of any government or governmental agency in order to
consummate the transactions contemplated by this Agreement.
(iii) Noncontravention. To the best of Seller's
knowledge, neither the execution and the delivery of this
Agreement, nor the consummation of the transactions
contemplated hereby, will (A) violate any constitution,
statute, regulation, rule, injunction, judgment, order,
decree, ruling, charge or other restriction of any government,
governmental agency or court to which the Seller is subject
or, if the Seller is a corporation, any provision of its
charter or bylaws, or (B) conflict with, result in a breach
of, constitute a default under, result in the acceleration of,
create in any party the right to accelerate, terminate, modify
or cancel, or require any notice under any agreement,
contract, lease, license, instrument or other arrangement to
which the Seller is a party or by which the Seller is bound or
to which any of the Seller's assets is subject.
(iv) Brokers' Fees. The Seller has no liability or
obligation to pay any fees or commissions to any broker,
finder or agent with respect to the transactions contemplated
by this Agreement for which the Buyer could become liable or
obligated.
(v) Shares. The Seller holds of record and owns
beneficially the number of Shares (but no more or other shares
of the common stock of the Company than) set forth in
paragraph A above. The Seller holds and owns each of the
Shares free and clear of any restrictions on transfer, any
federal, state or local taxes of any kind, taxes, mortgage,
pledge, lien, encumbrance, charge or other security interests,
options, warrants, purchase rights, contracts, commitments,
equities, claims and demands. Other than this Agreement and
other written agreements with the Company and/or the Buyer,
the Seller is not a party to (A) any option, warrant, purchase
right, shareholders agreement, co-sale agreement, buy-sell
agreement or other contract or commitment that could require
the Seller to sell, transfer or otherwise dispose of any
capital stock of the Company (other than this Agreement), or
(B) any voting trust, proxy or other agreement or
understanding with respect to the voting of any capital stock
of the Company.
(vi) Legal Compliance/Litigation. To the best of his
knowledge, the Seller and his respective predecessors and
affiliates have complied with all applicable laws of federal,
state, local and foreign governments (and all agencies
thereof), and no action, suit, proceeding, hearing,
investigation, charge, complaint, claim, demand or notice has
been filed or commenced against any of them alleging any
failure so to comply. To the best of his knowledge, there are
no outstanding injunctions, judgments, orders, decrees,
rulings or charges affecting their Shares. To the best of his
knowledge, there are no actions, suits, proceedings, hearings
or investigations, and the Seller does not have reason to
believe that any such action, suit, proceeding, hearing or
investigation may be brought or threatened, against the
Seller.
(vii) Investigation. The Seller has investigated or
had full opportunity to investigate the terms and conditions
of the transactions contemplated by this Agreement, including
the Purchase Price, and deems them to be fair and appropriate.
3. Pre-Closing Covenants. With respect to the period between the
execution of this Agreement and the Closing, (A) each of the Parties will use
his reasonable best efforts to take all action and to do all things necessary,
proper or advisable in order to consummate and make effective the transactions
contemplated by this Agreement, (B) the Seller will use his best efforts to
obtain any third-party consents that the Buyer may request or to otherwise
consummate the transactions contemplated hereby, and (C) the Seller will give
prompt written notice to the Buyer of any material adverse development causing a
breach of any of the representations and warranties in Section 2 above.
4. Post-Closing Covenants. The Parties agree that if at any time after
the Closing any further action is necessary or desirable to carry out the
purposes of this Agreement, each of the Parties will take such further action
(including the execution and delivery of such further instruments and documents)
as any other Party reasonably may request.
5. Conditions to Closing.
(a) Conditions to Obligation of the Buyer. The obligation of
the Buyer to consummate the transactions to be performed by it in
connection with the Closing is subject to the satisfaction of the
following conditions:
(i) The representations and warranties set forth in
Section 2 above shall be true and correct in all material
respects at and as of the Closing Date.
(ii) The Seller shall have performed and complied
with all of their covenants hereunder in all material respects
through the Closing.
(iii) The Seller shall have procured any third party
consents required for the sale of the Shares.
(iv) No action, suit or proceeding shall be pending
or threatened before any court or quasi-judicial or
administrative agency of any federal, state, local or foreign
jurisdiction or before any arbitrator wherein an unfavorable
injunction, judgment, order, decree, ruling or charge would
(A) prevent consummation of any of the transactions
contemplated by this Agreement, (B) cause any of the
transactions contemplated by this Agreement to be rescinded
following consummation, or (C) affect adversely the right of
the Buyer to own the Shares.
(v) The Seller shall be prepared to deliver the
certificates and documents in the form and executed as
required by this Agreement.
(vi) All actions to be taken by the Seller in
connection with consummation of the transactions contemplated
by this Agreement, and all certificates, and other documents
required to effect the transactions contemplated hereby, will
be satisfactory in form and substance to the Buyer.
(vii) The Closing of the Related Transactions shall
have occurred.
(viii) Neither the Company nor the Principal
Shareholder shall be in breach under the terms and conditions
of any of the Stock Acquisition Agreement (as defined in
Section 6 below) and the documents executed in connection with
the Related Transactions.
The Buyer may waive any condition specified in this Section 5(a) if it
executes a writing so stating at or prior to the Closing.
(b) Conditions to Obligation of the Seller. The obligation of
the Seller to consummate the transactions to be performed by them in
connection with the Closing is subject to satisfaction of the following
conditions:
(i) No action, suit or proceeding shall be pending
threatened before any court or quasi-judicial or
administrative agency of any federal, state, local or foreign
jurisdiction for before any arbitrator wherein an unfavorable
injunction, judgment, order, decree, ruling or charge would
(A) prevent consummation of any of the transactions
contemplated by this Agreement, or (B) cause any of the
transactions between the Buyer and the Seller contemplated by
this Agreement to be rescinded following consummation (and no
such injunction, judgment, order, decree, ruling or charge
shall be in effect).
(ii) The Buyer shall be prepared to deliver the
Purchase Proceeds as required by Section 1(b).
(iii) The Closing of the Related Transactions shall
have occurred.
The Seller may waive any condition specified in this Section 5(b) if
they execute a writing so stating at or prior to the Closing.
6. Remedies for Breaches of This Agreement.
(a) Survival of Representations and Warranties.
All of the representations and warranties of the Seller contained in
this Agreement shall survive the Closing hereunder (even if the damaged
Party knew or had reason to know of any misrepresentation or breach of
warranty at the time of Closing) and continue in full force and effect
forever thereafter (subject to any applicable statutes of limitations).
(b) Indemnification Provisions for Benefit of the Buyer.
(i) In the event the Seller breaches any of its
representations, warranties, and covenants contained herein,
and, if the Buyer makes a written claim for indemnification
against any of the Seller therefor, then, the Seller agrees to
indemnify the Buyer from and against the entirety of any
Adverse Consequences that the Buyer may suffer through and
after the date of the claim for indemnification (including any
Adverse Consequences the Buyer may suffer after the end of any
applicable survival period) resulting from, arising out of,
relating to, in the nature of, or caused by the breach.
(ii) If any third party shall notify Fields with
respect to any matter (a "Third Party Claim") which may give
rise to a claim for indemnification against the Seller under
this ' 6, then Fields shall promptly notify the Seller thereof
in writing, provided, however, that no delay on the part of
Fields in notifying the Seller shall relieve the Seller from
any obligation hereunder unless (and then solely to the
extent) the Seller is prejudiced. The indemnification
procedure respecting a Third Party Claim hereunder shall be
the same as set forth in Section 9(c) of that certain Stock
Acquisition Agreement, dated as of September 2, 1997 (the
"Acquisition Agreement"), by and between Fields, the Company
and the Seller (therein referred to as the Principal
Shareholder).
(iii) All claims for indemnification made under this
Agreement shall be subject to the terms and conditions of
Sections 9(d) (Determination of Adverse Consequences), (f)
(Rights of Offset) and (g) (Limitation of Rights of Offset) of
the Stock Acquisition Agreement, and the indemnity payment
required of Principal Shareholder for such claims shall be
determined as if the claims were made under the Stock
Acquisition Agreement.
(iv) The foregoing indemnification provisions are in
addition to, and not in derogation of, any statutory,
equitable, or common law remedy Fields may have for breach of
representation, warranty, or covenant.
7. Termination.
(a) Termination of Agreement. The Parties may terminate this
Agreement as provided below:
(i) The Buyer and the Seller may terminate this
Agreement by mutual written consent at any time prior to the
Closing.
(ii) The Buyer or the Seller may terminate this
Agreement if the Closing does not occur on or before January
30, 1998.
(b) Effect of Termination. If any Party terminates this
Agreement pursuant to this Section, all rights and obligations of the
Parties hereunder shall terminate without any liability of any Party to
any other Party (except for any liability of any Party then in breach).
8. Miscellaneous.
(a) No Third-Party Beneficiaries. This Agreement shall not
confer any rights or remedies upon any Person other than the Parties
and their respective successors and permitted assigns.
(b) Entire Agreement. This Agreement (including the documents
referred to herein) constitutes the entire agreement among the Parties
and supersedes any prior understandings, agreements or representations
by or among the Parties, written or oral, to the extent they relate in
any way to the subject matter hereof.
(c) Succession and Assignment. This Agreement shall be binding
upon and inure to the benefit of the Parties named herein and their
respective successors and permitted assigns. No Party may assign either
this Agreement or any of his or its rights, interests or obligations
hereunder without the prior written approval of the Buyer and the
Seller; provided, however, that the Buyer may (i) assign any or all of
its rights and interests hereunder to one or more of its affiliates,
and (ii) designate one or more of its affiliates to perform its
obligations hereunder (in any or all of which cases the Buyer
nonetheless shall remain responsible for the performance of all of its
obligations hereunder).
(d) Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of
which together will constitute one and the same instrument.
(e) Headings. The section headings contained in this Agreement
are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
(f) Notices. All notices, requests, demands, claims and other
communications hereunder will be in writing. Any notice, request,
demand, claim or other communication hereunder shall be deemed duly
given if (and then two business days after) it is sent by registered or
certified mail, return receipt requested, postage prepaid, and
addressed to the intended recipient as set forth below:
If to the Seller: Xxxxxx X. Xxxxxxxxx
0000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
With a copy to: Mette, Xxxxx & Xxxxxxxx
Attention: Xxxxx X. Xxxxxx
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
If to the Buyer: Xxx. Xxxxxx' Holding Company, Inc.
000 Xxxx Xxxxxxx Xxxxx
Xxxx Xxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, President
With a Copy to: Jones, Waldo, Xxxxxxxx & XxXxxxxxx
000 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
Any Party may send any notice, request, demand, claim or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail or electronic mail), but no such notice, request,
demand, claim or other communication shall be deemed to have been duly given
unless and until it actually is received by the intended recipient. Any Party
may change the address to which notices, requests, demands, claims and other
communications hereunder are to be delivered by giving the other Parties notice
in the manner herein set forth.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of Utah
without giving effect to any choice or conflict of law provision or
rule thereof.
(h) Amendments and Waivers. No amendment of any provision of
this Agreement shall be valid unless the same shall be in writing and
signed by the Buyer and each of the Sellers. No waiver by any Party of
any default, misrepresentation or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to extend to any
prior or subsequent default, misrepresentation or breach of warranty or
covenant hereunder or affect in any way any rights arising by virtue of
any prior or subsequent such occurrence.
(i) Severability. Any term or provision of this Agreement that
is invalid or unenforceable in any situation in any jurisdiction shall
not affect the validity or enforceability of the remaining terms and
provisions hereof or the validity or enforceability of the offending
term or provision in any other situation or in any other jurisdiction.
(j) Expenses. Each of the Parties will bear his or its own
costs and expenses (including legal fees and expenses) incurred in
connection with this Agreement and the transactions contemplated
hereby. The Seller agrees that none of the Company and its Subsidiaries
has borne or will bear any of the Seller's costs and expenses
(including any of their legal fees and expenses) in connection with
this Agreement or any of the transactions contemplated hereby.
(k) Incorporation of Exhibits and Schedules. The Exhibits and
Schedules identified in this Agreement are incorporated herein by
reference and made a part hereof.
(l) Specific Performance. Each of the Parties acknowledges and
agrees that the other Parties would be damaged irreparably in the event
any of the provisions of this Agreement are not performed in accordance
with their specific terms or otherwise are breached. Accordingly, each
of the Parties agrees that the other Parties shall be entitled to an
injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically this Agreement and the terms and
provisions hereof in any action instituted in any court of the United
States or any state thereof having jurisdiction over the Parties and
the matter, in addition to any other remedy to which they may be
entitled, at law or in equity.
229744.1
August 31, 1997
8
229744.1
August 31, 1997
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
BUYER: XXX. XXXXXX' HOLDING COMPANY, INC.
By:/s/Xxxxxxx X. Xxxxxxx
Its:Xxxxxxx X. Xxxxxxx, Manager
SELLER:
/s/xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
August 31, 1997
10
DISCLOSURE SCHEDULE TO STOCK ACQUISITION AGREEMENT
Section 2(a):
None, unless otherwise stated below.
Buyer's Initials Seller's Initials
