STOCK PURCHASE AGREEMENT
BY AND AMONG
THE ▇▇▇▇▇▇ BROS. CO. EMPLOYEE STOCK OWNERSHIP TRUST
AND
▇▇▇▇▇ FARGO BANK, N.A.
as TRUSTEE
DATED JANUARY 9, 2004
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of the 9th day of January, 2004, by and among the ▇▇▇▇▇▇ Bros. Co.
Employee Stock Ownership Trust, an exempt trust (the "Purchaser") and ▇▇▇▇▇▇
Bros. Co., a California corporation (the "Company" or the "Seller").
W I T N E S S E T H:
WHEREAS, the Purchaser is a trust exempt under section 501 of the
Internal Revenue Code of 1986, as amended ("Code") which is part of the
▇▇▇▇▇▇ Bros. Co. Employee Stock Ownership Plan ("Plan") which is a plan
qualified under sections 401(a) and 4975 of the Code;
WHEREAS, the Seller intends to issue 124,939 shares of the authorized
common stock of the Company (the "Shares"); and
WHEREAS, the Seller desires to sell the Shares for cash and the
Purchaser desires to purchase the Shares from the Seller (the "Acquisition").
NOW, THEREFORE, for and in consideration of the foregoing and of the
mutual representations, warranties, covenants and agreements contained in
this Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and subject to the conditions
set forth below, the parties, intending to be legally bound, undertake,
promise, covenant and agree with each other as follows:
ARTICLE I.
PURCHASE AND SALE OF THE SHARES
SECTION 1.01 Acquisition of the Shares.
On the terms and subject to the conditions contained in this Agreement, the
Purchaser hereby agrees to purchase the Shares from the Seller and the Seller
hereby agrees to sell, convey, transfer and assign the Shares to the
Purchaser, free and clear of all liens, security interests, pledges,
encumbrances, adverse claims and demands of every kind, character and
description whatsoever.
SECTION 1.02 Purchase Price.
The purchase price (the "Purchase Price") and full consideration that the
Seller shall receive for the Shares shall be an aggregate amount of
$31,234,750 or exactly $250 per share. The Purchase Price shall be payable
in cash at the Closing (as defined below).
SECTION 1.03 Closing and Closing Date.
The sale of the Shares to the Purchaser provided for in this Agreement
shall be consummated at a closing to be held at a place mutually agreed upon
by the Seller and the Purchaser, on January 9 , 2004. The date and event of
the sale and purchase of the Shares are hereinafter referred as the "Closing
Date" and the "Closing," respectively.
SECTION 1.04 Actions to be Taken at the Closing by the Seller.
At the Closing, the Seller shall execute and acknowledge (where
appropriate) and deliver to the Purchaser such documents and certificates
necessary to carry out the terms and provisions of this Agreement, including
the following (all of such actions constituting conditions precedent to the
Purchaser's obligations to close hereunder):
(i) Certificates evidencing and representing the Shares will
be newly issued by instruction to the Company's transfer agent, ▇▇▇▇▇ Fargo
Shareholder Services of Minneapolis. The Shares shall be delivered to the
Purchaser free and clear of any and all liens, pledges, security interests,
encumbrances, buy-sell agreements, preemptive rights and adverse claims of
every kind and character.
(ii) If the closing date is not the date hereof, a certificate,
dated as of the Closing Date, executed by the Seller, pursuant to which the
Seller shall certify that the representations and warranties made in Article
IV of this Agreement are true and correct on and as of the Closing Date as if
made on such date.
(iii) All other documents required to be delivered to the
Purchaser by the Seller under the provisions of this Agreement, and all other
documents, certificates and instruments necessary or required to accomplish
the transaction described in this Agreement as are reasonably requested by
the Purchaser.
SECTION 1.05 Actions to be Taken at the Closing by the Purchaser.
At the Closing, the Purchaser shall deliver to the Seller such documents
and certificates necessary to carry out the terms and provisions of this
Agreement, including the following (all of such actions constituting
conditions precedent to the Seller' obligations to close hereunder):
(i) The Purchase Price for the Shares being purchased by the
Purchaser from the Seller by one or more wire transfers or by one or more
certified checks.
(ii) If the closing date is not the date hereof, a
certificate, dated as of the Closing Date, executed by an authorized officer
of the Purchaser, pursuant to which such officer shall certify that the
representations and warranties made in Article V of this Agreement are true
and correct on and as of the Closing Date as if made on such date.
(iii) All other documents, certificates and instruments
necessary or required to accomplish the transaction described in this
Agreement as are reasonably requested by the Seller.
SECTION 1.06 Further Assurances.
At any time and from time to time after the Closing, at the request of any
party to this Agreement and without further consideration, any party so
requested will execute and deliver such other instruments and take such other
action as the requesting party may reasonably deem necessary or desirable in
order to effectuate the transactions contemplated hereby.
ARTICLE II.
CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS
All obligations of the Purchaser under this Agreement are subject to
the fulfillment, prior to or at the Closing, of each of the following
conditions, any or all of which may be waived in whole or in part by the
Purchaser.
SECTION 2.01 Compliance with Representations, Warranties and
Agreements.
All representations and warranties made by the Seller in Article IV of this
Agreement shall have been true and correct when made and shall be true and
correct as of the Closing with the same force and effect as if such
representations and warranties were made at and as of the Closing. The
Seller and the Company shall have performed or complied in all material
respects with all agreements, terms, covenants and conditions required by
this Agreement to be performed or complied with by the Seller or by the
Company prior to or at the Closing.
SECTION 2.02 Proceedings and Documents.
All actions, proceedings, instruments and documents required to effectuate
this Agreement or incidental hereto shall be satisfactory in substance and
form to the Purchaser, and the Purchaser shall have received all such
counterpart originals or certified or other copies of such documents as it
may reasonably request.
SECTION 2.03 Appraisal.
The Purchaser shall have received an appraisal from Valuemetrics Advisors,
Inc. ("Valuemetrics") that the terms of the Acquisition are fair from a
financial point of view to the Purchaser and that Purchaser is paying no more
than adequate consideration for the Shares as that term is defined under
section 408 of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA") and the regulations thereunder.
SECTION 2.04 Availability of Financing.
The Purchaser shall have been successful in obtaining a loan from the
Company to provide the necessary funds to finance the Purchase Price.
SECTION 2.05 No Litigation.
No action shall have been taken, and no statute, rule, regulation or order
shall have been promulgated, enacted, entered, enforced or deemed applicable
to this Agreement or the transactions contemplated hereby by any governmental
authority or by any court, including the entry of a preliminary or permanent
injunction, that would (i) make this Agreement or the transactions
contemplated hereby illegal, invalid or unenforceable, (ii) make this
Agreement or the transactions contemplated hereby a prohibited transaction
under section 4975 of the Code or Section 406 of ERISA, (iii) impose material
limits on the ability of any party to this Agreement to consummate the
Agreement or the transactions contemplated hereby, or (iv) if this Agreement
or the transactions contemplated hereby are consummated, subject the
Purchaser or its Purchaser to criminal or civil liability. No action or
proceeding before any court or governmental authority shall be threatened,
instituted or pending that would reasonably be expected to result in any of
the consequences referred to in clauses (i) through (iv) above.
ARTICLE III.
CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS
All obligations of the Seller under this Agreement are subject to the
fulfillment, prior to or at the Closing, of each of the following conditions,
any or all of which may be waived in whole or in part by the Seller:
SECTION 3.01 Compliance with Representations, Warranties and
Agreements.
All representations and warranties made by the Purchaser in Article V of
this Agreement shall have been true and correct when made and shall be true
and correct as of the Closing with the same force and effect as if such
representations and warranties were made at and as of the Closing. The
Purchaser shall have performed or complied in all material respects with all
agreements, terms, covenants and conditions required by this Agreement to be
performed or complied with by it prior to or at the Closing.
SECTION 3.02 Proceedings and Documents.
All actions, proceedings, instruments and documents required to
effectuate this Agreement or incidental hereto shall be satisfactory in
substance and form to the Seller, and the Seller shall have received all such
counterpart originals or certified or other copies of such documents as they
may reasonably request.
SECTION 3.03 Litigation.
No action shall have been taken, and no statute, rule, regulation or order
shall have been promulgated, enacted, entered, enforced or deemed applicable
to this Agreement or the transactions contemplated hereby by any governmental
authority or by any court, including the entry of a preliminary or permanent
injunction, that would (i) make this Agreement or the transactions
contemplated hereby illegal, invalid or unenforceable, (ii) impose material
limits on the ability of any party to this Agreement to consummate the
Agreement or the transactions contemplated hereby, (iii) make this Agreement
or the transactions contemplated hereby a prohibited transaction under
section 4975 of the Code or Section 406 of ERISA, or (iv) if this Agreement
or the transactions contemplated hereby are consummated, subject any Seller
to criminal or civil liability. No action or proceeding before any court or
governmental authority shall be threatened, instituted or pending that would
reasonably be expected to result in any of the consequences referred to in
clauses (i) through (iv) above.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby makes the following representations and warranties
to the Purchaser as of the date of this Agreement and as of the Closing Date.
SECTION 4.01 Disclosure Schedule.
The statements contained in this Article IV are correct and complete,
except as set forth in any disclosure schedule delivered by the Company to
the Purchaser on the date hereof and initialed by the parties (the
"Disclosure Schedule"). Nothing in the Disclosure Schedule shall be deemed
adequate to disclose an exception to a representation or warranty made
herein, however, unless the Disclosure Schedule identifies the exception with
reasonable particularity and describes the relevant facts in reasonable
detail. Without limiting the generality of the foregoing, the mere listing
(or inclusion of a copy) of a document or other item shall not be deemed
adequate to disclose an exception to a representation or warranty made herein
(unless the representation or warranty has to do with the existence of the
document or other item itself). The Disclosure Schedule will be arranged in
paragraphs corresponding to the lettered and numbered paragraphs contained in
this Article IV.
SECTION 4.02 Corporate Organization; Articles; By-Laws; Minutes.
(i) The Company is a corporation duly organized, validly existing, and in
good standing under the laws of the State of California. The Company is duly
authorized to conduct business and is in good standing under the laws of each
jurisdiction where such qualification is required; (ii) the Company has full
corporate power and authority and all licenses, permits, and authorizations
necessary to carry on the businesses in which it is engaged and to own and
use the properties owned and used by it; (iii) the articles of incorporation,
as amended, shall not limit the ownership of the capital stock of the Company
to a specified number of Seller and the Company will not be a "close
corporation" as defined in section 158 of the California Corporations Act, as
amended; (iv) the minute books contain the records of all meetings of the
board of directors, and accurately reflect corporate actions of its board of
directors required by law to be passed by them; (v) the stock certificate
books, and the stock record books of the Company are correct and complete;
and (vi) the Company is not in default under or in violation of any provision
of its articles of incorporation or bylaws.
SECTION 4.03 Capitalization; Issuance of the Shares. Following the
issuance of the Company Shares
(i) The entire issued and outstanding capital stock of the Company consists
of one million six hundred seven thousand five hundred eight (1,607,508)
shares of common stock; (ii) there will be no outstanding or authorized
options, warrants, purchase rights, subscription rights, conversion rights,
exchange rights, or other contracts or commitments that could require the
Company to issue, sell, or otherwise cause to become outstanding any of its
capital stock; (iii) there will be no outstanding or authorized stock
appreciation, phantom stock, profit participation, or similar rights with
respect to the Company; and (iv) there will be no voting trusts, proxies, or
other agreements or understandings with respect to the voting of the capital
stock of the Company; (v) the Shares, when delivered to the Trustee will be
duly authorized, validly issued, fully paid and nonassessable, and none of
them will be issued in violation of any statutory preemptive or other similar
right or will be subject to any put, call or other option or any buy-sell
agreement.
SECTION 4.04 Legal Capacity.
The Company has the legal capacity to enter into this Agreement and all of
the related documents.
SECTION 4.05 The Plan.
(i) The Plan has been duly and properly adopted, authorized and established
by all necessary corporate actions on the part of the Company; and (ii) the
Plan requires that the Company will make contributions to the Trust in an
amount sufficient to fully pay the excess of the loan from the Company to the
Trust (the "Loan Agreement") pursuant to the Loan Agreement between the
Company and the Purchaser over any income of the Trust properly allocable to
payment of the Loan Agreement pursuant to the terms of the Loan Agreement
documents and the Plan.
SECTION 4.06 Authority and Enforceability.
The execution, delivery, and performance of this Agreement, and the
consummation of the transactions contemplated hereby, have been duly
authorized by the Company, and this Agreement constitutes a legal, valid, and
binding obligation in accordance with its terms, except as limited by
applicable bankruptcy, insolvency, or other similar laws relating to
creditors' rights generally, now or hereafter in effect, in general
principles of equity;
SECTION 4.07 No Default Effected.
(i) 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 Company is subject or any provision of the charter or
bylaws of the Company or (B) conflict with, or 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 Company is a party or by which it is bound or to
which any of its assets is subject (or result in the imposition of any
security interest upon any of its assets); and (ii) the Company is not
required to give notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or governmental agency
in order for the parties to consummate the transactions contemplated by this
Agreement, which has not previously been given or obtained.
SECTION 4.08 Title to Assets.
The Company has good and indefeasible title to, or a valid leasehold
interest in, the properties and assets used by it, located on its premises,
or shown on its most recent balance sheet or acquired after the date thereof,
except for properties and assets disposed of in the ordinary course of
business since the date of the most recent balance sheet.
SECTION 4.09 Financial Statements.
The financial statements provided by the Company to Purchaser's independent
appraiser (including notes thereto) have been prepared in accordance with
generally accepted accounting principles (except as modified for Federal
Income Tax Accounting purposes) applied on a consistent basis, and present
fairly the financial position of the Company as of such dates and the results
of operations of the Company for such periods, are correct and complete,
contain no untrue statements of material fact, do not omit any material fact
necessary to make such financial statements not misleading, and are
consistent with the books and records of the Company (which books and records
are correct and complete); provided, however, that the most recent financial
statements are subject to normal year-end adjustments (which will not be
material individually or in the aggregate) and may lack footnotes and other
presentation items.
SECTION 4.10 No Material Adverse Effect.
(i) Since the most recent fiscal year end of the Company, there has not
been, and as of the Closing Date there will have been no, material adverse
change in the business, financial condition, operations, results of
operations, or future prospects of the Company.
(ii)Since the date of the last balance sheet and financial
statement described in Section 4.09 of this Agreement, there has not been any
material adverse changes in the financial condition, liabilities, assets,
business or prospects of the Company, and there has not been any event or
condition of any character that has or might reasonably have a material and
adverse effect on the financial condition, business, assets, liabilities, or
prospects of the Company.
SECTION 4.11 Liabilities.
To the best knowledge of each Seller and of the Company, (i) the Company
does not have any debt, liability, or obligation of any nature, whether
accrued, absolute, contingent, or otherwise, and whether due or to become
due, that is not reflected or reserved against in the Company's last balance
sheet described in Section 4.09 of this Agreement except for ordinary trade
obligations that may have been incurred after the date of such balance sheet
in the normal course of business and determined by the Company not to be
included in the balance sheet, and all debts, liabilities, and obligations
incurred after the date of such balance sheet were incurred in the ordinary
course of business and are usual and normal in amount, both individually, and
in the aggregate; and
(ii) Except as set forth in the financial statements described in Section
4.09 of this Agreement, to the best knowledge of each Seller and of the
Company, the Company has no liabilities or obligations of any nature, whether
absolute, accrued, contingent or otherwise and whether due or to become due,
other than non-material liabilities incurred in the ordinary course of
business. To the best knowledge of each Seller and of the Company, there is no
basis for the assertion against the Company of any liability of any nature or
in any amount which is not fully reflected or reserved against in said
financial statements or described in a schedule attached hereto;
SECTION 4.12 Compliance with Laws.
To the best knowledge of each Seller and of the Company, the Company, and
its predecessors, have complied with all applicable law (including rules,
regulations, codes, plans, injunctions, judgments, orders, decrees, rulings,
and changes thereunder) 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 the Company alleging any failure so to comply;
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
The Purchaser hereby makes the following representations and
warranties to the Seller and the Company as of the date of this Agreement and
as of the Closing Date.
SECTION 5.01 Authority and Enforceability.
Purchaser has full legal capacity and authority to execute, deliver and
perform this Agreement and to consummate the transactions contemplated
hereby. This Agreement constitutes the legal, valid and binding obligation
of Purchaser, enforceable against Purchaser in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws and judicial decisions affecting the rights of
creditors generally and by general principles of equity (whether applied in a
proceeding at law or in equity).
SECTION 5.02 No Breach of Contract.
Neither the execution, delivery or performance of this Agreement, nor the
consummation of the transactions contemplated hereby, nor the fulfillment of
the terms thereof, will conflict with, or result in a breach of the terms,
conditions or provisions of, or constitute a default under any material
agreement, indenture, instrument, lien, charge, encumbrance or undertaking to
which Purchaser is a party or by which any of the properties of Purchaser may
be bound or affected.
SECTION 5.03 No Consents Necessary.
No consent, approval or order is required for the execution, delivery and
performance by Purchaser of this Agreement.
SECTION 5.04 Purchase for Investment.
The Shares will be acquired by Purchaser for investment and not with a view
to, or for sale in connection with, any distribution thereof.
ARTICLE VI.
OBLIGATIONS AND COVENANTS OF THE PURCHASER
SECTION 6.01 Confidentiality.
The Purchaser shall hold in confidence all information furnished to the
Purchaser by the Seller, except as disclosure may be necessary to obtain any
governmental or regulatory approvals of the transactions described in this
Agreement. In the event this Agreement is terminated, any and all copies of
the books and records of the Seller in the possession of the Purchaser, or
which is in the possession of another party from whom the Purchaser can
reasonably retrieve the information, shall be returned to Seller.
SECTION 6.02 Litigation and Claims.
The Purchaser shall promptly notify the Seller in writing of any legal
action, suit or proceeding or judicial administrative or governmental
investigation, pending or threatened against the Purchaser that questions or
might question the validity of this Agreement or any actions taken or to be
taken by the Purchaser pursuant hereto or thereto or seeks to enjoin or
otherwise restrain the transactions contemplated hereby.
ARTICLE VII.
TERMINATION AND ABANDONMENT
SECTION 7.01 Right of Termination.
This Agreement and the transactions contemplated hereby may be terminated
and abandoned at any time prior to or at the Closing as follows, and in no
other manner:
(i) By the mutual consent of the Purchaser and the Seller.
(ii) By either the Purchaser or the Seller if any court of competent
jurisdiction or other governmental body shall have issued an order, decree or
ruling or taken any other action restraining, enjoining, invalidating or
otherwise prohibiting the Agreement or the transactions contemplated hereby
and such order, decree, ruling or other action shall have become final and
nonappealable.
(iii) By the Purchaser if the Seller shall fail to comply in any
material respect with any of its covenants or agreements contained in this
Agreement or in any other agreement contemplated hereby and such failure
shall not have been cured within a period of thirty (30) calendar days after
notice from the Purchaser, or if any of the representations or warranties of
the Seller contained herein or therein shall be inaccurate in any material
respect.
(iv) By the Seller if the Purchaser shall fail to comply in any material
respect with any of its covenants or agreements contained in this Agreement
or in any other agreement contemplated hereby and such failure shall not have
been cured within a period of thirty (30) calendar days after notice from the
Seller, or if any of the representations or warranties of the Purchaser
contained herein or therein shall be inaccurate in any material respect.
SECTION 7.02 Notice of Termination.
The power of termination provided for by Section 7.01 of this Agreement may
be exercised only by a notice given in writing, as provided in Section 8.01
of this Agreement.
SECTION 7.03 Effect of Termination.
Without limiting any other relief to which either party hereto may be
entitled for breach of this Agreement, in the event of the termination and
abandonment of this Agreement pursuant to the provisions of Section 7.01
hereof, no party to this Agreement shall have any further liability or
obligation in respect of this Agreement.
ARTICLE VIII.
MISCELLANEOUS
SECTION 8.01 Notices.
Any and all payments (other than payments at the Closing), notices,
requests, instructions and other communications required or permitted to be
given under this Agreement after the date hereof by any party hereto to any
other party may be delivered personally or by nationally recognized overnight
courier service or sent by mail or (except in the case of payments) by telex
or facsimile transmission, at the respective addresses or transmission
numbers set forth below and shall be effective (i) in the case of personal
delivery, telex or facsimile transmission, when received; (ii) in the case of
mail, upon the earlier of actual receipt or three (3) business days after
deposit in the United States Postal Service, first class certified or
registered mail, postage prepaid, return receipt requested; and (iii) in the
case of nationally-recognized overnight courier service, one (1) business day
after delivery to such courier service together with all appropriate fees or
charges and instructions for such overnight delivery. The parties may change
their respective addresses and transmission numbers by written notice to all
other parties, sent as provided in this Section 8.01. All communications
must be in writing and addressed as follows:
IF TO THE SELLER:
▇▇▇▇▇▇ Bros. Co.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇, Treasurer and CFO
IF TO THE PURCHASER:
▇▇▇▇▇ Fargo Bank, N.A.
Trustee for the ▇▇▇▇▇▇ Bros. Co. Employee Stock Ownership Trust
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇-▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President and Compliance Manager
SECTION 8.02 Survival of Representations and Warranties.
The representations and warranties made by the Company and by the Seller to
the Purchaser in this Agreement are made as of the date hereof and as of the
Closing Date and shall survive the Closing. The representations and
warranties made by the Purchaser to the Seller and the Company in this
Agreement are made as of the date hereof and as of the Closing Date and shall
survive the Closing.
SECTION 8.03 Entire Agreement.
This Agreement contains the entire agreement between the parties hereto
with respect to the transaction contemplated hereby. This Agreement may be
amended, modified or supplemented only by an instrument in writing executed
by the party against which enforcement of the amendment, modification or
supplement is sought.
SECTION 8.04 GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF CALIFORNIA (INCLUDING THOSE LAWS RELATING TO CHOICE OF
LAW) APPLYING TO CONTRACTS ENTERED INTO AND TO BE PERFORMED WITHIN THE STATE
OF CALIFORNIA, WITHOUT REGARD FOR THE PROVISIONS THEREOF REGARDING CHOICE OF
LAW.
SECTION 8.05 Severability.
In the event that any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future laws, then (i) such
provision shall be fully severable and this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision were not a
part hereof; (ii) the remaining provisions of this Agreement shall remain in
full force and effect and shall not be affected by such illegal, invalid or
unenforceable provision or by its severance from this Agreement; and (iii)
there shall be added automatically as a part of this Agreement a provision as
similar in terms to such illegal, invalid or unenforceable provision as may
be possible and still be legal, valid and enforceable.
SECTION 8.06 Attorneys' Fees and Costs.
In the event attorneys' fees or other costs are incurred to secure
performance of any of the obligations herein provided for, or to establish
damages for the breach thereof, or to obtain any other appropriate relief,
whether by way of prosecution or defense, the prevailing party shall be
entitled to recover reasonable attorneys' fees and costs incurred therein.
SECTION 8.07 Specific Performance.
Each of the parties hereto acknowledges that the other parties would be
irreparably damaged and would not have an adequate remedy at law for money
damages in the event that any of the covenants contained in this Agreement
were not performed in accordance with its terms or otherwise were materially
breached. Each of the parties hereto therefore agrees that, without the
necessity of proving actual damages or posting bond or other security, the
other party shall be entitled to temporary or permanent injunction or
injunctions to prevent breaches of such performance and to specific
enforcement of such covenants in addition to any other remedy to which they
may be entitled, at law or in equity.
SECTION 8.08 Multiple Counterparts.
For the convenience of the parties hereto, this Agreement may be executed
in multiple counterparts, each of which shall be deemed an original, and all
counterparts hereof so executed by the parties hereto, whether or not such
counterpart shall bear the execution of each of the parties hereto, shall be
deemed to be, and shall be construed as, one and the same Agreement. A
telecopy or facsimile transmission of a signed counterpart of this Agreement
shall be sufficient to bind the party or parties whose signature(s) appear
thereon.
SECTION 8.09 Articles, Sections and Exhibits.
All articles and sections referred to herein are articles and sections,
respectively, of this Agreement and all exhibits referred to herein are
exhibits attached to this Agreement. Descriptive headings as to the contents
of particular sections are for convenience only and shall not control or
affect the meaning, construction or interpretation of any provision of this
Agreement. Any and all exhibits or other documents or instruments referred
to herein or attached hereto are and shall be incorporated herein by
reference hereto as though fully set forth herein verbatim.
SECTION 8.10 Rules of Construction.
The descriptive headings in this Agreement are inserted for convenience of
reference only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement. Each use herein of the masculine, neuter
or feminine gender shall be deemed to include the other genders. Each use
herein of the plural shall include the singular and vice versa, in each case
as the context requires or as it is otherwise appropriate. The word "or" is
used in the inclusive sense.
SECTION 8.11 Commissions.
The parties hereto agree and represent to each other that there are no
commissions due to any broker or any other person relating to the
transactions that are the subject of this Agreement, and each party hereto
agrees to indemnify and hold harmless the other parties hereto from any
commission due as a result of its actions with respect to this transaction.
SECTION 8.12 Binding Agreement; No Assignment. This Agreement shall
be binding upon and inure to the benefit of each corporate party hereto, its
successors, and each individual party hereto and his or her heirs, personal
representatives, successors and assigns. No party to this Agreement shall
assign this Agreement, by operation of law or otherwise, in whole or in part,
without the prior written consent of the other parties.
SECTION 8.13 Indemnification. (i) General. From and after the
Closing, the Seller shall indemnify the Trustee, the Trust, and the members of
the Administrative Committee of the Plan as provided in this Article VIII. As
used in this Agreement, the term "Damages" shall mean all liabilities,
inaccuracy in or breach of any representations or warranties made by the
Company resulting in an adverse effect on the Company, demands, claims, actions
or causes of action, regulatory, legislative or judicial proceedings or
investigations, assessments, levies, losses, fines, penalties, damages, costs
and expenses, including, without limitation, reasonable attorneys',
accountants', investigators', and experts' fees and expenses sustained or
incurred in connection with the defense or investigation of any claim.
(ii) The Company's Indemnification Obligations. The Company
shall defend, indemnify, save, and keep harmless the Trust, the members of
the Administrative Committee of the Plan, the Trustee, and their respective
representatives, officers, directors, agents, employees, successors, and
assigns against and from all Damages sustained or incurred by any of them
resulting from or arising out of or by virtue of (A) any inaccuracy in or
breach of any representation and warranty made by the Company in this
Agreement or in any closing document delivered to the Seller in connection
with this Agreement or (B) any breach by the Company of, or failure by the
Company to comply with, any of its covenants or obligations under this
Agreement (including, without limitation, its obligations under this Article
VIII).
(iii) Limitation on Rights to Indemnification. The obligations
to indemnify pursuant to this Article VIII are subject to the following
limitations:
(A) No recovery for Damages related to any inaccuracy in or breach of
any representation and warranty made by any Seller or the Company in this
Agreement or in any closing document delivered to the Trust in connection
with this Agreement under Section 8.12(ii) of this Agreement, unless a claim
for Damages has been asserted by written notice, specifying the details of
the alleged claim, delivered to the other party prior to the second
anniversary of the Closing Date.
(B) Notwithstanding anything herein to the contrary in this Section
8.13, the parties acknowledge and agree that the indemnification provisions
in this Article are the exclusive remedy for any breach of representations
and warranties by the Company in this Agreement except in the case of fraud.
SECTION 8.14 Construction.
The parties acknowledge that each party and its counsel have reviewed this
Agreement and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement or any amendments or
exhibits hereto.
IN WITNESS WHEREOF, the Purchaser and the Seller have caused this
Agreement to be executed as of the date first above written.
THE PURCHASER:
▇▇▇▇▇ FARGO BANK, N.A., not in its
corporate capacity but solely in its capacity as Directed
Trustee of the ▇▇▇▇▇▇ BROS CO. EMPLOYEE STOCK
OWNERSHIP TRUST acting pursuant to the directions of the
Administrative Committee appointed thereunder.
By /s/ ▇. ▇▇▇▇▇▇ /s/ E.L. ▇▇▇▇▇
Title: Vice President Vice President
THE SELLER:
▇▇▇▇▇▇ BROS. CO.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
_______________________________________
▇▇▇▇ ▇▇▇▇▇▇▇, Treasurer and CFO
LAS99 1325661-1.058013.0012
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LAS99 1325661-1.058013.0012
