AGREEMENT AND PLAN OF MERGER by and among BF BOLTHOUSE HOLDCO LLC, CAMPBELL SOUP COMPANY (solely for purposes of Section 12.19), CAMPBELL INVESTMENT COMPANY, BOLT ACQUISITION SUB LLC, and MADISON DEARBORN CAPITAL PARTNERS IV, L.P.,as the Representative July 9, 2012 Table of Contents

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Exhibit A                                Form of Letter of Transmittal

Exhibit B                                Form of Escrow Agreement

Affiliated Transactions Schedule

Authorization Schedule

Brokerage Schedule

Capital Expenditures Schedule

Class A Preference Amount Schedule

Compliance with Laws Schedule

Conduct of the Business Schedule

Contracts Schedule

Developments Schedule

Employee Benefits Schedule

Environmental Schedule

Financial Statements Schedule

Governmental Consents Schedule

Indebtedness Payoff Schedule

Insurance Schedule

Intellectual Property Schedule

Inventories Schedule

Labor and Employment Schedule

Liens Schedule

Litigation Schedule

Permits Schedule

Real Property Schedule

Special Disputes Schedule

Special Vesting Class B Common Units Schedule

Subsidiary Schedule

Taxes Schedule

Transaction Expenses Schedule

Unitholders Schedule

THIS AGREEMENT AND PLAN OF MERGER (this “Agreement”), dated as of July 9, 2012, is made by and among BF Bolthouse Holdco LLC, a Delaware limited liability company (the “Company”), Campbell Investment Company, a Delaware corporation (the “Purchaser”), Bolt Acquisition Sub LLC, a Delaware limited liability company and wholly owned subsidiary of the Purchaser (the “Merger Sub”), Campbell Soup Company, a New Jersey corporation (the “ Parent”), solely for purposes of Section 12.19, and Madison Dearborn Capital Partners IV, L.P., a Delaware limited partnership, solely in its capacity as representative for the Unitholders (the “Representative”). Capitalized terms used and not otherwise defined herein have the meanings set forth in Article 11 below.

WHEREAS, the Purchaser desires to acquire 100% of the issued and outstanding membership interests of the Company in a reverse subsidiary merger transaction upon the terms and subject to the conditions set forth herein.

WHEREAS, the respective boards of directors and boards of managers, as applicable, of the Purchaser, the Merger Sub and the Company have approved this Agreement, the Merger and the related transactions contemplated hereby, upon the terms and subject to the conditions set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1.01   The Merger.

(a) Subject to the terms and conditions hereof, at the Effective Time, the Merger Sub shall merge (the “Merger”) with and into the Company in accordance with the Delaware Limited Liability Company Act (the “Delaware Law”), whereupon the separate existence of the Merger Sub shall cease, and the Company shall be the surviving entity in the Merger (the “Surviving Entity”).

(b) At the Closing, the Company and the Merger Sub shall cause a certificate of merger to be executed, acknowledged and filed with the Secretary of State of the State of Delaware (the “Certificate of Merger”) and make all other filings or recordings required by the Delaware Law in connection with the Merger. The Merger shall become effective at such time as the Certificate of Merger is duly filed with the Secretary of State of the State of Delaware or at such other time as the Purchaser and the Company shall agree and specify in the Certificate of Merger (the “Effective Time”).

(c) From and after the Effective Time, the Surviving Entity shall succeed to all the assets, rights, privileges, powers and franchises and be subject to all of the liabilities,

 

restrictions, disabilities and duties of the Company and the Merger Sub, all as provided under Section 18-209 of the Delaware Law.

1.02 Conversion of Membership Interests. At the Effective Time, by virtue of the Merger and without any action on the part of the holders thereof (but subject to Section 1.10):

(a) Each Class A Common Unit issued and outstanding immediately prior to the Effective Time shall be converted into the right to receive in cash the sum of (i) the Class A Preference Amount for such Class A Common Unit plus (ii) the Per Unit Portion of the Final Residual Cash Consideration (provided that, at the Closing, the amount to be paid with respect to each Class A Common Unit shall be based instead upon the Per Unit Portion of the Closing Residual Cash Consideration), payable to the holder thereof in accordance with Section 1.03(a) below.

(b) Each Class B Common Unit issued and outstanding immediately prior to the Effective Time shall be converted into the right to receive in cash the Per Unit Portion of the Final Residual Cash Consideration (provided that, at the Closing, the amount to be paid with respect to each Class B Common Unit shall be based upon the Per Unit Portion of the Closing Residual Cash Consideration), payable to the holder thereof in accordance with Section 1.03(a) below (or, pursuant to Section 1.03(b) below, to the Escrow Agent on behalf of the holder thereof) . The aggregate consideration to which holders of Class A Common Units and holders of Class B Common Units become entitled pursuant to Section 1.02(a) and this Section 1.02(b) is referred to herein as the “Merger Consideration.”

(c) For purposes of this Agreement, the term “Closing Residual Cash Consideration” means (i) the Base Consideration, minus (ii) Estimated Indebtedness, plus (iii) the amount, if any, by which Estimated Net Working Capital exceeds the Target Net Working Capital, minus (iv) the amount, if any, by which Estimated Net Working Capital is less than the Target Net Working Capital, minus (v) the Escrow Amount, minus (vi) the Holdback Amount, plus (vii) Estimated Cash, minus (viii) the amount of Estimated Transaction Expenses, minus (ix) the Aggregate Class A Preference Amount, plus (x) the amount of Estimated Transaction Tax Benefits, minus (xi) the Estimated Pre-Closing Income Tax Amount.

(d) For purposes of this Agreement, the term “Final Residual Cash Consideration” means (i) the Base Consideration, minus (ii) Final Indebtedness, plus (iii) the amount, if any, by which Final Net Working Capital exceeds the Target Net Working Capital, minus (iv) the amount, if any, by which Final Net Working Capital is less than the Target Net Working Capital, minus (v) the Escrow Amount, minus (vi) the Holdback Amount, plus (vii) Final Cash, minus (viii) the amount of Final Transaction Expenses, minus (ix) the Aggregate Class A Preference Amount, plus (x) the amount of the Transaction Tax Benefits, minus (xi) the Pre-Closing Income Tax Amount, plus (xii) the aggregate distributions, if any, to the Unitholders pursuant to the Escrow Agreement, plus (xiii) the aggregate distributions, if any, to the Unitholders (to the extent of their applicable Common Percentage) by the Representative pursuant to Sections 1.04 and 1.09.

(e) For purposes of this Agreement, the term “Per Unit Portion” means a fraction, the numerator of which is one, and the denominator of which is the sum of the number

 

of Class A Common Units and Class B Common Units issued and outstanding immediately prior to the Effective Time.

(f) Each of the Merger Sub’s membership interests issued and outstanding immediately prior to the Effective Time shall be converted into and become one validly issued membership interest of the Surviving Entity. Each of the Company’s Class A Common Units and Class B Common Units outstanding immediately before the Effective Time shall be canceled and extinguished, and each Unitholder shall cease to have any rights with respect thereto, except the right to receive such Unitholder’s share of the Merger Consideration in accordance with this Section 1.02.

1.03   Exchange of Certificates; Lost Certificates.

(a) The Paying Agent shall effect the exchange of cash for certificates which, immediately prior to the Effective Time, represented Class A Common Units and Class B Common Units entitled to payment pursuant to Section 1.02, and the fees and expenses of the Paying Agent shall be borne by the Unitholders. The Paying Agent shall deliver to each Unitholder a letter of transmittal substantially in the form of Exhibit A attached hereto (the “Letter of Transmittal”). Subject to Section 1.03(b), on or after the Closing Date, the Paying Agent shall pay to each Unitholder who has surrendered to the Paying Agent his, her or its certificates representing the number of Class A Common Units and/or Class B Common Units held by such Unitholder (or has directed the Company to surrender such certificates on his, her or its behalf), accompanied by a duly executed and completed Letter of Transmittal, the amount of cash to which such Unitholder is entitled under Section 1.02 at the Closing. Surrendered certificates shall forthwith be canceled. Twelve (12) months after the Effective Time, the Paying Agent shall deliver to the Company any portion of the funds deposited with the Paying Agent by the Purchaser pursuant to Section 2.02(b) of this Agreement that remains undistributed to the Unitholders pursuant to wire instructions provided to the Paying Agent by the Company at such time, unless required otherwise by applicable Law. Thereafter, any Unitholders who have not complied with the provisions of this Agreement for receiving their portion of the Merger Consideration from the Paying Agent shall look only to the Company for such amounts, without any interest or dividends thereon.

(b) Notwithstanding Section 1.03(a), all Merger Consideration payable in respect of Special Vesting Class B Common Units at the Closing (such amount, as adjusted from time to time pursuant to Section 10.05, the “Special Vesting Class B Escrow Amount”) shall, in lieu of being paid to the Paying Agent to be distributed pursuant to Section 1.03(a), be paid by the Purchaser to the Escrow Agent, to be held by the Escrow Agent in an account segregated from the Escrow Amount pursuant to the terms of the Escrow Agreement (the “Special Vesting Class B Escrow Account”). The Special Vesting Class B Escrow Amount shall be held in the Special Vesting Class B Escrow Account subject to the special holdback terms applicable to the Special Vesting Class B Common Units as set forth in the applicable Executive Unit Purchase Agreement between the Company and the applicable Unitholder (as amended from time to time, the “Special Vesting Grant Agreement”), and all further distributions of the Special Vesting Class B Escrow Amount shall be subject to, and made in accordance with, Section 10.05. For the avoidance of doubt, the Special Vesting Class B Escrow Amount shall not be available to the

 

Purchaser to satisfy any obligations of the Unitholders under Section 1.09, Article 8 or Section 10.01(l).

(c) Until so surrendered and exchanged, each certificate for Class A Common Units or Class B Common Units shall represent solely the right to receive the Merger Consideration into which the Units it theretofore represented shall have been converted pursuant to Section 1.02. Notwithstanding the foregoing, if any such certificate shall have been lost, stolen or destroyed, then, upon the making of an affidavit of such fact by the Person claiming such certificate to be lost, stolen or destroyed which is acceptable to the Representative and the Purchaser and, if required by the Representative, the Purchaser or the Paying Agent, the posting by such Person of a bond in a customary amount as indemnity against any claim that may be made with respect to such certificate, the Paying Agent shall issue, in exchange for such lost, stolen or destroyed certificate, the Merger Consideration to be paid in respect of the Class A Common Units or Class B Common Units represented by such certificate, as contemplated by this Section 1.03. After the Closing Date, there will be no transfers on the unit ledger of the Surviving Entity of Class A Common Units or Class B Common Units that were outstanding immediately prior to the Closing Date. If, after the Closing Date, certificates representing such Units are presented to the Surviving Entity, they will be canceled and exchanged as provided in this Section 1.03.

1.04 Holdback. The Representative will require that a portion of the proceeds to be received by the Unitholders pursuant to Section 1.02 in an amount equal to $6,000,000 (the “Holdback Amount”) be withheld from the Closing Residual Cash Consideration by the Representative, on behalf of such Unitholders, to satisfy potential future obligations of such Unitholders, including, without limitation, expenses arising from the defense of claims pursuant to Section 8.02 ; provided that the portion of the Holdback Amount delivered to, and held by, the Representative on behalf of each such Unitholder shall be determined pro rata according to each Unitholder’s Common Percentage. The Holdback Amount shall be retained by the Representative for such time as the Representative shall determine in its sole discretion. Any remaining amounts from the Holdback Amount returned to the Unitholders shall be distributed to the Unitholders pro rata based upon their respective Common Percentages (subject, in the case of amounts payable in respect of any Special Vesting Class B Common Units, to Section 10.05).

1.05 Operating Agreement; Certificate of Formation. The limited liability company operating agreement and certificate of formation of Merger Sub, as in effect immediately prior to the Effective Time, shall be the operating agreement and certificate of formation of the Surviving Entity until amended in accordance with applicable Law. At the Effective Time, in accordance with Section 18-301(b)(3) of Delaware Law, notwithstanding anything to the contrary in the Holdco LLC Agreement and without any further action of the Surviving Entity, the Unitholders or any other Person, the member of Merger Sub shall be admitted as the sole member of the Surviving Entity holding 100% of the membership interests therein.

1.06 Board of Managers and Officers. From and after the Effective Time, until successors are duly elected or appointed, the board of managers and officers of the Merger Sub as of the Effective Time shall be the board of managers and officers, respectively, of the Surviving Entity.

1.07 Estimated Cash, Estimated Indebtedness, Estimated Transaction Tax Benefits, Estimated Pre-Closing Income Tax Amount, Estimated Net Working Capital and Estimated Transaction Expenses. Not less than three (3) business days prior to the anticipated Closing Date, the Company, on behalf of the Unitholders, shall deliver to the Purchaser the Company’s good faith calculation of its estimate of (a) the amount of Cash as of the opening of business on the Closing Date (“Estimated Cash”), (b) Net Working Capital as of the opening of business on the Closing Date (“Estimated Net Working Capital”), (c) the amount of Indebtedness which will be outstanding immediately prior to the Effective Time (“Estimated Indebtedness”) (d) the amount of Transaction Tax Benefits (“Estimated Transaction Tax Benefits”), (e) the Pre-Closing Income Tax Amount (“Estimated Pre-Closing Income Tax Amount”) and (f) the amount of Transaction Expenses which will be outstanding immediately prior to the Effective Time (“Estimated Transaction Expenses”), together with a calculation of the Closing Residual Cash Consideration on the basis of such estimates (including the Aggregate Class A Preference Amount, the Special Class B Escrow Amount and the Holdback Amount); and with workpapers showing the calculation of Estimated Transaction Tax Benefits and Estimated Pre-Closing Income Tax Amount.

1.08 Final Cash, Final Indebtedness, Transaction Tax Benefits, the Pre-Closing Income Tax Amount, Final Net Working Capital and Final Transaction Expenses Calculations.

(a) As promptly as possible, but in any event within 60 days after the Closing Date, the Purchaser will deliver to the Representative a statement showing the calculation of the amount of Cash as of the opening of business on the Closing Date, the amount of Indebtedness outstanding immediately prior to the Effective Time, the Net Working Capital as of the opening of business on the Closing Date, Transaction Tax Benefits, the Pre-Closing Income Tax Amount and the amount of Transaction Expenses (the “Preliminary Statement”). The Preliminary Statement shall be prepared and the amount of Cash, the amount of Indebtedness and the Net Working Capital shall be determined on a consolidated basis in accordance with GAAP using the same accounting methods, policies, principles, practices and procedures, with consistent classifications, judgments and estimation methodology, as were used in preparation of the audited consolidated balance sheet of the Company and its Subsidiaries as of the fiscal year ended March 31, 2012 (the “2012 Balance Sheet”), and the Preliminary Statement shall not include any changes in assets or liabilities as a result of purchase accounting adjustments or other changes arising from or resulting as a consequence of the consummation of the transactions contemplated hereby on the Closing Date, except that the amount of Cash shall be reduced to the extent Cash is used to repay Indebtedness or pay Transaction Expenses on the Closing Date (other than any such repayment or payment using funds provided by the Purchaser or Merger Sub pursuant to Section 2.02) and such Indebtedness and Transaction Expenses amounts are actually reduced accordingly in the calculation of Merger Consideration. The parties agree that the purpose of preparing the Preliminary Statement and the related purchase price adjustment contemplated by this Section 1.08 is to determine the amount of Cash as of the opening of business on the Closing Date, the amount of Indebtedness outstanding immediately prior to the Effective Time and the amount of Transaction Expenses and to measure the difference between the Target Net Working Capital and the Net Working Capital as of the opening of business on the Closing Date and to determine the Transaction Tax Benefits and the Pre-Closing Income Tax Amount), and such processes are not intended to permit the introduction of different judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation

methodologies for the purpose of preparing the Preliminary Statement or determining the amount of Cash, the amount of Indebtedness and the Net Working Capital, except in the case of manifest error. After delivery of the Preliminary Statement, the Representative and its accountants shall be permitted reasonable access to review the Company’s and its Subsidiaries’ books and records and work papers related to the preparation of the Preliminary Statement. The Representative and its accountants may, upon prior notice to the Purchaser, make reasonable inquiries of the Purchaser, the Company, its Subsidiaries and their respective accountants regarding questions concerning, or disagreements with, the Preliminary Statement arising in the course of their review thereof, and the Purchaser shall use its, and shall cause the Company and its Subsidiaries to use their, commercially reasonable efforts to cause any such accountants to cooperate with and respond to such inquiries.

(b) If the Representative has any objections to the Preliminary Statement, the Representative shall deliver to the Purchaser a statement setting forth its objections thereto (an “Objections Statement”). If an Objections Statement is not delivered to the Purchaser within 45 days after delivery of the Preliminary Statement, the Preliminary Statement shall be final, binding and non-appealable by the parties hereto; provided that, in the event the Purchaser, the Company or any of its Subsidiaries does not provide any papers or documents reasonably requested by the Representative or any of its authorized representatives pursuant to Section 1.08(a) within five business days of request therefor (or such shorter period as may remain in such 45 day period), such 45 day period shall be extended by one day for each additional day required for the Purchaser, the Company or one of its Subsidiaries to fully respond to such request. The Representative and the Purchaser shall negotiate in good faith to resolve any such objections, but if they do not reach a final resolution within 15 days after the delivery of the Objections Statement, the Representative and the Purchaser shall submit such dispute to Houlihan Lokey, Inc. (“Houlihan”); provided that, (i) if Houlihan is unable or unwilling to serve in such capacity, or (ii) if and to the extent such objections relate to the Pre-Closing Income Tax Amount or Transaction Tax Benefits (or to any Tax Return covered by Section 10.01(c)), the Representative and the Purchaser shall jointly select an alternative arbiter from a nationally recognized independent public accounting firm that is not the independent auditor of any of the Purchaser, the Representative, the Company or the Surviving Entity (Houlihan or the Person so selected, as applicable, the “Dispute Resolution Auditor”). Each of the Representative and the Purchaser may furnish to the Dispute Resolution Auditor such information and documents as it deems relevant, with copies of such submission and all such documents and information being concurrently given to the other party. The Dispute Resolution Auditor shall consider only those items and amounts which are identified in the Objections Statement as being items which the Representative and the Purchaser are unable to resolve. The Dispute Resolution Auditor’s determination will be based solely on the definitions of Pre-Closing Income Tax Amount, Transaction Tax Benefits, Cash, Indebtedness, Net Working Capital and Transaction Expenses contained herein. The Representative and the Purchaser shall use their commercially reasonable efforts to cause the Dispute Resolution Auditor to resolve all disagreements as soon as practicable. Further, the Dispute Resolution Auditor’s determination shall be based solely on the supporting material provided by the Purchaser and the Representative which are in accordance with the terms and procedures set forth in this Agreement (i.e., not on the basis of an independent review) and may not assign a value to any particular item greater than the greatest value for such item claimed by either party or less than the lowest value for such item claimed by either party, in each case as presented to the Dispute Resolution Auditor. The resolution of the dispute by the

 

 

Dispute Resolution Auditor shall be final, binding and non-appealable on the parties hereto. The costs and expenses of the Dispute Resolution Auditor shall be allocated between the Purchaser, on the one hand, and the Unitholders, on the other hand, based upon the percentage which the portion of the aggregate contested amount not awarded to each party bears to the aggregate amount actually contested by such party (with each Unitholder responsible for its pro rata portion of such costs and expenses allocated to the Unitholders, determined according to each Unitholder’s Common Percentage). For example, if the Representative claims the Net Working Capital is $1,000 greater than the amount determined by the Purchaser’s accountants, the Purchaser contests only $500 of the amount claimed by the Representative, and the Dispute Resolution Auditor ultimately resolves the dispute by awarding the Unitholders $300 of the $500 contested, then the costs and expenses of the Dispute Resolution Auditor will be allocated 60% (i.e., 300 ÷ 500) to the Purchaser and 40% (i.e., 200 ÷ 500) to the Unitholders. The amount of Cash, the amount of Indebtedness, the Net Working Capital and the amount of Transaction Expenses as finally determined pursuant to this Section 1.08(b) shall be referred to herein as “Final Cash,” “Final Indebtedness”, “Final Net Working Capital” and “Final Transaction Expenses.”

(c) If Transaction Tax Benefits (as finally determined pursuant to this Section 1.08), Pre-Closing Income Tax Amount (as finally determined pursuant to this Section 1.08), Final Cash, Final Indebtedness, Final Net Working Capital or Final Transaction Expenses differs from Estimated Transaction Tax Benefits, Estimated Pre-Closing Income Tax Amount, Estimated Cash, Estimated Indebtedness, Estimated Net Working Capital or Estimated Transaction Expenses, respectively, as the case may be, the Merger Consideration shall be adjusted on a dollar-for-dollar basis by the amount of such difference such that (i) if Transaction Tax Benefits (as finally determined pursuant to this Section 1.08), Final Cash or Final Net Working Capital is greater than Estimated Transaction Tax Benefits, Estimated Cash or Estimated Net Working Capital, respectively, then the Merger Consideration shall be increased by the amount of any such excess, (ii) if Transaction Tax Benefits (as finally determined pursuant to this Section 1.08), Final Cash or Final Net Working Capital is less than Estimated Transaction Tax Benefits, Estimated Cash or Estimated Net Working Capital, respectively, then the Merger Consideration shall be reduced by the amount of any such shortfall, (iii) if the Pre-Closing Income Tax Amount (as finally determined pursuant to this Section 1.08), Final Indebtedness or Final Transaction Expenses is less than the Estimated Pre-Closing Income Tax Amount, Estimated Indebtedness or Estimated Transaction Expenses, respectively, then the Merger Consideration shall be increased by the amount of any such shortfall, and (iv) if the Pre-Closing Income Tax Amount (as finally determined pursuant to this Section 1.08), Final Indebtedness or Final Transaction Expenses is greater than the Estimated Pre-Closing Income Tax Amount, Estimated Indebtedness or Estimated Transaction Expenses, respectively, then the Merger Consideration shall be reduced by the amount of any such excess. If the adjustments, if any, under this Section 1.08(c) result in an aggregate increase in the Merger Consideration, the Purchaser shall pay to the Representative (on behalf of the Unitholders to the extent of each Unitholder’s Common Percentage) the amount of such increase. Conversely, if such adjustments result in an aggregate reduction in the Merger Consideration, the Representative (on behalf of the Unitholders to the extent of each Unitholder’s Common Percentage) shall promptly (but in any event within five (5) business days) provide notice to the Escrow Agent to deliver to the Purchaser each Unitholder’s portion of the amount of such reduction from the Adjustment Escrow Account; provided that if the funds in the Adjustment Escrow Account are insufficient to

 

1.09 Post-Closing Adjustment Payment. The Purchaser shall promptly (but in any event within five (5) business days) deliver to the Representative (on behalf of the Unitholders to the extent of each Unitholder’s Common Percentage) any amounts finally determined pursuant to Section 1.08 to be due by the Purchaser, by wire transfer of immediately available funds to one or more accounts designated by the Representative to the Purchaser. The Representative shall promptly deliver such amounts to the Unitholders on a pro rata basis according to each Unitholder’s Common Percentage (subject, in the case of amounts payable in respect of any Special Vesting Class B Common Units, to Section 10.05). The Representative (on behalf of the Unitholders to the extent of each Unitholder’s Common Percentage) and the Purchaser shall promptly (but in any event within five (5) business days) jointly cause the Escrow Agent to deliver to the Purchaser from the Adjustment Escrow Account any amounts finally determined pursuant to Section 1.08 to be owed to the Purchaser, by wire transfer of immediately available funds to one or more accounts designated by the Purchaser to the Representative. The Representative (on behalf of the Unitholders to the extent of each Unitholder’s Common Percentage) shall promptly (but in any event within five (5) business days) pay any Shortfall Amount to the Purchaser by wire transfer of immediately available funds to one or more accounts designated by the Purchaser to the Representative. The amount of any payment to be made pursuant to this Section 1.09 shall bear interest from and including the Closing Date to but excluding the date of payment at a rate per annum equal to the prime rate as published in The Wall Street Journal, Eastern Edition in effect from time to time during the period from the Closing Date to the date of payment. Such interest shall be payable at the same time as the payment to which it relates and shall be calculated daily on the basis of a year of 365 days and the actual number of days elapsed. Title and all rights to any amounts remaining in the Adjustment Escrow Account shall automatically transfer to the Representative (on behalf of the Unitholders) on the date on which all payments have been made pursuant to this Section 1.09, and the Purchaser shall take all actions reasonably necessary to cause the Escrow Agent to release such remaining amounts to the Representative (on behalf of the Unitholders) as soon as reasonably practicable thereafter. The Representative will deliver any such amounts to the Unitholders in accordance with their Common Percentages (subject, in the case of amounts payable in respect of any Special Vesting Class B Common Units, to Section 10.05).

1.10 Aggregate Payments. Notwithstanding anything in this Agreement to the contrary, the aggregate payments to be made by the Purchaser to the Unitholders, after final resolution of the Final Cash, Final Indebtedness, Final Net Working Capital and Final Transaction Expenses, under this Article 1 and Article 2 shall in no event exceed the sum of (i) the Base Consideration plus (ii) the amount, if any, by which the Final Net Working Capital

 

 

exceeds the Target Net Working Capital plus (iii) the amount of Final Cash plus (iv) Transaction Tax Benefits, minus (v) the Pre-Closing Income Tax Amount. In addition, and for the avoidance of doubt, at the Closing the Unitholders shall not be entitled to receive any Merger Consideration unless the sum of (i) the Base Consideration, minus (ii) Estimated Indebtedness, plus (iii) the amount, if any, by which Estimated Net Working Capital exceeds the Target Net Working Capital, minus (iv) the amount, if any, by which Estimated Net Working Capital is less than the Target Net Working Capital, minus (v) the Escrow Amount, minus (vi) the Holdback Amount, plus (vii) Estimated Cash, minus (viii) the amount of Estimated Transaction Expenses, plus (ix) the amount of Estimated Transaction Tax Benefits, minus (x) the Estimated Pre-Closing Income Tax Amount is greater than zero.

2.01 The Closing. The closing of the transactions contemplated by this Agreement (the “Closing”) shall take place at the offices of Kirkland & Ellis LLP located at 300 North LaSalle Street, Chicago, Illinois at 10:00 a.m. on the third (3rd) business day following full satisfaction or due waiver of all of the closing conditions set forth in Article 3 hereof (other than those to be satisfied at the Closing) or on such other date, or at such other time, as the Purchaser and the Representative may mutually agree. The date of the Closing is referred to herein as the “Closing Date.”

2.02 The Closing Transactions. Subject to the terms and conditions set forth in this Agreement, the parties hereto shall consummate the following transactions on the Closing Date:

(a) the Company and the Merger Sub shall cause the Certificate of Merger to be executed and filed with the Secretary of State of the State of Delaware;

(b) the Purchaser shall deliver to the Paying Agent the Closing Residual Cash Consideration (less the Special Vesting Class B Escrow Amount), as determined in accordance with Sections 1.02 and 1.04, by wire transfer of immediately available funds to one or more accounts designated by the Paying Agent to the Purchaser;

(c) the Purchaser shall deliver to the Representative (on behalf of each Unitholder) the Holdback Amount, by wire transfer of immediately available funds to one or more accounts designated by the Representative to the Purchaser;

(d) the Purchaser shall deposit (i) $5,000,000 (the “Adjustment Escrow Amount”) into an escrow account (the “Adjustment Escrow Account”) established pursuant to the terms and conditions of an escrow agreement, substantially in the form of Exhibit B attached hereto (the “ Escrow Agreement”), by and among the Purchaser, the Representative and Wells Fargo Bank, National Association, as escrow agent (the “Escrow Agent”), and (ii) $25,000,000 (the “Indemnity Escrow Amount” and, together with the Adjustment Escrow Amount, the “Escrow Amount”) into an escrow account (the “Indemnity Escrow Account”) established pursuant to the terms and conditions of the Escrow Agreement;

 

 

(e) the Purchaser shall deposit the Special Vesting Class B Escrow Amount into an escrow account established pursuant to the terms and conditions of the Escrow Agreement;

(f) the Company shall deliver to the Purchaser payoff letters, which shall be reasonably satisfactory to the Purchaser, from each holder of Indebtedness listed on the Indebtedness Payoff Schedule, and shall make arrangements reasonably satisfactory to the Purchaser for each such holder of Indebtedness to deliver all related Lien releases to the Purchaser as soon as practicable after the Closing;

(g) the Purchaser shall repay, on behalf of the Company and its Subsidiaries, all amounts required to be paid under the payoff letters delivered pursuant to Section 2.02(f) in order to fully discharge the Indebtedness owed to the Persons thereunder, by wire transfer of immediately available funds to the accounts designated in such payoff letters;

(h) the Purchaser, the Company and the Representative (on behalf of the Unitholders) shall make such other deliveries as are required by Article 3 hereof;

(i) the Purchaser shall pay, on behalf of the Unitholders and the Company and its Subsidiaries (as applicable), the Transaction Expenses, by wire transfer of immediately available funds to the accounts designated on the Transaction Expenses Schedule; and

(j) either (i) the Company shall deliver to the Purchaser a certificate, duly completed and executed pursuant to Section 1.1445-11T(d)(2) of the Treasury Regulations, certifying that fifty percent or more of the value of the gross assets of the Company does not consist of United States real property interests, or that ninety percent or more of the value of the gross assets of the Company does not consist of United States real property interests plus cash or cash equivalents, or (ii) each Unitholder shall deliver to Purchaser a non-foreign affidavit dated as of the Closing Date in form and substance as required by the Treasury Regulations issued pursuant to Code Section 1445 stating that such Unitholder is not a “foreign person” as defined in Code Section 1445.

3.01 Conditions to the Purchaser’s and the Merger Sub’s Obligations. The obligations of the Purchaser and the Merger Sub to consummate the transactions contemplated by this Agreement are subject to the satisfaction (or waiver by the Purchaser and the Merger Sub in writing) of the following conditions as of the Closing:

(a) (i) The representations and warranties set forth in the first two sentences of Section 4.01, the first three sentences of Section 4.02, the first sentence, the last sentence and subsection (i) of the second sentence of Section 4.03, the first three sentences and the second to last sentence of Section 4.04 and Section 4.19 of this Agreement shall be true and correct (without giving effect to any materiality or Material Adverse Effect qualification or exception contained therein) in all material respects as of the Closing Date as though then made and as though the Closing Date were substituted for the date of this Agreement throughout such

 

 

representations and warranties, (ii) the other representations and warranties set forth in Article 4 (other than those representations and warranties that address matters as of particular dates) shall be true and correct (without giving effect to any materiality or Material Adverse Effect qualification or exception contained therein) as of the Closing Date as though then made and as though the Closing Date were substituted for the date of this Agreement throughout such representations and warranties, and (iii) the other representations and warranties set forth in Article 4 that address matters as of particular dates shall be true and correct (without giving effect to any materiality or Material Adverse Effect qualification or exception contained therein) as of such dates, except where the failure of such representations and warranties referenced in the immediately preceding clauses (ii) and (iii) to be so true and correct has not had and would not have a Material Adverse Effect;

(b) The Company shall have performed in all material respects the covenants and agreements required to be performed by it under this Agreement at or prior to the Closing;

(c) The applicable waiting periods, if any, under the HSR Act shall have expired or been terminated, and all other similar antitrust and competition approvals required in order to consummate the transactions contemplated by this Agreement shall have been obtained;

(d) No judgment, decree or order shall have been entered and not withdrawn, and no provision of applicable Law shall be in effect, which would prevent the performance of this Agreement or the consummation of any of the transactions contemplated hereby, declare unlawful the transactions contemplated by this Agreement or cause such transactions to be rescinded;

(e) The Representative and the Escrow Agent shall have executed and delivered the Escrow Agreement;

(f) If not sold to a third party prior to such time, the Company shall have transferred title to the processing facility located at 4343 Bolthouse Lane Buttonwillow, California (“West Plant”) from the Company and/or its Subsidiary which is the current record owner thereof to the Representative or an Affiliate thereof;

(g) The Company (or the Representative) shall have delivered to the Purchaser each of the following:

(h) the Company shall have delivered the resignations of all officers, directors and managers of the Company and each of its Subsidiaries, to the extent requested by the Purchaser prior to Closing;

(i) since the date of this Agreement, there shall not have been any event, occurrence, development or state of circumstances or facts that has had or would have a Material Adverse Effect; and

(j) the Promissory Notes shall have been repaid in full (which such repayment may, in the sole discretion of the Company, be made by an offset of any bonuses or other payment obligations which the Company or its Subsidiaries may owe to such noteholder or his Affiliates).

3.02 Conditions to the Company’s Obligations. The obligation of the Company to consummate the transactions contemplated by this Agreement is subject to the satisfaction (or waiver by the Company in writing) of the following conditions as of the Closing:

(a) (i) The representations and warranties set forth in Article 5 (other than those representations and warranties that address matters as of particular dates) shall be true and correct (without giving effect to any materiality qualification or exception contained therein) in all material respects as of the Closing Date as though then made and as though the Closing Date were substituted for the date of this Agreement throughout such representations and warranties, and (ii) the representations and warranties set forth in Article 5 that address matters as of particular dates shall be true and correct (without giving effect to any materiality qualification or exception contained therein) in all material respects as of such dates;

(b) The Purchaser and the Merger Sub shall have performed in all material respects all the covenants and agreements required to be performed by them under this Agreement at or prior to the Closing;

(c) The applicable waiting periods, if any, under the HSR Act shall have expired or been terminated, and all other similar antitrust and competition approvals required in order to consummate the transactions contemplated by this Agreement shall have been obtained;

(d) No judgment, decree or order shall have been entered and not withdrawn, and no provision of applicable Law shall be in effect, which would prevent the performance of this Agreement or the consummation of any of the transactions contemplated hereby, declare unlawful the transactions contemplated by this Agreement or cause such transactions to be rescinded;

(e) Purchaser shall not cause the Company or any of its Subsidiaries to (i) incur any Indebtedness in connection with the consummation of the transactions contemplated by

this Agreement or (ii) pay any portion of the Merger Consideration using cash from the Company or its Subsidiaries.

(f) The Purchaser and the Escrow Agent shall have executed and delivered the Escrow Agreement; and

(g) The Purchaser shall have delivered to the Representative each of the following:

The Company represents and warrants to the Purchaser that the statements in this Article 4 are correct and complete as of the date of this Agreement and as of the Closing Date, except as set forth in the schedules accompanying this Agreement (the “Disclosure Schedules”). The Disclosure Schedules have been arranged for purposes of convenience in separately titled sections corresponding to sections of this Agreement; however, each section of the Disclosure Schedules shall be deemed to incorporate by reference all information disclosed in any other section of the Disclosure Schedules where the applicability of the information set forth in such other section would be readily apparent. Capitalized terms used in the Disclosure Schedules and not otherwise defined therein have the meanings given to them in this Agreement.

4.01 Organization and Power. The Company is a limited liability company duly organized, validly existing and in good standing under the Laws of the State of Delaware, and the Company has all requisite limited liability company power and authority and all material authorizations, licenses and permits necessary to own or lease and operate its properties and to carry on its businesses as now conducted. The Company is qualified to do business and is in good standing in every jurisdiction in which its ownership of property or the conduct of its businesses as now conducted requires it to so qualify, except where the failure to be so qualified has not had and would not have a Material Adverse Effect.

4.02 Subsidiaries. The Company’s Subsidiaries are set forth on the Subsidiary Schedule. Except as set forth on the Subsidiary Schedule, all of the outstanding capital stock or other equity interests of each such Subsidiary identified on the Subsidiary Schedule is owned by the Company, directly or indirectly, free and clear of any Lien (including any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests). Except as set forth on the Subsidiary Schedule, the Company’s Subsidiaries do not have any other capital stock, equity interests, or interests containing any equity features authorized, issued or

 

 

outstanding, and there are no agreements, subscriptions, options, warrants, conversion or exchange rights or other rights or arrangements existing or outstanding which provide for the sale or issuance of any of the foregoing by any Subsidiary of the Company (collectively, the “Subsidiary Securities”). Except as set forth on the Subsidiary Schedule, neither the Company nor any of its Subsidiaries owns or holds, or has the right to acquire, any stock, partnership interest, joint venture interest or other equity ownership interest in any other corporation, organization or entity. Each of the Subsidiaries identified on the Subsidiary Schedule is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization. Each of the Subsidiaries identified on the Subsidiary Schedule has all requisite organizational power and authority and all authorizations, licenses and permits necessary to own its properties and to carry on its businesses as now conducted and is qualified to do business and in good standing in every jurisdiction in which its ownership of property or the conduct of its businesses as now conducted requires it to so qualify, except in each case where the failure to hold such authorizations, licenses or permits or to be so qualified has not had and would not have a Material Adverse Effect.

4.03 Authorization; No Breach; Valid and Binding Agreement. The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby have been duly and validly authorized by all requisite limited liability company action, including the Unitholder Consent (which has been delivered to the Purchaser concurrently with the execution of this Agreement), and no other limited liability company proceedings on the Company’s or Unitholders’ part are necessary to authorize the execution, delivery or performance of this Agreement and the consummation by the Company of the transactions contemplated hereby. Except as set forth on the Authorization Schedule, the execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby do not conflict with, constitute a default (or event that, with notice or lapse of time or both, would constitute a default) under, result in a breach or violation of, give rise to any right of termination, cancellation, acceleration or alteration of any right or obligation or a loss or alteration of any benefit of the Company or any of its Subsidiaries under, or result in the creation of any Lien (other than Permitted Liens) upon any assets of the Company or any of its Subsidiaries under, (i) the provisions of the Company’s or any of its Subsidiaries’ certificates or articles of incorporation or bylaws (or equivalent organizational documents), (ii) any applicable Law or (iii) any Material Contract or material Real Property Lease to which the Company or any of its Subsidiaries is a party, except, in the case of clauses (ii) and (iii), as would not reasonably be expected, individually or in the aggregate, to be material to the Company and its Subsidiaries taken as a whole. This Agreement has been duly executed and delivered by the Company and, assuming that this Agreement is a valid and binding obligation of the Purchaser and the Merger Sub, constitutes a valid and binding obligation of the Company, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies.

4.04 Membership Interests. 361,481.42 Class A Common Units and 39,879 Class B Common Units are issued and outstanding and are owned of record by the Unitholders in the amounts set forth on the Unitholders Schedule. All of the outstanding Units of the Company have been duly authorized and are validly issued. Except as set forth on the Unitholders

Schedule, the Company does not have any other Units, equity interests, or interests containing any equity features authorized, issued or outstanding, and there are no agreements, subscriptions, options, warrants, conversion or exchange rights or other rights or arrangements existing or outstanding which provide for the sale or issuance of any of the foregoing by the Company (collectively, the “ Company Securities”). Except as set forth on the Unitholders Schedule, there are no agreements or other obligations (contingent or otherwise) which require the Company or any Subsidiary of the Company to repurchase or otherwise acquire any Company Securities. Except for the Holdco LLC Agreement and the Equity Agreements, there are no agreements or understandings in effect with respect to the voting or transfer of any Company Securities.

4.05   Financial Statements; Undisclosed Liabilities.

(a) The Financial Statements Schedule consists of the following financial statements (the “Financial Statements”): (i) the Company’s unaudited consolidated balance sheet as of May 31, 2012 and the related statements of income and cash flows for the two-month period then ended, (ii) the Company’s audited consolidated balance sheet as of March 31, 2012 and the related statement of income and cash flows for the fiscal year then ended and (iii) the Company’s audited consolidated balance sheets as of March 31, 2010 and March 31, 2011 and the related statements of income and cash flows for the fiscal years then ended. The Financial Statements have been based upon the information contained in the Company’s and its Subsidiaries’ books and records, have been prepared in accordance with GAAP, consistently applied throughout the periods indicated, and present fairly in all material respects the financial condition, results of operations and cash flows of the Company and its Subsidiaries (taken as a whole) as of the times and for the periods referred to therein, subject in the case of the unaudited financial statements to (i) the absence of footnote disclosures and other presentation items and (ii) changes resulting from normal year-end adjustments.

(b) There are no liabilities of the Company or any of its Subsidiaries of any kind whatsoever, whether accrued, contingent, absolute, determined, determinable or otherwise, other than (i) liabilities provided for in the 2012 Balance Sheet or disclosed in the notes thereto; (ii) liabilities incurred in the ordinary course of business since the date of the 2012 Balance Sheet; and (iii) other undisclosed liabilities which, individually or in the aggregate, are not material to the Company and its Subsidiaries, taken as a whole (and excluding obligations under contracts set forth on the Material Contracts Schedule or under other contracts and commitments entered into in the ordinary course of business which are not required to be disclosed thereon due to specified dollar thresholds or other limitations (but not liabilities for breaches thereof)).

4.06 Absence of Certain Developments. Since the date of the 2012 Balance Sheet, there has not been a Material Adverse Effect. Except as set forth on the Developments Schedule and except as expressly contemplated by this Agreement, since the date of the 2012 Balance Sheet, neither the Company nor any of its Subsidiaries has:

(a) effected any recapitalization, reclassification, unit or stock dividend, unit or stock split or like change in its capitalization;

(b) amended its certificate of formation or articles of incorporation or bylaws or limited liability company agreement (or equivalent organizational documents), or any Equity Agreement;

(c) mortgaged, pledged or subjected to any Lien, any material portion of its assets, except Permitted Liens;

(e) sold, assigned, transferred, licensed or otherwise disposed of any material Company Intellectual Property;

(f)  allowed to lapse or abandoned any material Company Intellectual Property;

(l) (i) terminated, entered into, established, adopted, amended, modified or materially increased benefits under or made new grants or awards under, any Plan, or any trust agreement related thereto, (ii) taken any action to accelerate the vesting or exercisability of any unvested units, (iii) granted or increased any material severance or termination pay to any employee of the Company or any of its Subsidiaries or (iv) entered into any material employment agreement (or materially amended any existing employment agreement) with any employee of the Company or any of its Subsidiaries;

(m) increased compensation payable to any existing employee of the Company or any of its Subsidiaries, other than in connection with promotions in the ordinary course of business;

(p) entered into, amended or modified in any material respect or terminated any Material Contract (or any other contract which, had it not been so amended, modified or terminated, would have constituted a Material Contract), other than in the ordinary course of business;

(q) changed the Company’s method of accounting, except as required by concurrent changes in GAAP, as agreed to by its independent public accountants;

(r) settled, or offered or proposed to settle, any material litigation, investigation, arbitration, proceeding or other claim involving or against the Company or any of its Subsidiaries; or

(s) agreed, resolved or committed to do any of the foregoing.

4.07   Title to Properties.

(a) Except as set forth on the Liens Schedule, the Company and its Subsidiaries own good and marketable title to, or hold pursuant to valid and enforceable leases, all of the material tangible personal property shown to be owned or leased by them on the 2012 Balance Sheet or acquired after the date of the 2012 Balance Sheet, free and clear of all Liens, except for Permitted Liens.

(b) The leased real property at the addresses listed on the Real Property Schedule (the “Leased Real Property”) constitutes all of the real property leased by the Company or its Subsidiaries. The leases under which the Company and its Subsidiaries lease the Leased Real Property (the “Real Property Leases ”) are in full force and effect, and the Company or a Subsidiary of the Company holds a valid and enforceable leasehold interest in the Leased Real Property to which each Real Property Lease relates, subject to the application of any bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies, and such leasehold interests shall be free and clear of all Liens, licenses, covenants, rights of way and subleases as of the Closing Date, except Permitted Liens and as set forth on the Real Property Schedule. The Real Property Schedule sets forth a complete and accurate list of the Real Property Leases. The

 

 

Company has delivered or made available to the Purchaser complete and accurate copies of each Real Property Lease, and no Real Property Lease has been modified in any respect, except as disclosed on the Real Property Schedule. Neither the Company nor any of its Subsidiaries is in breach or default in any material respect under, and no event or circumstance has occurred which, with notice or lapse of time or both, would constitute a breach or default in any material respect under or permit termination under, any Real Property Lease. To the knowledge of the Company, no other party (other than Company and its Subsidiaries) to any Real Property Lease is in breach of or default under such Real Property Lease in any material respect.

(c) The owned real property at the addresses listed on the Real Property Schedule (the “Owned Real Property” and, together with the Leased Real Property, the “Real Property”) constitutes all of the real property owned by the Company or its Subsidiaries. With respect to each Owned Real Property, except as set forth on the Real Property Schedule: (i) the Company or one of its Subsidiaries (as the case may be) has good and marketable fee simple title to such Owned Real Property, which shall be free and clear of all Liens, covenants, rights of way, leases and subleases as of the Closing Date, except Permitted Liens, (ii) neither the Company nor its Subsidiaries has leased or otherwise granted to any Person the right to use or occupy such Owned Real Property or any portion thereof, (iii) other than any rights of the Purchaser pursuant to this Agreement, there are no outstanding options, obligations to reconvey, rights of first offer or rights of first refusal to purchase such Owned Real Property or any portion thereof or interest therein, (iv) neither the Company nor any of its Subsidiaries is a party to any agreement or option to purchase any real property or interest therein relating to the business of the Company and its Subsidiaries, (v) to the Company’s knowledge, none of the structures on such Owned Real Property encroach upon real property of another Person, and no structure of any other Person substantially encroaches upon such Owned Real Property and (vi) such Owned Real Property, and its continued use, occupancy and operation as currently used, occupied and operated, do not, to the Company’s knowledge, constitute a nonconforming use under any applicable building, zoning, subdivision or other land use or similar applicable Law.

(d) The property and assets owned or leased by the Company or any of its Subsidiaries, or which they otherwise have the right to use, constitute all of the property and assets used or held for use in connection with the businesses of the Company or any Subsidiary of the Company and are adequate to conduct such businesses as currently conducted.

4.08   Tax Matters. Except as set forth on the Taxes Schedule:

(a) (i) The Company and its Subsidiaries have filed all material Tax Returns that are required to be filed by them (taking into account any extensions of time to file), (ii) all such Tax Returns were true and complete in all material respects, and (iii) the Company and its Subsidiaries have paid or properly accrued all Taxes shown as due on such Tax Returns. All material Taxes that the Company or any of its Subsidiaries is obligated to withhold from amounts owing to any employee, creditor or third party have been fully paid or properly accrued.

(b) No material Tax audits or administrative or judicial Tax proceedings are pending, threatened in writing or being conducted with respect to the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries has received from any taxing authority any (i) written notice indicating an intent to open an audit or other review or (ii) written

 

(c) Neither the Company nor any of its Subsidiaries (i) has been a member of an Affiliated Group filing a consolidated federal income Tax Return (other than a group the common parent of which was the Company or any of its Subsidiaries), (ii) has any liability for the Taxes of any Person (other than the Company or any of its Subsidiaries) under Section 1.1502-6 of the Treasury Regulations (or any similar provision of state, local or foreign Law), as a transferee or successor or by contract or (iii) is party to any Tax Sharing Agreement.

(d) Neither the Company nor any of its Subsidiaries has distributed stock of another Person, or has had its stock distributed by another Person, in a transaction within the two-year period ending on the date of this Agreement that was purported or intended to be governed in whole or in part by Section 355 or 361 of the Code.

(e) There are no Liens for material Taxes (other than Permitted Liens) upon any of the assets of the Company or any of its Subsidiaries.

(f) For U.S. federal income tax purposes, (i) each of the Company and Bolthouse Juice Products, LLC is treated as a partnership and (ii) each of Bolthouse Juice Holdings, LLC, Fresh Logistics, LLC, Bolthouse Farms Japan and Bolthouse do Brazil, Ltd. is treated as an entity disregarded from its owner.

(g) (i) The charges, accruals and reserves for Taxes with respect to the Company and its Subsidiaries reflected on the books of the Company and its Subsidiaries (excluding any provision for deferred income taxes) were adequate to cover Tax liabilities accruing through the end of the last period for which the Company and its Subsidiaries ordinarily record items on their respective books, and (ii) since the end of the last period for which the Company and its Subsidiaries ordinarily record items on their respective books, neither the Company nor any of its Subsidiaries has engaged in any transaction, or taken any other action, other than in the ordinary course of business, that would materially impact any Tax liability of the Company or any of its Subsidiaries.

(h) There are no requests for rulings or determinations in respect of any Tax pending in writing between the Company or any of its Subsidiaries and any Taxing Authority; and since the date of the 2012 Balance Sheet, none of the Representative, the Company, any of the Company’s Subsidiaries or any Affiliate of the Representative has, to the extent it would increase the aggregate Tax liability of the Company or its Subsidiaries for any Tax period, made or changed any material Tax election, changed any annual Tax accounting period, adopted or changed any material method of Tax accounting, filed any material amended Tax Return, entered into any closing agreement with respect to a material amount of Taxes, settled any material Tax claim or assessment, or surrendered any right to claim a material Tax refund, offset or other reduction in Tax liability.

 

(i) Subsection (i) of the Taxes Schedule contains a list of all jurisdictions (whether foreign or domestic) in which any income Tax Return is currently filed by the Company or any of its Subsidiaries.

(j) (i) None of the Company and any of the Company’s Subsidiaries is a direct or indirect beneficiary of a guarantee of tax benefits or any other arrangement that has the same economic effect (including an indemnity from a seller or lessee of property, or other insurance) with respect to any transaction or tax opinion relating to the Company or any of its Subsidiaries; and (ii) none of the Company and any of its Subsidiaries has participated in a “reportable transaction” within the meaning of Section 1.6011-4 of the Treasury Regulations.

(k) (i) Neither the Company nor any of its Subsidiaries will be required to include any adjustment in taxable income for any Post-Closing Tax Period under Section 481(c) of the Code (or any similar provision of the Tax laws of any jurisdiction) as a result of a change in method of accounting for a Pre-Closing Tax Period made prior to the Closing; (ii) neither the Company nor any of its Subsidiaries has an overall foreign loss (within the meaning of Section 904(f) of the Code) and (iii) neither the Company nor any of its Subsidiaries will be required to include for a Post-Closing Tax Period taxable income attributable to income economically realized in a Pre-Closing Tax Period as a result of the installment method or the look-back method (as defined in Section 460(b) of the Code).

(l) Subsection (l) of the Taxes Schedule contains a list of each Tax Grant. The Company and its Subsidiaries have complied in all material respects with the conditions stipulated in each Tax Grant, no submissions made to any Taxing Authority in connection with obtaining any Tax Grant contained any material misstatement or omission and the transactions contemplated by this Agreement will not adversely affect the eligibility of the Company or any of its Subsidiaries for any Tax Grant

(m) Neither the Company nor any of its Subsidiaries has entered into any agreement or arrangement with any Taxing Authority with regard to the Tax liability of the Company or any of its Subsidiaries, e.g., a private letter ruling, affecting any Tax period for which the applicable statute of limitations, after giving effect to extensions or waivers, has not expired.

4.09   Contracts and Commitments.

(a) Except as set forth on the Contracts Schedule, neither the Company nor any of its Subsidiaries is party to any written or oral:

 

 

 

 

(b) The Purchaser either has been supplied with, or has been given access to, a true and correct copy of all contracts listed or required to be listed on the Contracts Schedule (the “Material Contracts”), together with all amendments, waivers or other changes thereto.

(c) With respect to each Material Contract: (i) such contract is a valid and binding agreement of the Company and/or its Subsidiaries, as applicable, enforceable in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies; (ii) none of the Company or any of its Subsidiaries is in breach or default in any material respect, nor has the Company or any of its Subsidiaries taken any action or any event or circumstance occurred which, with notice or lapse of time or both, would constitute a breach or default in any material respect, or permit termination, material modification or acceleration or loss of a material benefit, as applicable, under such contract; and (iii) to the Company’s knowledge, no other party is in breach or default in any material respect under such contract.

4.10   Intellectual Property.

(a) The Intellectual Property Schedule sets forth a complete and accurate list of all of the following included in the Company Intellectual Property: (i) patents and patent applications; (ii) trademark and service mark registrations and applications; (iii) Internet domain names; and (iv) registered copyrights (collectively, the “Registered Intellectual Property”). The Company and its Subsidiaries have exercised their reasonable business judgment in the protection and maintenance of the Registered Intellectual Property, and have taken all commercially reasonable steps necessary to protect and maintain their rights in all material Registered Intellectual Property (including the payment of all applicable maintenance fees and the filing of applicable statements of use).

(b) Except as set forth on the Intellectual Property Schedule: (i) the Company and/or its Subsidiaries, as the case may be, are the sole and exclusive owners of all of the material Company Intellectual Property (including all Registered Intellectual Property) and hold all their right, title and interest in and to all of the Company Intellectual Property and Licensed Intellectual Property free and clear of all Liens except Permitted Liens; (ii) neither the Company nor any of its Subsidiaries nor the conduct of their respective businesses infringes, misappropriates, dilutes or otherwise violates the Intellectual Property of any other Person in any respect material to the Company or any of its Subsidiaries (or has done so at any time within the preceding six (6) year period); (iii) none of the Registered Intellectual Property has been adjudged invalid or unenforceable in whole or in part, and, to the Company’s knowledge, all of such Registered Intellectual Property is valid and enforceable; (iv) to the Company’s knowledge, the Company Intellectual Property has not been infringed, misappropriated, diluted or otherwise violated by any Person; and (v) the Company and its Subsidiaries own or have the valid right to

 

 

use all Intellectual Property necessary for, or used or held for use respectively by them in, the operation of their respective businesses, except for any failure to own or have such right to use that have not had and would not have a Material Adverse Effect.

(c) There is no claim, action, suit, investigation or proceeding pending or, to the Company’s knowledge, threatened to the Company in writing in which it is alleged that the Company or any of its Subsidiaries, or any of their respective present or former officers, directors or employees, in each case with respect to the operations of the business of the Company or any of its Subsidiaries, is infringing, misappropriating, diluting or otherwise violating any Intellectual Property, or the right of publicity or privacy, of any Person (or has done so at any time within the preceding six (6) year period), and during the two (2) year period prior to the date of this Agreement, neither the Company nor any of its Subsidiaries has received any written notice of any such allegation (including any offer to license Intellectual Property that could reasonably be interpreted as alleging infringement, misappropriation, dilution or other violation of any Person’s Intellectual Property).

(d) The Company and its Subsidiaries take reasonable steps in accordance with normal industry practice to protect their material trade secrets and the confidentiality of any other material Company Intellectual Property the value of which is contingent upon maintaining the confidentiality thereof.

(e) The Company and its Subsidiaries have taken reasonable steps in accordance with normal industry practice to protect and maintain the security and integrity of the IT Assets and to protect them against unauthorized use, modification, or access thereto, or the introduction of any viruses or other unauthorized or damaging or corrupting code or elements. To the Company’s knowledge, the IT Assets: (i) operate and perform in all material respects in accordance with their specifications and documentation and as required for the conduct of the respective businesses of the Company and its Subsidiaries; (ii) have not materially malfunctioned or failed within the past two (2) years; (iii) are free from defects, viruses, worms, Trojan horses or similar flaws or harmful programs; and (iv) have not been the subject of any actual or attempted intrusion or unauthorized access. The Company and its Subsidiaries have implemented reasonable backup and disaster recovery technology consistent with normal industry practice.

 

4.11 Litigation. Except as set forth on the Litigation Schedule, there are no charges, complaints, suits, investigations or proceedings pending or, to the Company’s knowledge, threatened against the Company or any of its Subsidiaries, at law or in equity, before or by any Governmental Authority which (a) seeks more than $100,000 in damages or has as its principal remedy injunctive relief, or (b) in any manner challenges or seeks to prevent, enjoin, alter or materially delay the transactions contemplated hereunder, and neither the Company nor any of its Subsidiaries is subject to any outstanding judgment, order, injunction, ruling or decree of any court or other Governmental Authority.

4.12 Governmental Consents. Except for the applicable requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), and except as set forth on the Governmental Consents Schedule, no material permit, consent, approval or authorization of, or declaration to or filing with, any Governmental Authority is

 

 

required to be obtained by the Company or its Subsidiaries in connection with the execution, delivery or performance of this Agreement by the Company or the consummation of the transactions contemplated hereby.

4.13   Employee Benefit Plans.

(a) Except as listed on the Employee Benefits Schedule, with respect to employees of the Company or any of its Subsidiaries, neither the Company nor any of its Subsidiaries maintains, sponsors, administers or contributes to (or has any obligation to contribute to) or has any material liability with respect to any (i) “employee benefit plan” (as defined under Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), (ii) compensation, employment, individual consulting, severance, termination protection, change in control, transaction bonus or retention plan, agreement, arrangement, program or policy, or (iii) other material compensation or benefit plan, program, policy or arrangement covering any employee or former employee of the Company or any of its Subsidiaries (or their dependents), in each case whether or not written (collectively referred to as the “Plans”). Each of the Plans that is intended to be qualified under Section 401(a) of the Code has timely received a favorable determination letter from the Internal Revenue Service or is a prototype plan that is entitled to rely on an opinion letter issued by the Internal Revenue Service to the prototype plan sponsor regarding qualification of the form of the prototype plan and, to the Company’s knowledge, there are no facts or circumstances that would reasonably be expected to jeopardize the qualification of such Plan. The Plans comply in form and in operation in all material respects with their terms and in all material respects with the requirements of the Code and ERISA.

(b) With respect to the Plans, (i) all required contributions have been made or properly accrued and (ii) there are no actions, suits or claims pending or, to the Company’s knowledge, threatened, other than routine undisputed claims for benefits.

(c) No Plan is subject to Title IV of ERISA and neither the Company nor any of the Company’s Subsidiaries maintains, sponsors, administers contributes to (or has any obligation to contribute to) or has any liability with respect to, or has in the past six years sponsored, maintained, administered or contributed to (or had any obligation to contribute to), any plan subject to Title IV of ERISA, including any multiemployer plan. Neither the Company nor any of its Subsidiaries has, nor could any such entities reasonably be expected to have, any liability under Title IV of ERISA with respect to any Plan subject to Title IV of ERISA sponsored, maintained, administered or contributed or required to be contributed to by the Company or any ERISA Affiliate of the Company prior to the Closing.

(d) The Company has made available to the Purchaser current, true and complete copies of, to the extent applicable, (i) each Plan, (ii) the most recent determination letter received from the Internal Revenue Service regarding each Plan, if any, (iii) the most recent summary plan description, (iv) the latest Form 5500 annual report schedules, and audited financial statements, if any, for each Plan and (v) any related trust agreement or other funding instrument for each Plan.

 

(e) Except as set forth on the Employee Benefits Schedule, neither the execution of this Agreement nor the consummation of the transactions contemplated hereby (either alone or together with any other event) will (i) entitle any current or former director, officer, employee or individual independent contractor of the Company or any of its Subsidiaries to any payment or benefit under any Plan, including any bonus, retention, severance, retirement or job security payment or benefit, (ii) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount payable or trigger any other obligation under, any Plan or (iii) limit or restrict the right of the Company or any of its Subsidiaries or, after the Closing, the Purchaser, to merge, amend or terminate any Plan.

(f) Neither the Company nor any of its Subsidiaries has any current or projected liability for, and no Plan provides or promises, any post-employment or post-retirement medical, dental, hospitalization or life insurance benefits (whether insured or self-insured) to any current or former director, officer, employee or individual independent contractor (other than coverage mandated by applicable Law).

4.14 Labor and Employment. Neither the Company nor any of its Subsidiaries is party to, or is currently negotiating in connection with entering into, any collective bargaining agreements or relationships applicable to persons employed thereby, and to the Company’s knowledge, no union organizing efforts are underway with respect to such persons. Except as set forth on the Labor and Employment Schedule, (A) the Company and its Subsidiaries are being, and since January 1, 2008 have been, operated in compliance in all material respects with all applicable Laws relating to labor, employment, and employment practices, including those relating to wages, hours, equal employment opportunity, discrimination, work authorization, immigration, employee classification, and payment and withholding of taxes, and (B) there are no unfair labor practice charges or complaints or labor arbitrations or grievances pending, or, to the Company’s knowledge, threatened, against the Company or any of its Subsidiaries. There is no strike, slowdown, work stoppage or lockout, or, to the Company’s knowledge, threat thereof, by or with respect to any employees of the Company or any of its Subsidiaries. There are no material charges, complaints, suits or proceedings against the Company or any of its Subsidiaries alleging breach or violation of any labor or employment Law.

4.15 Insurance. The Insurance Schedule lists each material insurance policy maintained by the Company and its Subsidiaries. Each such insurance policy is in full force and effect, all premiums due thereon have been paid, and neither the Company nor any of its Subsidiaries is in material default with respect to its obligations under any such insurance policy. There is no claim by the Company or any Subsidiary of the Company pending under any such policies as to which coverage has been questioned, denied or disputed by the underwriters of such policies or in respect of which such underwriters have reserved their rights. Except as set forth on the Insurance Schedule, neither the Company nor any of its Subsidiaries has any self-insurance or co-insurance programs.

4.16   Compliance with Laws; Licenses and Permits.

(a) Except as set forth on the Compliance with Laws Schedule, the Company and each of its Subsidiaries are, and since January 1, 2008 have been, in compliance in all

 

 

material respects with all applicable Laws of all applicable Governmental Authorities and, to the Company’s knowledge, neither the Company or any Subsidiary of the Company is under investigation with respect to, or has been since January 1, 2008, threatened to be charged with or given notice of any violation of, any applicable Law.

(b) Without limiting the generality of Section 4.16(a), the Company and each of its Subsidiaries has since January 1, 2008 been, and the products and inventory of the Company and its Subsidiaries have since January 1, 2008 been manufactured, distributed, developed, labeled, packaged, advertised, sold or otherwise processed, in compliance in all material respects with all Food Safety and Marketing Laws, and no claim has been filed against the Company or any of its Subsidiaries or, to the knowledge of the Company, against any other Person that manufactures, distributes, develops, labels, packages, advertises, stores or otherwise processes any products on behalf of the Company or any of its Subsidiaries, alleging a violation of any such Food Safety and Marketing Laws which, individually or in the aggregate, would reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole. Neither the Company nor any of its Subsidiaries has, since January 1, 2008, as of the date of shipment, released products that are “adulterated,” “misbranded,” “contaminated,” or “mislabeled” in any material respect within the meaning of any applicable Food Safety and Marketing Laws, or otherwise unfit for human consumption under any applicable Food Safety and Marketing Laws. Each of the products produced or sold by the Company and its Subsidiaries has conformed since January 1, 2008 in all material respects to any promises or affirmations of fact made on the container or label or marketing materials for such product or in connection with its sale. Since January 1, 2008 there have been no claims, actions, suits, arbitrations, examinations or investigations, hearings, inquiries or proceedings by or before any Governmental Authority pending or, to the knowledge of the Company, threatened against the Company or any of its Subsidiaries for product liability, in each case, in respect of any product manufactured, sold or distributed at any time by or on behalf of the Company or any of its Subsidiaries, including any claim, action, suit, arbitration, examination or investigation, hearing, inquiry or proceeding on account of any express or implied warranty, except for normal returns and allowances. Since January 1, 2008, there have not been any recalls, whether voluntary, required by any Governmental Authority or otherwise, of any products manufactured, distributed or sold by the Company or its Subsidiaries. Since January 1, 2008, each of the products produced or sold by the Company and its Subsidiaries is, and at all times up to and including the sale thereof has been, (i) in compliance in all material respects with all applicable Laws and (ii) fit for the ordinary purposes for which it is intended to be used. There is no design defect with respect to any of such products and each of such products contains adequate warnings, presented in a reasonably prominent manner, in accordance with applicable Laws, and current industry practice with respect to its contents and use.

(c) The Permits Schedule correctly describes each material license, franchise, permit, certificate, approval or other authorization affecting, or relating in any way to, the assets or business of the Company and its Subsidiaries (the “Permits”), together with the name of the Governmental Authority issuing such Permit. Except as set forth on the Permits Schedule, (i) the Permits are valid and in full force and effect, (ii) neither the Company nor any of its Subsidiaries is in default under, and no condition exists that with notice or lapse of time or both would constitute a default under, the Permits and (iii) none of the Permits will be terminated or impaired or become terminable, in whole or in part, as a result of the transactions contemplated

 

hereby, except, in each case, for such items which would not, individually or in the aggregate, be material. No suspension or cancellation is threatened of any Permits, except for such Permits where the suspension or cancellation thereof would not, individually or in the aggregate, be material.

4.17   Environmental Compliance.  Except as set forth on the Environmental Schedule:

(a) The Company and its Subsidiaries are, and since January 1, 2008 have been, in material compliance with all Environmental Requirements.

(b) The Company and its Subsidiaries have obtained and possess all material licenses, franchises, permits, certificates, approvals or other authorizations required under Environmental Requirements and are in material compliance with all terms and conditions of all licenses, franchises, permits, certificates, approvals or other authorizations held by them.

(c) Neither the Company nor any Subsidiary thereof has received any written notice of material violation of Environmental Requirements, or notice of material liability arising under Environmental Requirements or relating to Hazardous Materials, including with respect to any investigatory, remedial or corrective obligation, relating to the Company, its Subsidiaries or their current or former properties, businesses or facilities, the subject of which is unresolved or for which any costs, liabilities or obligations remain outstanding.

(d) There are no material charges, complaints, suits, investigations or proceedings pending or, to the Company’s knowledge, threatened against the Company or any of its Subsidiaries, pursuant to Environmental Requirements or relating to Hazardous Materials.

(e) Neither the Company nor any of its Subsidiaries is subject to any material judgment, order, injunction, ruling or decree of any court or other Governmental Authority that is outstanding and was issued pursuant to Environmental Requirements.

(f) Except as would not reasonably be expected to be material to the Company or any of its Subsidiaries, no Hazardous Material has been discharged, disposed of, arranged for disposal, dumped, injected, pumped, deposited, spilled, leaked, emitted, released or threatened to be released either (i) by the Company or any of its Subsidiaries or (ii) at, into, through, under, on, to or from any property now or previously owned, leased or operated by the Company or any of its Subsidiaries.

(g) The Company has made available to Purchaser all environmental site assessments, audit reports, studies, tests, reviews or other analyses relating to the Company or any Subsidiary thereof, or any of their respective current or former properties, businesses or facilities, to the extent such documents are in the possession, custody or control of the Company or any Subsidiary thereof.

(h) Neither the Company nor any of its Subsidiaries owns, leases or operates any real property in New Jersey or Connecticut.

4.18 Affiliated Transactions. Except as set forth on the Affiliated Transactions Schedule, (a) no officer, director, equity holder or Affiliate of the Company or any of its Subsidiaries and (b) no Affiliate, “associate” or member of the “immediate family” (as such terms are defined in Rules 12b-2 and 16a-1 of the 1934 Act, respectively) of any Person referred to in the foregoing clause (a), in each case other than the Company and its Subsidiaries, is a party to any agreement, contract, commitment or transaction with the Company or any of its Subsidiaries or has any material interest in any material property used by the Company or any of its Subsidiaries.

4.19 Brokerage. Except as set forth on the Brokerage Schedule, there are no claims for brokerage commissions, finders’ fees or similar compensation in connection with the transactions contemplated by this Agreement based on any arrangement or agreement made by or on behalf of any Unitholder or the Company.

4.20 Inventories. The inventories set forth in the 2012 Balance Sheet were properly stated therein at the lesser of cost or fair market value determined in accordance with GAAP. Since the date of the 2012 Balance Sheet, the inventories of the Company and its Subsidiaries have been maintained in the ordinary course of business, except for any failure to maintain such inventories which would not, individually or in the aggregate, be material. All such inventories are owned free and clear of all Liens, except for Permitted Liens and as set forth on the Inventories Schedule. All of the inventories recorded on the 2012 Balance Sheet consist of, and all inventories of the Company and its Subsidiaries on the Closing Date will consist of, items of a quality usable or saleable in the normal course of business consistent with past practices and are and will be in quantities sufficient for the normal operation of the business of the Company and its Subsidiaries in accordance with past practice, except for where such a failure to be so usable and saleable would not, individually or in the aggregate, be material.

4.21 Receivables. All accounts, notes receivable and other receivables (other than receivables collected since the date of the 2012 Balance Sheet) reflected on the 2012 Balance Sheet are, and all accounts and notes receivable arising from or otherwise relating to the business of the Company and its Subsidiaries as of the Closing Date will be, valid and genuine, subject to normal and customary trade discounts, less any reserves for doubtful accounts recorded on the 2012 Balance Sheet. All accounts, notes receivable and other receivables arising out of or relating to such business of the Company and its Subsidiaries as of the date of the 2012 Balance Sheet have been included in the 2012 Balance Sheet.

4.22 Suppliers. Since January 1, 2012, the Company has not received any written notice from any material supplier threatening to cease supplying products to the Company.

 

4.23 Customers. Since January 1, 2012, the Company has not received written notice from any material customer threatening to cease dealing with the Company or any Subsidiary of the Company and no material customer has canceled, materially adversely modified, or otherwise terminated its relationship with the Company or its Subsidiaries, or otherwise materially decreased the volumes or dollar amounts or products ordered or purchased, nor to the knowledge of the Company, has any material customer communicated any intention to do any of the foregoing.

 

 

4.24 Foreign Corrupt Practices Act. Since January 1, 2008, neither the Company nor any of its Subsidiaries has violated in any material respect, or committed any act or made any payment in violation in any material respect of, or that requires disclosure under, the Foreign Corrupt Practices Act (15 U.S.C. §§ 78m(b), 78dd-1, 78dd-2, 78ff).

The Purchaser represents and warrants to the Unitholders and the Company that:

5.01 Organization and Power. The Purchaser is a corporation duly organized, validly existing and in good standing under the Laws of the State of Delaware, with full power and authority to enter into this Agreement and perform its obligations hereunder. The Merger Sub is a limited liability company duly organized, validly existing and in good standing under the Laws of the State of Delaware, with full limited liability company power and authority to enter into this Agreement and perform its obligations hereunder.

5.02 Authorization; No Breach; Valid and Binding Agreement. The execution, delivery and performance of this Agreement by the Purchaser and the Merger Sub and the consummation by the Purchaser and the Merger Sub of the transactions contemplated hereby have been duly and validly authorized by all requisite organizational action, and no other proceedings on the part of the Purchaser and the Merger Sub are necessary to authorize the execution, delivery or performance of this Agreement. The execution, delivery and performance of this Agreement by the Purchaser and the Merger Sub and the consummation by the Purchaser and the Merger Sub of the transactions contemplated hereby do not conflict with, constitute a default under, result in a breach or violation of, or result in the creation of any Lien (other than Permitted Liens) upon any assets of the Purchaser and the Merger Sub under, the provisions of the Purchaser’s and the Merger Sub’s certificates or articles of incorporation or bylaws (or equivalent organizational documents), any material contract to which the Purchaser or the Merger Sub is party, or any Law to which the Purchaser or the Merger Sub is subject, except as would not have a material adverse effect on the Purchaser or the Merger Sub or their ability to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by the Purchaser and the Merger Sub and, assuming that this Agreement is a valid and binding obligation of the other parties hereto, constitutes a valid and binding obligation of the Purchaser and the Merger Sub, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies.

5.03 Governmental Consents. Except for the applicable requirements of the HSR Act, no material permit, consent, approval or authorization of, or declaration to or filing with, any Governmental Authority is required to be obtained by the Purchaser or the Merger Sub in connection with the execution, delivery or performance of this Agreement by the Purchaser or the Merger Sub or the consummation of the transactions contemplated hereby.

 

5.04 Litigation. There are no charges, complaints, suits or proceedings pending or, to the Purchaser’s knowledge, threatened against the Purchaser or the Merger Sub, at law or in equity, before or by any Governmental Authority which would adversely affect the Purchaser’s or the Merger Sub’s performance under this Agreement or the consummation of the transactions contemplated hereby. Neither the Purchaser nor the Merger Sub is subject to any outstanding judgment, order or decree of any court or other Governmental Authority which would reasonably be expected to adversely affect the Purchaser’s or the Merger Sub’s performance under this Agreement or the consummation of the transactions contemplated hereby.

 

5.05 Brokerage. There are no claims for brokerage commissions, finders’ fees or similar compensation in connection with the transactions contemplated by this Agreement based on any arrangement or agreement made by or on behalf of the Purchaser or the Merger Sub.

 

5.06 Available Financing. The Purchaser shall have at the Closing sufficient cash, available lines of credit or other sources of immediately available funds to make payment of all amounts to be paid by it hereunder on and after the Closing Date, including all amounts required to be paid under Section 2.02 hereof.

5.07 Purpose. The Merger Sub is a newly formed limited liability company, formed solely for the purpose of engaging in the transactions contemplated by this Agreement. Prior to the date hereof, the Merger Sub has not engaged in any business activities or conducted any operations other than in connection with the transactions contemplated by this Agreement. The Merger Sub is a wholly owned Subsidiary of the Purchaser.

6.01   Conduct of the Business.

(a) From the date hereof until the Closing Date, the Company shall, and shall cause each of its Subsidiaries to, conduct its business in the ordinary course of business consistent with past practice and use its commercially reasonable efforts to (i) preserve intact its present business organization, (ii) keep available the services of its officers and key employees and (iii) maintain reasonably satisfactory relationships with its customers, lenders, suppliers and others having material business relationships with it; provided that, the foregoing notwithstanding, the Company and its Subsidiaries may use all available cash to repay any Indebtedness and to pay Transaction Expenses prior to the Closing.

(b) From the date hereof until the Closing Date, except as otherwise expressly permitted by this Agreement or the Conduct of the Business Schedule or consented to in writing by the Purchaser (which consent will not be unreasonably withheld or delayed), and except for the Paying Agent Agreement, the Company shall not, and shall not permit any Subsidiary of the Company to:

(i) enter into any contract which binds or purports to bind Affiliates of the Company or any of its Subsidiaries or the Purchaser or any of its Affiliates (other than the Surviving Entity and its Subsidiaries) following the Closing; or

(ii) take any action which, if such action had been taken during the time period covered by Section 4.06, would require disclosure pursuant to Section 4.06.

6.02 Access to Books and Records. From the date hereof until the Closing Date, the Company shall provide the Purchaser and its authorized representatives (the “Purchaser’s Representatives”) with access during normal business hours and upon reasonable notice to the offices, properties, officers, books and records of the Company and its Subsidiaries. Without limiting the generality of the foregoing, the Company shall use commercially reasonable efforts to furnish to the Purchaser as promptly as practicable financial and other information regarding the Company and its Subsidiaries as may be reasonably requested by the Purchaser to satisfy any disclosure requirements applicable to Purchaser under Regulation S-X of the Securities Act of 1933, as amended, and other applicable securities Laws. The Purchaser acknowledges that, prior to the Closing, it remains bound by the confidentiality agreement, dated March 29, 2012 by and between Parent and the Company (the “Confidentiality Agreement”). Additionally, the Confidentiality Agreement shall survive any termination of this Agreement for a period of 24 months following the date of such termination (and, notwithstanding anything contained in this Agreement or the Confidentiality Agreement to the contrary, the Confidentiality Agreement term shall be automatically amended to be extended for such additional 24 months).

6.03   Regulatory Filings.

(a) The Company shall make or cause to be made all filings and submissions required of the Company under the HSR Act or any other Laws applicable to the Company and its Subsidiaries for the consummation of the transactions contemplated herein (including, as promptly as practicable, and in any event within ten (10) business days after the date hereof, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby), and shall use reasonable best efforts to take or cause to be taken all actions and do or cause to be done all things that are necessary, proper or advisable to obtain all consents and approvals required by such filings and submissions.

(b) In furtherance of Section 6.03(a), the Company shall (i) respond as promptly as practicable to any inquiries or requests received from any Governmental Authority for additional information or documentation, and (ii) use reasonable best efforts to cause the waiting periods or other requirements under the HSR Act and all other applicable antitrust and competition laws to terminate or expire at the earliest possible date (including with respect to filings under the HSR Act, seeking “early termination” of the waiting period under the HSR Act). The Company shall (A) promptly notify the Purchaser of any written communication to the Company or its Affiliates from any Governmental Authority with respect to this Agreement and, subject to applicable Law, permit the Purchaser to review in advance any proposed written communication to such Governmental Authority (and consider in good faith the views of the Purchaser in connection therewith); (B) not agree to participate, or to permit its Affiliates to participate, in any substantive meeting or discussion with any Governmental Authority in respect of any filings, investigation or inquiry concerning this Agreement unless it consults with the

 

6.04 Conditions. The Company shall use commercially reasonable efforts to cause the conditions set forth in Section 3.01 to be satisfied and to consummate the transactions contemplated herein as soon as reasonably possible after the satisfaction of the conditions set forth in Article 3 hereof (other than those to be satisfied at the Closing).

6.05 Notification. From the date hereof until the Closing Date, the Company shall promptly disclose to the Purchaser in writing:

6.06   Tax Covenants.

(a) Without the prior written consent of the Purchaser, none of the Representative, the Company, any of the Company’s Subsidiaries and any Affiliate of the Representative shall, to the extent it would increase the aggregate Tax liability of the Company or its Subsidiaries for any Tax period, make or change any material Tax election, change any annual Tax accounting period, adopt or change any material method of Tax accounting, file any material amended Tax Return, enter into any closing agreement with respect to a material amount of Taxes, settle any material Tax claim or assessment, surrender any right to claim a material Tax refund, offset or other reduction in Tax liability, or consent to any extension or waiver of the limitations period applicable to any material Tax claim or assessment.

 

6.07 Information Statement; Unitholder Consent. Following the date of this Agreement, the Company shall prepare and distribute (or cause the Paying Agent to distribute) to all Unitholders (other than the Consenting Unitholders) an information statement describing this Agreement and the transactions contemplated hereby (the “Information Statement”). Each of Purchaser and Merger Sub will furnish to the Company such information relating to it as may be reasonably requested by the Company for inclusion into the Information Statement. Prior to distributing the Information Statement to such Unitholders, the Company shall provide Purchaser a reasonable opportunity to review and to propose comments on such document, and the Company shall consider such comments in good faith. In connection with the distribution of the Information Statement, the Company will request (and shall use commercially reasonable efforts to cause) each Unitholder (other than the Consenting Unitholders) to join and become a party to the Unitholder Consent.

6.08 Excluded Liabilities. The parties hereto covenant and agree that the Excluded Liabilities shall be the sole responsibility of the Unitholders in accordance with the terms of this Agreement (including Sections 8.02(c) and 8.02(d)), and the Purchaser and the Company shall not have any liability for the Excluded Liabilities.

6.09 West Plant Disposition Structure. Purchaser and the Company agree that the Company may structure the disposition, sale or transfer of the West Plant, whenever consummated, in any manner the Company reasonably chooses, including for the purpose of minimizing taxes to the Company and its Subsidiaries and to the Unitholders; provided that any such structure will be subject to the prior written consent of the Purchaser (such consent not to be unreasonably withheld). Purchaser and the Representative agree to cooperate, including after the Closing, with respect to the Tax reporting of such disposition, sale or transfer. Prior to any disposition, sale or transfer by the Company (or the Representative or an Affiliate of the Representative) of the West Plant to a third party (other than to the Representative or one of its Affiliates (other than a portfolio company of the Representative or one of its Affiliates)), the Representative will give the Purchaser a customary right of first offer with respect to the acquisition of the West Plant.

7.01 Access to Books and Records. From and after the Closing, the Purchaser shall, and shall cause the Company and its Subsidiaries to, provide the Representative and its authorized representatives with reasonable access (for the purpose of examining and copying), during normal business hours, to the books and records of the Company and its Subsidiaries with respect to periods or occurrences prior to or on the Closing Date in connection with any matter relating to or arising out of this Agreement or the transactions contemplated hereby. Unless

otherwise consented to in writing by the Representative, until the later of (i) the seventh (7th) anniversary of the Closing Date or (ii) the date on which Taxes may no longer be assessed under the applicable statutes of limitation, including any waivers or extensions thereof, the Purchaser shall not, and shall not permit the Company or its Subsidiaries to, destroy, alter or otherwise dispose of any of the books and records of the Company or its Subsidiaries for any period prior to the Closing Date without first giving reasonable prior notice to the Representative and offering to surrender to the Representative (on behalf of the Unitholders) such books and records or any portion thereof which the Purchaser or the Company may intend to destroy, alter or dispose of.

7.03   Director and Officer Liability and Indemnification.

(a) For a period of six (6) years after the Closing, the Purchaser shall not, and shall not permit the Company or any of its Subsidiaries to, amend, repeal or otherwise modify any provision in the Company’s or any of its Subsidiaries’ operating agreement, certificate of incorporation, bylaws (or equivalent governing document) relating to the exculpation or indemnification of any current or former managers, directors and/or officers (each, a “ D&O Indemnitee”) (unless required by Law) from the form of such provisions as of immediately prior to the Effective Time, it being the intent of the parties that the D&O Indemnitees shall continue to be entitled to such exculpation and indemnification to the full extent permitted by Law.

(b) At the Closing, the Purchaser shall, or shall cause the Company to, obtain, maintain and fully pay for irrevocable “tail” insurance policies naming the D&O Indemnitees as direct beneficiaries with a claims period of at least six (6) years from the Closing Date from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters existing or occurring at or prior to the Closing. The cost of such tail insurance policy shall be borne 50% by the Purchaser, on the one hand, and 50% by the Unitholders (as a Transaction Expense), on the other hand. The Purchaser

 

shall not, and shall cause the Company not to, cancel or change such insurance policies in any respect.

(c) In the event Purchaser, the Company or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity in such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, then and in either such case proper provision shall be made so that the successors and assigns of Purchaser or the Company, as the case may be, shall assume the obligations set forth in this Section 7.03.

(d) The D&O Indemnitees are express and intended third-party beneficiaries of the provisions of this Section 7.03 and shall be entitled to enforce the terms of this Section 7.03 as if they were each a party to this Agreement.

7.04   Employment and Benefit Arrangements.

(a) From and after the Effective Time, the Purchaser shall cause the Surviving Entity to honor all employment, severance, termination, consulting, retirement and other compensation and benefit plans, programs, policies, contracts, arrangements and agreements to which the Company and/or any of its Subsidiaries is a party, as such plans, programs, policies, contracts, arrangements and agreements are in effect on the date hereof (it being understood that this Section 7.04 shall not be deemed to prohibit the Purchaser or the Surviving Entity from amending, modifying, replacing or terminating such arrangements in accordance with their terms). For at least one year following the Effective Time, the Purchaser shall or shall cause the Surviving Entity to provide to employees of the Company or any of its Subsidiaries compensation and benefits that are substantially equivalent in the aggregate to the compensation and benefits provided to such employees immediately prior to the Effective Time. The Purchaser shall take all actions required so that employees of the Company and any of its Subsidiaries shall receive service credit for purposes of vesting, eligibility and determination of the amount of sick leave, vacations and severance benefits under any successor benefit or compensation plans, programs, policies, contracts, agreements and arrangements sponsored by the Purchaser or any of its Affiliates (including the Company or any of its Subsidiaries) (other than any equity-based plan or arrangement); provided, however, that such credit shall not result in a duplication of benefits and, for the avoidance of doubt, the Purchaser shall not be required to provide credit for such service for eligibility or benefit accrual purposes under any employee benefit plan of the Purchaser or the Surviving Entity that is a long-term incentive program, defined benefit pension plan or post-retirement medical plan. To the extent that the Purchaser or any of its Affiliates (including the Company or any of its Subsidiaries) modifies any coverage or benefit plan under which the employees of the Surviving Entity or any of its Subsidiaries participate prior to the end of the plan year that includes the Effective Time, the Purchaser shall use reasonable best efforts to waive or cause to be waived any applicable waiting periods, pre-existing condition exclusions or actively-at-work requirements and shall give such employees credit under the new coverages or benefit plans for deductibles, co-payments and out-of-pocket payments that have been paid during the plan year in which the Effective Date occurs. The Purchaser shall be solely responsible for any obligations arising under Section 4980B of the Code with respect to all “M&A Qualified Beneficiaries” as defined in Treasury Regulation § 54.4980B-9.

 

 

Company:	BF BOLTHOUSE HOLDCO LLC
	By:	/s/ Jeffrey Dunn
	Name:	Jeffrey Dunn
	Its:	CEO