Exhibit 10.1


 


Execution
Copy


 


 


ASSET PURCHASE AGREEMENT,


 


dated as of December 22,
2005,


 


between


 


MOTT’S LLP


 


and 


 


BLOCH & GUGGENHEIMER,
INC.


 


relating to the 


 


purchase and sale of
certain assets 


 


of the


 


GRANDMA’S MOLASSES
BUSINESS


 





















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  I

  	
  DEFINITIONS

  	
  1

  
	
  1.1

  	
  Definitions

  	
  1

  
	
  1.2

  	
  Other Defined Terms

  	
  5

  
	
  1.3

  	
  Construction

  	
  6

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  II

  	
  PURCHASE AND SALE

  	
  7

  
	
  2.1

  	
  Purchase and Sale of the Purchased Assets

  	
  7

  
	
  2.2

  	
  Excluded Assets

  	
  7

  
	
  2.3

  	
  Assumed Liabilities

  	
  9

  
	
  2.4

  	
  Excluded Liabilities

  	
  9

  
	
  2.5

  	
  Purchase Price

  	
  10

  
	
  2.6

  	
  Closing Date

  	
  10

  
	
  2.7

  	
  Closing Deliveries

  	
  10

  
	
  2.8

  	
  Allocation

  	
  12

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  REPRESENTATIONS
  AND WARRANTIES OF THE SELLER

  	
  12

  
	
  3.1

  	
  Organization and Good Standing

  	
  12

  
	
  3.2

  	
  Authority and Enforceability

  	
  12

  
	
  3.3

  	
  No Conflicts; Consents

  	
  13

  
	
  3.4

  	
  Financial Data

  	
  13

  
	
  3.5

  	
  Taxes

  	
  14

  
	
  3.6

  	
  Compliance with Law

  	
  14

  
	
  3.7

  	
  Title to Purchased Assets

  	
  14

  
	
  3.8

  	
  Intellectual Property

  	
  15

  
	
  3.9

  	
  Absence of Certain Changes or Events

  	
  16

  
	
  3.10

  	
  Assigned Contracts

  	
  16

  
	
  3.11

  	
  Litigation; Orders

  	
  17

  
	
  3.12

  	
  Product Liability; Product Recall

  	
  17

  
	
  3.13

  	
  Customers and Suppliers

  	
  17

  
	
  3.14

  	
  Brokers

  	
  18

  



 


i





















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  REPRESENTATIONS AND WARRANTIES OF THE BUYER

  	
  18

  
	
  4.1

  	
  Organization and Good Standing

  	
  18

  
	
  4.2

  	
  Authority and Enforceability

  	
  18

  
	
  4.3

  	
  No Conflicts; Consents

  	
  18

  
	
  4.4

  	
  Litigation

  	
  19

  
	
  4.5

  	
  Availability of Funds

  	
  19

  
	
  4.6

  	
  Brokers

  	
  19

  
	
  4.7

  	
  No Other Representations

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  COVENANTS OF THE BUYER AND THE SELLER

  	
  20

  
	
  5.1

  	
  Conduct of Business

  	
  20

  
	
  5.2

  	
  Access to Information; Notification

  	
  21

  
	
  5.3

  	
  Confidentiality

  	
  22

  
	
  5.4

  	
  Support Services

  	
  22

  
	
  5.5

  	
  Financing

  	
  22

  
	
  5.6

  	
  Consents

  	
  22

  
	
  5.7

  	
  Public Announcements

  	
  23

  
	
  5.8

  	
  Transfer Taxes

  	
  23

  
	
  5.9

  	
  Bulk Sales Laws

  	
  23

  
	
  5.10

  	
  Access to Books and Records

  	
  23

  
	
  5.11

  	
  Solicitation of Seller’s or Buyer’s Employees

  	
  24

  
	
  5.12

  	
  Prohibited Activities

  	
  25

  
	
  5.13

  	
  Consumer Claims and Complaints

  	
  25

  
	
  5.14

  	
  Promotion/Pricing Allowance

  	
  25

  
	
  5.15

  	
  Administration of Accounts and Related Matters;
  Customer Inquiries

  	
  26

  
	
  5.16

  	
  Termination of Broker Agreements

  	
  27

  
	
  5.17

  	
  Packaging Materials and Supplies

  	
  27

  
	
  5.18

  	
  Further Assurances

  	
  27

  



 


ii





















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  5.19

  	
  Exclusivity

  	
  27

  
	
  5.20

  	
  Non-Competition; Confidentiality

  	
  28

  
	
  5.21

  	
  Notices Prior to Closing

  	
  29

  
	
  5.22

  	
  Financial Information Cooperation

  	
  29

  
	
  5.23

  	
  Assigned Equipment

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VI

  	
  CONDITIONS TO CLOSING

  	
  30

  
	
  6.1

  	
  Conditions to Obligations of the Buyer and the
  Seller

  	
  30

  
	
  6.2

  	
  Conditions to Obligation of the Buyer

  	
  31

  
	
  6.3

  	
  Conditions to Obligation of the Seller

  	
  31

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VII

  	
  TERMINATION

  	
  32

  
	
  7.1

  	
  Termination

  	
  32

  
	
  7.2

  	
  Effect of Termination

  	
  33

  
	
  7.3

  	
  Remedies

  	
  33

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII

  	
  INDEMNIFICATION

  	
  34

  
	
  8.1

  	
  Survival

  	
  34

  
	
  8.2

  	
  Indemnification by the Seller

  	
  34

  
	
  8.3

  	
  Indemnification by the Buyer

  	
  35

  
	
  8.4

  	
  Indemnification Procedure for Third Party Claims

  	
  36

  
	
  8.5

  	
  Indemnification Procedures for Non-Third Party
  Claims

  	
  37

  
	
  8.6

  	
  Calculation of Indemnity
  Payments

  	
  38

  
	
  8.7

  	
  Characterization of Indemnification Payments

  	
  38

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  IX

  	
  MISCELLANEOUS

  	
  39

  
	
  9.1

  	
  Notices

  	
  39

  
	
  9.2

  	
  Amendments and Waivers

  	
  40

  
	
  9.3

  	
  Expenses

  	
  40

  
	
  9.4

  	
  Successors and Assigns

  	
  40

  
	
  9.5

  	
  Governing Law

  	
  41

  
	
  9.6

  	
  Consent to Jurisdiction

  	
  41

  
	
  9.7

  	
  Counterparts

  	
  41

  



 


iii





















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  9.8

  	
  No Third Party Beneficiaries

  	
  41

  
	
  9.9

  	
  Entire Agreement

  	
  41

  
	
  9.10

  	
  Captions

  	
  42

  
	
  9.11

  	
  Severability

  	
  42

  
	
  9.12

  	
  Interpretation

  	
  42

  



 


iv





















 


ASSET PURCHASE AGREEMENT


 


ASSET PURCHASE AGREEMENT, dated as of
December 22, 2005 (the “Agreement”),
between Mott’s LLP, a Delaware limited liability partnership (the “Seller”), and Bloch & Guggenheimer, Inc., a Delaware
corporation (the “Buyer”).


 


WHEREAS, the Seller is engaged, in part, in the
business (the “Business”) of developing,
manufacturing, marketing, distributing and selling molasses products, including
molasses products under the “GRANDMA’S” brand name (the “Brand”);
and 


 


WHEREAS, the parties desire that the Seller sell,
assign, transfer, convey and deliver to the Buyer, and that the Buyer purchase,
acquire and accept from the Seller, all of the right, title and interest of the
Seller in and to the Purchased Assets (as hereinafter defined), and that the
Buyer assume the Assumed Liabilities (as hereinafter defined), in each case
upon the terms and subject to the conditions of this Agreement.


 


NOW, THEREFORE, in consideration of the foregoing
premises and the respective representations, warranties, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:


 


ARTICLE I



DEFINITIONS


 


1.1           Definitions.  When used in this Agreement, the following
terms shall have the meanings assigned to them in this Section 1.1.


 


“Action” shall mean any civil, criminal, judicial or other action,
claim, suit, citation, subpoena, litigation, proceeding, arbitral action,
governmental audit, criminal prosecution, inquiry, investigation, charge or
complaint.


 


“Affiliate” means, with respect to any specified Person, any
other Person directly or indirectly controlling, controlled by or under common
control with such specified Person.


 


“Ancillary Agreements” means the Bill of Sale, the Assumption
Agreement, the Intellectual Property Assignments, the Transition Services
Agreement, the Manufacturing Agreement and the other agreements, instruments
and documents delivered at the Closing.


 


“Business Customer Information” means any Customer
Information that relates to the Business.


 





















 


“Business Day” means a day other than a Saturday, Sunday or
other day on which banks located in New York City, New York are authorized or
required by Law to close.


 


“Business Information” means all business information, books,
files and records (or portions thereof) which are currently used principally in
connection with the Business or are necessary to conduct the Business as
presently conducted, including any advertising, marketing and sales plans and
programs, financial data, customer lists and supplier lists.


 


“Business Intellectual Property” means all of the Seller’s
rights, title and interest in, to and under Intellectual Property that is used principally in connection with conduct of
the Business as currently conducted, including the Intellectual Property set
forth on Section 3.8(a) of the Seller Disclosure Schedule.


 


“Code” means the Internal Revenue Code of 1986 and the rules and regulations
promulgated thereunder.


 


“Confidentiality Agreement” means the
Confidentiality Agreement executed by Buyer on September 29, 2005. 


 


“Contract” means any agreement,
contract, commitment or arrangement, whether oral or written, to which the
Seller or an Affiliate of the Seller is a party or is bound and which relates
principally to the Business.


 


“Copyrights” means copyrights (whether
registered or unregistered) and any registrations and applications therefor.


 


“Credit Agreement Amendment” means that
certain Third Amendment, dated as of the date hereof, to Revolving Credit
Agreement, among B&G Foods, Inc., as Borrower, Lehman Commercial Paper,
Inc., as Administrative Agent, and the Lenders parties thereto.


 


“Customer Information” means all
customer lists, customer contact information, customer correspondence and
customer licensing and purchasing histories, customer preferences and all other
confidential or proprietary information or data relating to current and former
customers.


 


“Domain Name” means an alphanumeric
string, such as www.ABC.com, that is an address
of a computer network connection and any registrations therefor.


 


“Governmental Entity” means any entity or body exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to United States federal, state or local government or foreign,
international, multinational or other government, including any department,
commission, board, agency, bureau, official or other regulatory, administrative
or judicial authority thereof.


 


2





















 


“Indemnitee” means any Person that is seeking indemnification
from an Indemnitor pursuant to the provisions of this Agreement.


 


“Indemnitor” means any party to this Agreement from which any
Indemnitee is seeking indemnification pursuant to the provisions of this
Agreement.


 


“Intellectual Property” means (a) (i)
Technology, (ii) Patents, (iii) Trademarks, (iv) Copyrights, (v) Domain Names;
and (vi) licenses for the Intellectual Property listed in items (i) — (v)
above, if any, (b) pending applications to register or otherwise obtain legal
protection for any of the foregoing, (c) rights to make application in the
future to register or otherwise obtain legal protection for any of the
foregoing, (d) rights of priority under national laws and international
conventions with respect to any of the foregoing and (e) rights to sue with
respect to past and future infringements of any of the foregoing.


 


“Inventory” means all of the Business’ raw materials,
finished goods, packaging materials, supplies and other inventories.


 


“Knowledge of the Seller” or any similar phrase means the
current actual knowledge of the persons identified by name, title and
functional responsibility on Section 1.1(a) of the Seller Disclosure
Schedule.


 


“Law” means any statute, law, ordinance, rule or regulation
of any Governmental Entity.


 


“Liabilities” means liabilities, obligations, indebtedness,
claims, deficiencies, guarantees, endorsements or commitments of any nature
whatsoever, asserted or unasserted, known or unknown, absolute or contingent,
accrued or unaccrued, matured or unmatured or otherwise.


 


“Lien” means, with respect to any property or asset, any mortgage,
lien, pledge, charge, claim, option, security interest, hypothecation or any
other encumbrance or right of third parties in respect of such property or
asset, whether voluntarily incurred or arising by operation of Law, including
any agreement to give any of the foregoing in the future.


 


“Material Adverse Effect” means any adverse change or effect
that, individually or when taken together with all other such adverse changes
or effects that have occurred during the period in question, is materially adverse
to (i) the Business, the Purchased Assets or the results, operation or
condition of the Business (financial or otherwise), taken as a whole or (ii)
the ability of the Seller to consummate the transactions contemplated hereby,
other than, in the case of clause (i) any such change or effect relating to (a)
the United States economy in general, (b) the molasses industry in general  (provided that such change or effect does not
affect the Business or the Brand disproportionately relative to other businesses
or brands in the molasses industry), (c) any new outbreak of hostilities
involving the United States, any declaration of war by the United States
Congress or any acts of terrorism involving the United States or (d) the


 


3





















 


announcement of the
transactions contemplated by this Agreement, including with respect to the
identity of the Buyer.


 


“Order” means any award, injunction, judgment, decree, order,
ruling, subpoena or verdict or other decision issued, promulgated or entered by
or with any Governmental Entity of competent jurisdiction.


 


“Organizational Documents” means, with respect to any entity,
the certificate of incorporation, the articles of incorporation, by-laws,
articles of organization, partnership agreement, limited liability company
agreement, formation agreement, joint venture agreement or other similar
organizational documents of such entity (in each case, as amended through the
date of this Agreement).


 


“Patents” means patents (including all provisionals,
reissues, divisions, continuations, continuations-in-part and extensions
thereof) and patent applications.


 


“Permit” means any authorization, approval, consent,
certificate, license, permit or franchise of or from any Governmental Entity or
pursuant to any Law.


 


“Permitted Liens” means (a) statutory Liens for current Taxes
that are not yet due and payable or that the validity of which are being
contested in good faith by appropriate proceedings, (b) statutory Liens of
workers’, carriers’, materialmens’, suppliers’ and mechanics’ or other like
Liens incurred in the ordinary course of business and not yet due and payable
or the validity of which are being contested in good faith by appropriate
proceedings, (c) other Liens which in the aggregate do not materially interfere
with the present use, or affect the value, of the properties they affect, (d)
Liens that will be released prior to or as of the Closing as set forth on Section
1.1(b) of the Disclosure Schedule, (e) Liens that will not be released
prior to or as of the Closing as set forth on Section 1.1(c) of the
Disclosure Schedule, (f) Liens arising under this Agreement or the
Ancillary Agreements and (g) Liens created by or through the Buyer.


 


“Person” means an individual, a corporation, a partnership, a
limited liability company, a trust, an unincorporated association, a
Governmental Entity or any agency, instrumentality or political subdivision of
a Governmental Entity, or any other entity or body.


 


“Tax” or “Taxes”
means all federal, state, provincial, local and foreign income, profits,
franchise, gross receipts, environmental, customs duty, capital stock,
severance, stamp, payroll, sales, employment, unemployment, disability, use,
personal and real property, withholding, excise, production, transfer,
alternative minimum, value added, occupancy and other taxes (including any
interest, penalty or addition thereto).


 


“Tax Returns” means any return, declaration, report, claim
for refund, or information return or statement relating to Taxes, including any
schedule or attachment thereto, and including any amendment thereof.


 


4





















 


“Technology” means trade secrets,
inventions, confidential and proprietary information, know-how, formulae and
processes.


 


“Trademarks” means trademarks, service
marks, trade names, trade dress, brand names, logos (whether registered,
unregistered or existing at common law, including all goodwill attaching
thereto) and any registrations and applications therefor.


 


“Transfer Taxes” means sales, use, transfer, real property
transfer, recording, documentary, stamp, registration and stock transfer Taxes
and any similar Taxes.


 


“U.S.  Business Intellectual
Property” means all of Business Intellectual Property that is used in connection with conduct of the
Business in the United States as currently conducted.


 


“$” means United States dollars.


 


1.2           Other Defined Terms.  The following terms have the meanings
assigned to such terms in the Sections of the Agreement set forth below:


 


	
  Accounting Principles

  	
   

  	
  3.4(a)

  
	
  Agreement

  	
   

  	
  Preamble

  
	
  Allocation Statement

  	
   

  	
  2.8

  
	
  Applicable Survival
  Period

  	
   

  	
  8.1(c)

  
	
  Assigned Contracts

  	
   

  	
  2.1(a)

  
	
  Assigned Equipment

  	
   

  	
  2.1(d)

  
	
  Assumed Liabilities

  	
   

  	
  2.3

  
	
  Assumption Agreement

  	
   

  	
  2.7(a)(ii)

  
	
  Bill of Sale

  	
   

  	
  2.7(a)(i)

  
	
  Brand

  	
   

  	
  Preamble

  
	
  Business

  	
   

  	
  Preamble

  
	
  Buyer

  	
   

  	
  Preamble

  
	
  Buyer Closing
  Certificate

  	
   

  	
  6.3(c)

  
	
  Buyer Covered Losses

  	
   

  	
  8.3(b)

  
	
  Buyer Deductible

  	
   

  	
  8.3(b)

  
	
  Buyer Indemnitees

  	
   

  	
  8.2(a)

  
	
  Buyer’s Deductions

  	
   

  	
  5.14(b)

  
	
  Cash Consideration

  	
   

  	
  2.5

  
	
  Closing

  	
   

  	
  2.6

  
	
  Closing Date

  	
   

  	
  2.6

  
	
  Covered Losses

  	
   

  	
  8.2(b)

  



 


5





















 


	
  Deductible

  	
   

  	
  8.2(b)

  
	
  Equipment

  	
   

  	
  2.2(d)

  
	
  Excluded Assets

  	
   

  	
  2.2

  
	
  Excluded Liabilities

  	
   

  	
  2.4

  
	
  Financial Data

  	
   

  	
  3.4(a)

  
	
  Financing

  	
   

  	
  4.5

  
	
  GAAP

  	
   

  	
  3.4(a)

  
	
  Intellectual Property
  Assignments

  	
   

  	
  2.7(a)(iii)

  
	
  Losses

  	
   

  	
  8.2(a)

  
	
  Manufacturing Agreement

  	
   

  	
  2.7(a)(v)

  
	
  Notice of Claim

  	
   

  	
  8.4(a)

  
	
  Purchase Price

  	
   

  	
  2.5

  
	
  Purchased Assets

  	
   

  	
  2.1

  
	
  Registered
  Business Intellectual Property

  	
   

  	
  3.8(a)

  
	
  Returned Products

  	
   

  	
  2.3(e)

  
	
  Section 1060 Forms

  	
   

  	
  2.8

  
	
  Seller

  	
   

  	
  Preamble

  
	
  Seller Closing
  Certificate

  	
   

  	
  6.2(c)

  
	
  Seller Disclosure
  Schedule

  	
   

  	
  Preamble
  to Article III

  
	
  Seller Disclosure
  Schedule Supplement

  	
   

  	
  5.2(b)

  
	
  Seller Indemnitees

  	
   

  	
  8.3(a)

  
	
  Seller’s Deductions

  	
   

  	
  5.14(a)

  
	
  Third Party Claim

  	
   

  	
  8.4(a)

  
	
  Third Party Defenses

  	
   

  	
  8.4(b)

  
	
  Transition Services
  Agreement

  	
   

  	
  2.7(a)(iv)

  
	
  U.S.
  Registered Business Intellectual Property

  	
   

  	
  3.8(b)

  



 


1.3           Construction.  For the purposes of this Agreement, except as
otherwise expressly provided herein or unless the context otherwise
requires:  (a) the meaning assigned to
each term defined herein shall be equally applicable to both the singular and
the plural forms of such term and vice versa, and words denoting either gender
shall include both genders as the context requires; (b) where a word or phrase
is defined herein, each of its other grammatical forms shall have a
corresponding meaning; (c) the terms “hereof”, “herein”, “hereunder”, “hereby”
and “herewith” and words of similar import shall, unless otherwise stated, be
construed to refer to this Agreement as a whole and not to any particular
provision of this Agreement; (d) when a reference is made in this Agreement to
an Article, Section, paragraph, Exhibit or Schedule, such reference is


 


6





















 


to an Article,
Section, paragraph, Exhibit or Schedule to this Agreement unless otherwise
specified; (e) the word “include”, “includes”, and “including” when used in
this Agreement shall be deemed to incorporate the words “without limitation”,
unless otherwise specified; (f) a reference to any party to this Agreement or
any other agreement or document shall include such party’s predecessors,
successors and permitted assigns; and (g) all accounting terms used and not
defined herein have the respective meanings given to them under GAAP. 


 


ARTICLE II



PURCHASE AND SALE


 


2.1           Purchase and Sale of
the Purchased Assets.  Upon the terms
and subject to the conditions of this Agreement, at the Closing, the Seller
shall sell, assign, transfer, convey and deliver, to the Buyer, and the Buyer
shall purchase, acquire and accept from the Seller, all of the Seller’s right,
title and interest in, to and under the Purchased Assets, free and clean of all
Liens, other than Permitted Liens.  For
purposes of this Agreement, the “Purchased Assets”
shall mean all of the Seller’s right, title and interest in, to and under the
following: 


 


(a)           all Business
Intellectual Property and Business Customer Information;


 


(b)           the Contracts set forth
on Section 2.1(b) of the Seller Disclosure Schedule (the “Assigned Contracts”);


 


(c)           all Business
Information; provided that, subject to Section 5.3, the Seller shall be
entitled to retain copies of any Business Information;


 


(d)           the Equipment set forth
on Section 2.1(d) of the Seller Disclosure Schedule (the “Assigned Equipment”); 


 


(e)           all Returned Products; 


 


(f)            all goodwill of the
Business as a going concern; and


 


(g)           any refunds or credits
(including interest thereon or claims therefore) with respect to any Taxes to
the extent that the Taxes being refunded are an Assumed Liability.


 


2.2           Excluded Assets.  Notwithstanding anything to the contrary
herein, the Seller shall not sell, assign, transfer, convey or deliver to the
Buyer, and the Buyer shall not purchase, acquire or accept delivery or have any
rights to purchase, acquire or accept, delivery of any assets of the Seller
(the “Excluded Assets”) other than those
specifically


 


7





















 


set forth in
Section 2.1.  Without limiting the
generality of the foregoing sentence the following shall constitute Excluded
Assets:


 


(a)           all of the Business’
cash and cash equivalents, including bank deposits, investments in so-called
“money market” funds, commercial paper funds, certificates of deposit, Treasury
bills and accrued interest thereon, in each case, to the extent on hand on the
Closing Date;


 


(b)           all accounts
receivables and other receivables or rights to payment of the Business arising
prior to the Closing Date;


 


(c)           except as contemplated
by the Manufacturing Agreement, all Inventory;


 


(d)           all real property
owned, leased or otherwise used by the Seller;


 


(e)           except for Assigned
Equipment or as otherwise provided in the Manufacturing Agreement, all
machinery, vehicles, computers, furniture, fixtures and equipment and related
supplies, accessories, materials and parts (collectively, “Equipment”)
owned, leased or used by the Seller, including all machinery, vehicles,
computers, furniture, fixtures and equipment and related supplies used by the
Seller in the operation of the Business or the manufacture of the Business’
products;


 


(f)            all Contracts to which
the Seller is a party other than the Assigned Contracts;


 


(g)           all Permits owned or
used by the Seller;


 


(h)           except as provided in
Section 2.1(g), any refunds or credits (including interest thereon or claims
therefore) with respect to any Taxes relating to the Business or the Purchased
Assets for any period or portion thereof ending on or before the Closing Date;


 


(i)            any Contracts of
insurance in respect of the Business and all rights thereunder; and


 


(j)            any Universal Product
Code number used by the Seller; provided, however, that the
Seller consents to the Buyer (i) manufacturing finished goods inventory
containing the Universal Product Code number used by the Seller in connection
with the Business’ products until the eighteen (18) month anniversary of the
Closing Date, (ii) selling any finished goods inventory existing as of the
Closing Date or manufactured prior to the eighteen (18) month anniversary of
the Closing Date pursuant to clause (i), (iii) using any packaging existing as
of the Closing Date or manufactured prior to the eighteen (18) month
anniversary of the Closing Date pursuant to clause (i), and (iv) reselling any
inventory that is returned prior to the eighteen (18) month anniversary of the 


 


8





















 


Closing Date which
contains the Universal Product Code number used by the Buyer in connection with
the Business’ products.


 


2.3           Assumed Liabilities.  Upon the terms and subject to the conditions
set forth herein, at the Closing the Buyer shall assume from the Seller (and
thereafter pay, perform, discharge or otherwise satisfy in accordance with
their respective terms, subject to any defenses or claimed offsets asserted by
the Buyer in good faith against the Person to whom such Liabilities are owed),
and the Seller shall irrevocably transfer and assign to the Buyer, only the
following Liabilities of the Seller (collectively, the “Assumed
Liabilities”):


 


(a)           all Liabilities which
arise on account of the operation of the Business, the use of the Purchased
Assets and/or sale of any products manufactured and/or sold by the Buyer or the
Business (including products using the Brand) on or after the Closing Date,
except to the extent any Liability relates to or arises out of any fact, event
or circumstance that constitutes a breach of Seller’s representations,
warranties, covenants or agreements under this Agreement or the Manufacturing
Agreement (without regard to any survival limitations hereunder); 


 


(b)           all Taxes related to
the Business attributable to taxable periods or portions thereof beginning on
or after the Closing Date;


 


(c)           all Liabilities under
the Assigned Contracts to the extent related to performance following the
Closing Date, other than any Liability arising as a result of a breach thereof
by Seller or its Affiliates prior to the Closing Date;


 


(d)           all Liabilities (i) for
returns in the ordinary course of business consistent with past practice of the
Business’ products received after the Closing Date for products sold prior to
the Closing Date and (ii) for returns of the Business’ products received after
the Closing Date for products sold on or after the Closing Date (all such
returned products, the “Returned Products”);
and 


 


(e)           the Liabilities set
forth in Section 5.16.


 


2.4           Excluded Liabilities.  Except as expressly provided in Section 2.3
or elsewhere in this Agreement, the Buyer shall not assume any Liabilities
relating to the Business, the Purchased Assets or the Seller.  All such Liabilities including the following
liabilities are, and shall remain, the Liabilities of the Seller (collectively,
the “Excluded Liabilities”):


 


(a)           all Liabilities arising
out of or relating to the Excluded Assets;


 


(b)           all Liabilities of the
Seller that do not arise out of or are not related to the Business;


 


(c)           all trade payables of
the Seller; 


 


9





















 


(d)           all Liabilities for
coupons dropped on or before the Closing Date (regardless of when such coupon
is or was redeemed);


 


(e)           all Liabilities related
to (i) Taxes of the Seller and (ii) any other Taxes related to the Business
attributable to taxable periods or portions thereof ending on or prior to the
Closing Date; 


 


(f)            all Liabilities for
commissions and sales incentives payable to brokers or other representatives
for periods through (but not including) the Closing Date; 


 


(g)           all Liabilities arising
out of or incurred in connection with the negotiation, preparation and
execution of this Agreement and the Ancillary Agreements and the consummation
of the transactions contemplated hereby and thereby, including fees and
expenses of counsel, accountants and other experts;


 


(h)           all Liabilities for
product liability claims for products sold by the Seller prior to the Closing
Date;


 


(i)            all Liabilities for
infringement by the Seller of any Intellectual Property rights of any Person;


 


(j)            all Liabilities of the
Seller for environmental matters; and


 


(k)           all Liabilities
expressly retained or agreed to be discharged by Seller pursuant to this
Agreement.


 


2.5           Purchase Price.  The aggregate consideration to be paid by the
Buyer to the Seller for the Purchased Assets (the “Purchase
Price”) shall be (i) Thirty Million Dollars ($30,000,000) (the “Cash Consideration”) plus (ii) the assumption of the
Assumed Liabilities.


 


2.6           Closing Date.
The consummation of the transactions contemplated by this Agreement (the “Closing”) shall take place at the offices of Morgan, Lewis
& Bockius LLP, 101 Park Avenue, New York, New York at 10:00 a.m. on January
4, 2006, or on such other date or at such other time and place as may be
mutually agreed upon by the parties.  The
date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.   For
purposes of this Agreement, the Closing will be treated as if it occurred at
12:01 a.m. on the Closing Date.


 


2.7           Closing Deliveries. 


 


(a)           Deliveries by the
Seller at the Closing.  At the
Closing, the Seller shall deliver to the Buyer the following:


 


(i)            a bill of sale,
substantially in the form of Exhibit A hereto (the “Bill of Sale”),
duly executed the Seller;


 


10





















 


(ii)           an assumption
agreement, substantially in the form of Exhibit B hereto (the “Assumption Agreement”), duly executed by the Seller;


 


(iii)          intellectual property
assignments in a form to be agreed by the Seller and the Buyer (the “Intellectual Property Assignments”), duly executed by the
Seller; 


 


(iv)          a transition services
agreement, substantially in the form of Exhibit D hereto (the “Transition Services Agreement”), duly executed by the
Seller;


 


(v)           a contract
manufacturing agreement, substantially in the form of Exhibit E hereto
(the “Manufacturing Agreement”), duly
executed by the Seller; 


 


(vi)          the Seller Closing
Certificate; and


 


(vii)         the consents,
certificates and other documents required by Section 6.2, each in a form
reasonably satisfactory to the Buyer and such other good and sufficient
instruments of transfer as the Buyer reasonably deems necessary and appropriate
to vest in the Buyer all right, title and interest in, to and under the
Purchased Assets, free and clear of all Liens, other than Permitted Liens.


 


(b)           Deliveries by the
Buyer at the Closing. At the Closing, the Buyer shall deliver to the Seller
the following:


 


(i)            an amount in cash
equal to the Cash Consideration, by wire transfer of immediately available
funds to the account designated in writing by the Seller to the Buyer at least
two (2) Business Days prior to the Closing Date;


 


(ii)           the Bill of Sale, duly
executed by the Buyer;


 


(iii)          the Assumption
Agreement, duly executed by the Buyer;


 


(iv)          the Intellectual
Property Assignments, duly executed by the Buyer;


 


(v)           the Transition Services
Agreement, duly executed by the Buyer;


 


(vi)          the Manufacturing Agreement,
duly executed by the Buyer; 


 


(vii)         the Buyer Closing
Certificate; and


 


(viii)        the consents, certificates
and other documents required by Section 6.3, each in a form reasonably
satisfactory to the Seller.


 


11





















 


2.8           Allocation.  The Buyer and the Seller shall agree,
promptly following the Closing Date, as to the allocation of the Purchase Price
for Tax purposes among the Purchased Assets and the covenant not to compete
(described in Section 5.20), such allocation to be made pursuant to Section
1060 of the Code and any other applicable Tax Laws (as the same may be revised
pursuant to the following sentence, the “Allocation Statement”).  Except as otherwise required by Law, the
Buyer and the Seller shall file all Tax Returns (such as IRS Form 8594 or any
other forms or reports required to be filed pursuant to Section 1060 of the
Code or any comparable provisions of Law (the “Section 1060 Forms”)) in a
manner that is consistent with the Allocation Statement and refrain from taking
any action inconsistent therewith and shall notify the other party if any
taxing authority challenges the allocation set forth in the Allocation
Statement.  The Buyer and the Seller
shall cooperate in the preparation of the Section 1060 Forms and file such the
Section 1060 Forms timely and in the manner required by applicable Law.  The Buyer and the Seller agree to treat any
payments made pursuant to the indemnification provisions of this Agreement as
an adjustment to the Purchase Price for Tax purposes.


 


ARTICLE III



REPRESENTATIONS AND WARRANTIES OF THE SELLER


 


                The
Seller represents and warrants to the Buyer that each statement contained in
this Article III, subject and giving effect to the disclosure schedule
accompanying this Agreement, which is attached to this Agreement and is
designated therein as being the “seller disclosure schedule” (the “Seller Disclosure Schedule”), is true and correct as of the
date hereof.  Each section of the Seller
Disclosure Schedule shall be deemed to incorporate by reference all information
disclosed in any other section of the Seller Disclosure Schedule so long as the
nature of the exception is readily apparent from the text of such disclosure. 


 


3.1           Organization and
Good Standing.  The Seller is a limited
liability partnership duly organized, validly existing and in good standing
under the Laws of the State of Delaware, has all requisite power to own, lease
and operate its properties and to carry on its business as now being conducted,
and is duly qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which it owns or leases property or
conducts any business so as to require such qualification, except where the
failure to be so qualified would not reasonably be expected to have a Material
Adverse Effect. 


 


3.2           Authority and
Enforceability.  The Seller has the
requisite power and authority to enter into this Agreement and each of the
Ancillary Agreements and to consummate the transactions contemplated hereby and
thereby.  The execution and delivery by
the Seller of this Agreement and each of the Ancillary Agreements and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized by all necessary action on the part of the Seller.  This Agreement has been duly executed and
delivered by the Seller and, when executed and delivered by the Seller,


 


12





















 


each of the
Ancillary Agreements will be duly executed and delivered by the Seller.  Assuming due authorization, execution and
delivery by the Buyer and each other party thereto, this Agreement constitutes,
and, when executed and delivered by the Seller, each of the Ancillary
Agreements will constitute, the valid and binding obligation of the Seller,
enforceable against the Seller in accordance with its terms, except as such
enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting or relating to
creditors’ rights generally and (b) the availability of injunctive relief
and other equitable remedies.  


 


3.3           No Conflicts;
Consents.


 


(a)           The execution and
delivery of this Agreement and the Ancillary Agreements by the Seller does not,
and the consummation of the transactions contemplated hereby and thereby (in
each case, with or without the giving of notice or lapse of time, or both) will
not, (i) violate or conflict with the provisions of any of the Organizational
Documents of the Seller, (ii) violate, breach or constitute a default under, or
result in the termination, cancellation or acceleration of any term or
provision of (A) the Assigned Contracts or (B) any other Contract to which the
Seller or any of its Affiliates is a party or by which the Purchased Assets are
bound, (iii) violate or conflict with any Law, Permit or Order applicable to
the Seller on the date hereof, or (iv) result in the creation of any Liens upon
any of the Purchased Assets (other than any Permitted Lien), except in the case
of clause (ii)(B) where such violation, breach, default, termination,
cancellation or acceleration would not reasonably be expected to have a
Material Adverse Effect.   


 


(b)           Except as set forth in Section 3.3(b)
of the Seller Disclosure Schedule, no material Permit or Order of,
registration, declaration or filing with, or notice to, or authorization,
clearance, consent or approval of, any Governmental Entity or any other Person
is required to be made or obtained by the Seller in connection with the
execution and delivery of this Agreement and the Ancillary Agreements and the
consummation of the transactions contemplated hereby and thereby.


 


3.4           Financial Data.  


 


(a)           Section 3.4(a)(i) of
the Seller Disclosure Schedule contains true and complete copies of certain
historical financial data of the Business for each of the 2003 and 2004 fiscal
years and the eleven periods ended November 6, 2005, including any notes
related thereto (collectively, the “Financial Data”).  The Financial Data (A) has (i) in the case of
the financial data related to the 2003 and 2004 fiscal years, been prepared in
accordance with United Kingdom generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods
involved (except as may be indicated in the notes thereto) and under the
Seller’s accounting principles, methodologies and policies set forth on Section
3.4(a)(ii) of the Seller Disclosure Schedule (the “Accounting
Principles”) applied on a consistent basis throughout the periods
involved (except as may be indicated on Section 3.4(a)(ii) of the Seller
Disclosure Schedule) and (ii) in the case of the financial data related to
the eleven periods


 


13





















 


ended
November 6, 2005, been prepared in accordance with International Financial
Reporting Standards (except as may be indicated in the notes thereto) and under
the Accounting Principles and (B) is in all material respects consistent with
the Business’ books and records.  Each
item set forth in the Financial Data fairly presents in all material respects
the financial information contemplated by such item as of the respective dates
and for the respective periods thereof. 
Notwithstanding the foregoing, the Financial Data is qualified by the
fact that the Business has not been operated as a separate “stand-alone” entity
within the Seller’s organization.  As a
result, the Business has received certain allocated charges as specifically
identified in the notes to the Financial Data. 
Such charges, while believed by the Seller to be reasonable, do not necessarily
reflect the amounts which would have resulted from arms-length
transactions.  In addition, in order to
present stand-alone financial data for the Business, a number of significant
assumptions regarding the basis of presentation have been made, all of which
are believed by the Seller to be reasonable. 



 


(b)           The Seller does not
make any representations or warranties with respect to any financial
information for the Business delivered to the Buyer other than as specifically
set forth in this Section 3.4.  The
Seller makes no other representations or warranties with respect to the
financial information presented in the Financial Data.


 


3.5           Taxes.  Except as disclosed in Section 3.5 of the
Seller Disclosure Schedule, the Seller has filed or will have filed on a
timely basis all material Tax Returns required to be filed by it with respect
to the Business, and the Seller has or will have timely paid all such Taxes
shown thereon to be due.  None of the
Purchased Assets is subject to any Lien in favor of the United States pursuant
to Section 6321 of the Code for nonpayment of Taxes, or any lien in favor of
any state, provincial or locality pursuant to any comparable provision of
state, provincial or local Law, under which transferee liability might be imposed
upon the Buyer as a buyer of such Purchased Assets pursuant to Section 6323 of
the Code or any comparable provision of state, provincial or local Law.


 


3.6           Compliance with Law.



 


(a)           The Business is in
compliance with all Laws to which the Business is subject, except where such
failure to comply would not reasonably be expected to have a Material Adverse
Effect.  The Seller has not received any
notice of any claim of a violation of any Law to which the Business is subject,
except for such matters that would not reasonably be expected to have a
Material Adverse Effect.


 


(b)           To Knowledge of the
Seller, except as disclosed in Section 3.6(b) of the Seller Disclosure
Schedule, (i) each of the Business’ products that is subject to the Federal
Food Drug and Cosmetic Act (the “FFDCA”), is
manufactured and sold in compliance with all applicable requirements under the
FFDCA and similar laws in any domestic or foreign jurisdiction and (ii) none of
the Business’ products is adulterated or misbranded within the meaning of the
FFDCA or any pure food laws or ordinances of any state, province or city to
which such articles are shipped or to be shipped, except in


 


14





















 


the case of
clauses (i) and (ii), where such failure to comply would not reasonably be
expected to have a Material Adverse Effect


 


3.7           Title to Purchased
Assets.


 


(a)           The Seller has good
title to, or a valid interest in, all of the Purchased Assets, free and clear
of all Liens, other than Permitted Liens. 
This Agreement and the instruments of transfer to be executed and
delivered pursuant hereto will vest in the Buyer title to all of the Purchased
Assets, free and clear of all Liens, other than Permitted Liens.


 


(b)           The Seller owns all
Business Customer Information free and clear of all Liens, other than Permitted
Liens.  Other than any rights which the
Seller’s current of former customers may have in and to such Business Customer
Information, no Person other than the Seller and its Affiliates possesses any
rights with respect to the use of the Business Customer Information.


 


(c)           This Section 3.7 does
not relate to Intellectual Property, such items being the subject of Section
3.8.


 


3.8           Intellectual
Property. 


 


(a)           Section 3.8(a) of the Seller Disclosure Schedule sets forth a complete and accurate list of all
Intellectual Property owned by the Seller or its Affiliates that (i) is used or
held for use principally in connection with the conduct of the Business as
currently conducted and (ii) is registered or subject to an application for
registration (such scheduled Intellectual Property, the “Registered
Business Intellectual Property”). 



 


(b)           Except as set forth on Section 3.8(b) of the
Seller Disclosure Schedule, all of the Registered Business Intellectual
Property which is U.S. Business Intellectual Property (the “U.S. Registered Business Intellectual Property”) is
valid and in full force, is in the name of the Seller and is not the subject of
any cancellation or reexamination proceeding, and all necessary registration,
maintenance and renewal fees required to be paid as of the date hereof have
been paid, and all necessary documents required to be filed as of the date
hereof have been filed, with the U.S. Patent and Trademark Office for the
purposes of maintaining such registrations. 
Except as set forth on Section 3.8(b) of the Seller Disclosure
Schedule, there are no actions that would otherwise have to be taken by the
Seller within 60 days of the date hereof, including the payment of any
registration, maintenance or renewal fees or the filing of any documents,
applications or certificates for the purposes of maintaining any rights in any
U.S. Registered Business Intellectual Property.


 


(c)           Except as set forth on Section 3.8(c) of the
Seller Disclosure Schedule, the U.S. Business Intellectual Property
constitutes all of the material intellectual property necessary for the conduct
of the Business in the United States as currently conducted.  Except as set forth on Section 3.8(c) of
the Seller Disclosure


 


15





















 


Schedule, the
Seller owns, is licensed or otherwise has the right to use all U.S. Business
Intellectual Property.  Except as set forth on Section
3.8(c) of the Seller Disclosure Schedule, (i) the U.S. Business Intellectual
Property that is owned by the Seller is held free and clear of all Liens, other
than Permitted Liens; (ii) no proceedings have been instituted, are pending or,
to the Knowledge of the Seller, threatened, which challenge the rights of the
Seller in or the validity or enforceability of the U.S. Business Intellectual
Property, and, to the Knowledge of the Seller, there is no basis for such a
challenge; (iii) to the Knowledge of the Seller,
neither the use of the U.S. Business Intellectual Property nor the conduct of
the Business as currently conducted infringes, dilutes, misappropriates or
otherwise violates in any material respect the intellectual property rights of
any Person and no claim has been made, notice given, or dispute arisen to that
effect; and (iv) the Seller has not made any claim of a violation,
infringement, misuse or misappropriation by any Person, of their rights to, or
in connection with, the U.S. Business Intellectual Property and, to the
Knowledge of the Seller, there is no basis for such a claim.


 


(d)           Except as set forth in Section 3.8(d) of the
Seller Disclosure Schedule, the Seller has not permitted or licensed any
Person to use any Business Intellectual Property owned by the Seller.


 


(e)           The Seller has not
entered into any licenses, sublicenses, consents and other agreements (whether
written or otherwise), other than licenses for “off the shelf” commercially
available software programs, pertaining to (i) any Intellectual Property that
is material to and used in the conduct of the Business, or (ii) by which the
Seller or any Affiliate licenses or otherwise authorizes a Person to use any
Business Intellectual Property.  


 


(f)            The representations
and warranties contained in this Section 3.8 are the Seller’s sole
representations and warranties with respect to intellectual property matters.


 


3.9           Absence of Certain
Changes or Events.  Except as set
forth in Section 3.9 of the Seller Disclosure Schedule, during the
period from November 4, 2005 until the date of this Agreement, (a) the Business
has been conducted, in all material respects, in the ordinary course of
business consistent with past practice and (b) no event or change has occurred
that has had, or would reasonably be expected to have, a Material Adverse
Effect.


 


3.10         Assigned Contracts.  The Seller has furnished or made available to
the Buyer a true and correct copy of the Assigned Contracts.  Each of the Assigned Contracts is valid and
enforceable in accordance with its terms and (i) the Seller is not (with or
without the giving of notice or lapse of time, or both) in default, and, to the
Knowledge of the Seller, no other party is in default under any of the Assigned
Contracts, (ii) there is no written claim of default by either party in the
performance, observance or fulfillment of any obligation, covenant or condition
contained in any of the Assigned Contracts and (iii) no event, act or omission
has occurred that (with or without the giving of notice or lapse of time, or
both) would constitute a default by the Seller or, to the Knowledge of the


 


16





















 


Seller, any other
party under any of the Assigned Contracts, or would permit modification,
acceleration, or termination of any of the Assigned Contracts, or result in the
creation of any Lien on any of the Purchased Assets, other than a Permitted
Lien, in each case, except where such default, claim, event, act or omission
would not reasonably be expected to have a Material Adverse Effect.  Other than the Assigned Contracts and
Contracts for the procurement of raw materials and supplies, there are no other
Contracts to which the Seller is a party or by which the Seller is bound that
principally relates to the operation of the Business.


 


3.11         Litigation; Orders.  Except as set forth on Section 3.11 of the
Seller Disclosure Schedule:


 


(a)           There is no Action
pending or, to Knowledge of the Seller, 
threatened, against the Seller which (i)
challenges or seeks to enjoin, alter or materially delay the consummation of
the transactions contemplated by this Agreement or the Ancillary Agreements or
(ii) would reasonably be expected to have a Material Adverse
Effect.  There is no material unsatisfied
judgment, penalty, award or Order against the Seller.   


 


(b)           The Seller is in
compliance with each Order entered, issued or rendered by any Governmental
Entity to which the Seller is subject and the Seller has not received any
written notice of any claim of a violation of any Order, except where such
failure to comply would not reasonably be expected to have a Material Adverse
Effect.


 


3.12         Product Liability;
Product Recall.  


 


(a)           Except as set forth in Section
3.12(a) of the Seller Disclosure Schedule, the Seller does not know nor
have any reason to know of any claim in the last thirty-six (36) months based
on any product liability or warranty in connection with the Business other than
consumer complaints in the ordinary course of business which would not
reasonably be expected to have a Material Adverse Effect.


 


(b)           Except as set forth in Section
3.12(b) of the Seller Disclosure Schedule, there has not been, since
December 31, 2002, any product recall of any product manufactured, shipped or
sold by the Business.  


 


3.13         Customers and
Suppliers.  Section 3.13(i) of the
Seller Disclosure Schedule sets forth a list of the ten largest customers
of the Business and the ten largest suppliers to the Business, in each case
based on dollar volume during the Seller’s 2004 fiscal year.  Except as set forth in Section 3.13(ii) of
the Seller Disclosure Schedule, since the start of the Seller’s 2005 fiscal
year, no material and adverse change has occurred in the relationship between
the Seller or any Affiliate of the Seller and customers and suppliers of the
Business, taken as a whole, in each case, as it relates to the Business.  Since the start of the Seller’s 2005 fiscal
year, except as set forth in Section 3.13(ii) of the Seller Disclosure
Schedule, none of the customers or suppliers set forth on Section
3.13(i) of the Seller Disclosure Schedule has terminated or has provided
written notice of


 


17





















 


an intention to
terminate its relationship with the Business, and the Seller has not received
written notice that that a material supplier of the Business will not sell a
material amount of raw materials, supplies, merchandise or other goods to, or
that any material customer of the Business will not purchase a material amount
of the Business’ products from, the Seller on terms and conditions similar to
those used in current sales to and purchases from the Business.


 


3.14         Brokers.  Except for fees and commissions of Winchester
Capital which will be paid solely by the Seller, no broker, finder or
investment banker is entitled to any brokerage, finder’s, investment banker’s
or other fee or commission in connection with the transactions contemplated by
this Agreement or the Ancillary Agreements based upon arrangements made by or
on behalf of the Seller or its Affiliates.


 


ARTICLE IV



REPRESENTATIONS AND WARRANTIES OF THE BUYER


 


                The
Buyer represents and warrants to the Seller that each statement contained in
this Article IV is true and correct as of the date hereof.  


 


4.1           Organization and
Good Standing.  The Buyer is a
corporation duly organized, validly existing and in good standing under the
Laws of the State of Delaware, has all requisite power to own, lease and
operate its properties and to carry on its business as now being conducted, and
is duly qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which it owns or leases property or
conducts any business so as to require such qualification, except where the
failure to be so qualified would not reasonably be expected to materially
impair or delay the ability of the Buyer to perform its obligations under this
Agreement and the Ancillary Agreements and consummate the transactions
contemplated hereby and thereby.


 


4.2           Authority and
Enforceability.  The Buyer has the
requisite power and authority to enter into this Agreement and each of the
Ancillary Agreements and to consummate the transactions contemplated hereby and
thereby.  The execution and delivery by
the Buyer of this Agreement and each of the Ancillary Agreements and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized by all necessary action on the part of the Buyer.  This Agreement has been duly executed and
delivered by the Buyer and, when executed and delivered by the Buyer, each of
the Ancillary Agreements will be duly executed and delivered by the Buyer.  Assuming due authorization, execution and
delivery by the Seller that is a party thereto, this Agreement constitutes,
and, when executed and delivered by the Buyer, each of the Ancillary Agreements
will constitute, the valid and binding obligation of the Buyer, enforceable
against the Buyer in accordance with its terms, except as such enforceability
may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting or relating to creditors’ rights generally and
(ii) the availability of injunctive relief and other equitable remedies.  


 


18





















 


4.3           No Conflicts;
Consents.


 


(a)           The execution and
delivery of this Agreement and the Ancillary Agreements by the Buyer does not,
and the consummation of the transactions contemplated hereby and thereby (in
each case, with or without the giving of notice or lapse of time, or both) will
not, (i) violate or conflict with the provisions of any Organizational Document
of the Buyer, (ii) violate, breach or constitute a default under , or result in
the termination, cancellation or acceleration of any term or provision of any
contract to which the Buyer is a party, (iii) violate or conflict with any Law,
Permit or Order applicable to the Buyer on the date hereof, or (iv) result in
the creation of any Liens upon any of the assets owned or used by the Buyer,
except in each such case where such violation, default, conflict, default,
termination, cancellation, acceleration or Lien would not, individually or in the aggregate, reasonably
be expected to materially impair or delay the ability of the Buyer to perform
its obligations under this Agreement and the Ancillary Agreements and
consummate the transactions contemplated hereby and thereby.


 


(b)           Other than any notice
or disclosure filing by the Buyer or B&G Foods, Inc. required under the
Securities Exchange Act of 1934, as amended, or the rule of any applicable
stock exchange, no material Permit or Order of, registration, declaration or
filing with, or notice to, or authorization, clearance, consent or approval of,
any Governmental Entity or any other Person is required to be made or obtained
by the Buyer in connection with the execution and delivery of this Agreement
and the Ancillary Agreements and the consummation of the transactions
contemplated hereby and thereby.


 


4.4           Litigation.  There is no Action pending or,
to the knowledge of the Buyer, threatened, against the Buyer which (a)
challenges or seeks to enjoin, alter or materially delay the consummation of
the transactions contemplated by this Agreement or the Ancillary Agreements or
(b) individually or in the aggregate, would reasonably be expected to materially
impair or delay the ability of the Buyer to perform its obligations under this Agreement
and the Ancillary Agreements and consummate the transactions contemplated
hereby and thereby.


 


4.5           Availability of Funds.  The
Buyer has entered into, and provided the Seller with a true and complete copy
of the Credit Agreement Amendment, pursuant to which certain of the lenders
under the Buyer’s existing credit facility have agreed, subject to the terms
and conditions contained therein, to provide the Buyer with debt financing in
connection with the transactions contemplated by this Agreement (the “Financing”).  The
proceeds of the Financing, when taken together with cash currently available to
the Buyer, will be sufficient to enable the Buyer to consummate the
transactions contemplated by this Agreement and the Ancillary Agreements.  The Buyer believes that it and its Affiliates
are capable of satisfying all conditions to the Financing described in the
Credit Agreement Amendment that are within their exclusive control, and the
Buyer has no reasonable basis for believing that the Financing described in the
Credit Agreement Amendment will be materially delayed or will be unavailable.


 


19





















 


4.6           Brokers.  No broker, finder or investment banker is
entitled to any brokerage, finder’s, investment banker’s or other fee or
commission in connection with the transactions contemplated by this Agreement
and the Ancillary Agreements based upon arrangements made by or on behalf of
the Buyer or its Affiliate.


 


4.7           No Other Representations.  The
Buyer acknowledges and agrees that, except as expressly set forth in this
Agreement or in any certificate contemplated hereby and delivered by the Seller
in connection herewith, the Seller is not making any representation or warranty
whatsoever, express or implied, (i) with respect to the Business, the Purchased
Assets, the Excluded Assets, the Assumed
Liabilities, the Excluded Liabilities or the transactions contemplated by this
Agreement or (ii) as to the accuracy or completeness of any information
regarding the Business, the Purchased Assets, the Excluded Assets, the Assumed Liabilities or the Excluded
Liabilities furnished or made available to the Buyer and its
representatives.  Without limiting the
generality of the foregoing, the Seller makes no express or implied representation
or warranty to the Buyer with respect to: (a) any projections, estimates,
forecasts or budgets heretofore delivered to or made available to the Buyer of
future revenues, expenses or expenditures or future results of operations;
(b) except as expressly covered by a representation or warranty contained
in Article III, any other information or documents (financial or
otherwise) made available to the Buyer, any Affiliate thereof or their
respective counsel, accountants or advisers, including in certain due diligence
materials, management presentations, offering memoranda or in any other form in
contemplation of the transactions contemplated by this Agreement and the
Ancillary Agreements; or (c) except as expressly set forth herein, in the
Transition Services Agreement or in the Manufacturing Agreement, the
merchantability or fitness for a particular purpose.  With respect to any projection, estimate,
forecast or budget delivered by or on behalf of the Seller, the Buyer
acknowledges that: (w) there are uncertainties inherent in attempting to
make such projections, estimates, forecasts or budgets; (x) it is familiar
with such uncertainties; (y) it is taking full responsibility for making
its own evaluation of the adequacy and accuracy of all such projections and
forecasts furnished to it; and (z) it shall have no claim against the
Seller with respect thereto.


 


ARTICLE V



COVENANTS OF THE BUYER AND THE SELLER


 


5.1           Conduct of Business.
During the period from the date of this Agreement and continuing until the earlier
of the termination of this Agreement or the Closing Date, except (i) as set
forth in Section 5.1 of the Seller Disclosure Schedule, (ii) as
otherwise expressly contemplated by this Agreement or the Ancillary Agreements,
(iii) upon prior written notice (or, to the extent prior written notice is not
practicable, prompt written notice) as required by applicable Law or (iv) with
the prior written consent of the Buyer (which consent shall not be unreasonably
withheld or delayed), the Seller:


 


20





















 


(a)           shall
carry on the Business in a manner consistent with past practice;


 


(b)           shall
use commercially reasonable efforts to preserve intact the Business’ material
business relationships with customers, suppliers, distributors and others
having business dealings with it;


 


(c)           shall
not sell, assign, transfer, convey, lease, or otherwise dispose of, encumber or
subject to a Lien, other than a Permitted Lien, any of the material Purchased
Assets or Inventory, except sales of Inventory in the ordinary course of
business consistent with past practice;


 


(d)           shall
not diminish, increase or terminate promotional programs that in the aggregate
are material to the Business, except in the ordinary course of business
consistent with past practice; 


 


(e)           shall
not enter into, extend, modify, terminate or renew any of the Assigned
Contracts; 


 


(f)            shall
not take any action inconsistent with this Agreement or the consummation of the
Closing; and


 


(g)           shall
not agree, whether in writing or otherwise, or otherwise become obligated to do
any of the foregoing.


 


5.2           Access
to Information; Notification.  


 


(a)           The
Seller shall afford to the Buyer and any lender providing financing in
connection with the transactions contemplated hereby and their respective
accountants, counsel and other representatives reasonable access, upon
reasonable notice during normal business hours prior to the Closing, to the
properties, facilities, books and records of the Business and the officers,
employees, attorneys, and accountants of the Seller to discuss the business,
financial condition or prospects of the Business and the Purchased Assets; provided
that such access does not unreasonably disrupt the normal operations of the
Seller; provided, further, that any such access shall be
conducted at the Buyer’s expense and the Buyer shall not have access to any
information regarding the employees of the Seller; provided, further,
that such access shall comply with applicable Law.


 


(b)           The
Seller shall notify the Buyer in writing of the existence or happening of any
fact, event or occurrence which should be included in the Seller Disclosure Schedule in
order to make the representations and warranties set forth in Article III
true and correct in all material respects as of the Closing Date (each such
additional written disclosure, a “Seller Disclosure Schedule Supplement”),
it being understood and agreed that the delivery of such information shall not
in any manner constitute a waiver by the Buyer of any of the conditions
precedent to the Closing


 


21





















 


hereunder; provided, however, that in
determining whether there is a breach of any representation or warranty
contained in Article III for purposes of the indemnification to be
provided by the Seller pursuant to Article VIII, such representation or
warranty shall be qualified by any information provided pursuant to this Section 5.2(b),
but in any event only to the extent such information relates to facts, events
or circumstances first occurring after the date hereof.


 


5.3           Confidentiality.  The Buyer acknowledges
that the information being provided to it in connection with the consummation
of the transactions contemplated by this Agreement and the Ancillary Agreements
are subject to the terms of the Confidentiality Agreement, the terms of which
are incorporated herein by reference and shall continue in full force
and effect and survive the Closing, except that the non-disclosure and non-use
obligations of the Buyer under the Confidentiality Agreement shall terminate at
the Closing with respect to information to the extent related to the Business, the Purchased Assets and the Assumed Liabilities.  If this Agreement is, for any reason,
terminated prior to the Closing, the Confidentiality Agreement shall
nonetheless continue in full force and effect in accordance with its terms.


 


5.4           Support Services.  The
Buyer agrees that, except as expressly provided in the Transition Services
Agreement and/or the Manufacturing Agreement, as of the Closing Date, the
Seller shall have no obligation to provide any support or other services to the
Business.


 


5.5           Financing.  


 


(a)           The
Buyer shall use commercially reasonable efforts to comply with all covenants
and to satisfy all conditions to the funding of the Financing described in the
Credit Agreement Amendment that are in the exclusive control of Buyer and its
Affiliates.  The Buyer shall keep the
Seller reasonably apprised as to the status of the Financing, and shall
promptly notify the Seller if it becomes aware of any fact or circumstance that
the Buyer reasonably believes would materially delay the availability of the
Financing for any reason or make the Financing unavailable for any reason.


 


(b)           The
Seller shall cooperate reasonably, and shall cause its officers and employees
to cooperate reasonably, in connection with the Buyer’s arrangement for the
Financing, including making reasonably available, during normal business hours
and in a manner that does not unreasonably interfere with the Seller’s
operations, representatives and employees of the Seller and its accountants and
attorneys, including for purposes of due diligence and marketing efforts
related to the Financing.  The Buyer
shall reimburse the Seller for the Seller’s reasonable out-of-pocket expenses,
which shall be reasonably documented, incurred to comply with this Section 5.5(b).


 


5.6           Consents.  


 


(a)           Prior to the Closing, the Seller and the Buyer shall cooperate with each
other and shall use commercially reasonably efforts to obtain and deliver to
the


 


22





















 


Buyer on or prior to the Closing
Date, where necessary, assignments and consents authorizing the transfer and
assignment to the Buyer of the Purchased Assets.


 


(b)           To the extent that an
Assigned Contracts is not assignable without the consent, waiver or approval of
another Person, this Agreement shall not be deemed to constitute an assignment,
an attempted assignment or an undertaking to assign such Assigned Contract if
such consent, waiver or approval is not given or if such an assignment,
attempted assignment or undertaking otherwise would constitute a breach thereof
or cause a loss of benefits thereunder. 
In the event that the transactions contemplated by this Agreement result
in the termination of an Assigned Contract, the Seller shall be liable for, and
shall indemnify the Buyer and hold the Buyer harmless against, any costs or
expenses payable under such Assigned Contract which result from such
termination.


 


(c)           To the extent that any
such third party consent or approval is not obtained prior to the Closing, the Seller shall cooperate with the Buyer
in any reasonable arrangement designed to provide the Buyer after the Closing
the benefits intended to be assigned to the Buyer under the applicable Assigned
Contract, including enforcement at the cost and for the account of the Buyer of
any and all rights of the Seller against the other party thereto arising out of
the breach or cancellation thereof by such other party or otherwise.


 


5.7           Public Announcements.  Neither the Buyer nor the Seller shall, nor
shall any of their respective Affiliates, without the approval of the other
parties, issue any press releases or otherwise make any public statements with
respect to the transactions contemplated by this Agreement, except as may be
required by applicable Law or by obligations pursuant to any listing agreement
with any national securities exchange or stock market, in which case the party required to make the release or announcement
shall, to the extent practicable, allow the other party reasonable time to
comment on such release or announcement in advance of such issuance; provided
that each of the parties may make internal announcements to their respective
employees regarding the transactions contemplated by this Agreement and the
Ancillary Agreements.


 


5.8           Transfer
Taxes.  The Buyer and the Seller
shall share and pay all Transfer Taxes, on a 50/50 basis, arising out of, or in
connection with, the transactions contemplated by this Agreement.  Upon the request of either party, the other
party shall furnish proof of payment of a Transfer Tax.  The parties shall cooperate in filing all
necessary documentation and Tax Returns with respect to such Transfer Taxes.


 


5.9           Bulk
Sales Laws.  To the extent permitted
by Law, the Buyer and the Seller hereby waive compliance by the Buyer and the
Seller with the bulk sales Law and any other similar Laws in any applicable
jurisdiction in respect of the transactions contemplated by this Agreement and
the Ancillary Agreements.  The Seller
agrees to indemnify and hold Buyer harmless from and against any and all Losses
incurred by the Buyer or any of its Affiliates as the transferee of the
Purchased Assets as a result of any


 


23





















 


failure to comply with any such bulk sales Law or
similar Laws with respect to the Purchased Assets.


 


5.10         Access
to Books and Records.  


 


(a)           The
Buyer shall preserve until the sixth anniversary of the Closing Date all
records possessed or to be possessed by the Buyer relating to the Business
prior to the Closing.  The Buyer shall
provide the Seller and its representatives with access, to the extent necessary
for reasonable business purposes, and upon prior reasonable written request,
during regular business hours, and provided that such access does not
unreasonably disrupt the normal operations of the Buyer, to (i) the
officers and employees of the Buyer and its Affiliates and (ii) the books
of account and records of the Buyer and its Affiliates, but, in each case, only
to the extent relating to the Business prior to the Closing, and the Seller and
its representatives shall have the right to make copies of such books and
records at their sole cost. 
Out-of-pocket costs and expenses incurred by the Buyer in connection
with this Section 5.10(a) shall be reimbursed by the Seller.


 


(b)           The
Seller shall preserve until the sixth anniversary of the Closing Date all
records possessed or to be possessed by the Seller principally relating to the
Business prior to the Closing.  The
Seller shall provide the Buyer and its representatives with access, to the
extent necessary for reasonable business purposes, and upon prior reasonable
written request, during regular business hours, and provided that such access
does not unreasonably disrupt the normal operations of the Seller, to (i) the
officers and employees of the Seller and its Affiliates and (ii) the books
of account and records of the Seller and its Affiliates, but, in each case,
only to the extent principally relating to the Business prior to the Closing,
and the Buyer and its representatives shall have the right to make copies of
such books and records at their sole cost. 
Out-of-pocket costs and expenses incurred by the Seller in connection
with this Section 5.10(a) shall be reimbursed by the Buyer.


 


(c)           Notwithstanding
any other provision of this Section 5.10, access to or possession of any
books or records or materials or information, as the case may be, may be denied
to the requesting party if the providing party is advised by counsel that to
grant such access or possession would reasonably be expected to violate any
Law.


 


5.11         Solicitation
of Seller’s or Buyer’s Employees.


 


(a)           During
the one-year period following the Closing, the Buyer shall not, either alone or
in conjunction with any other Person, or directly or indirectly (including
through any of its present or future Affiliates), solicit for employment any
persons who within the twelve (12) month period ending on the Closing Date had
been an employee of the Seller; provided, however, that the
foregoing provision will not prevent the Buyer from hiring any such person (i) who
responds to a public advertisement placed by the Buyer or any of its
Affiliates, (ii) who has not been employed by the Seller during the
preceding six (6) months or (iii) who has been terminated by the
Seller.  


 


24





















 


(b)           During
the one-year period following the Closing, the Seller shall not, either alone
or in conjunction with any other Person, or directly or indirectly (including
through any of its present or future Affiliates), solicit for employment any
persons who within the twelve (12) month period ending on the Closing Date had
been an employee of the Buyer; provided, however, that the
foregoing provision will not prevent the Seller from hiring any such person (i) who
responds to a public advertisement placed by the Seller or any of its
Affiliates, (ii) who has not been employed by the Buyer during the
preceding six (6) months or (iii) who has been terminated by the Buyer.  


 


(c)           Each
party agrees that a monetary remedy for a breach of the agreements set forth in
this Section 5.11 will be inadequate and impracticable and further agree
that such a breach would cause irreparable harm, and that the non-breaching
party shall be entitled to temporary and permanent injunctive relief without
the necessity of proving actual damages. 
In the event of such a breach, the breaching party agrees that the
non-breaching party shall be entitled to such injunctive relief, including temporary
restraining orders, preliminary injunctions and permanent injunctions as a
court of competent jurisdiction shall determine.  


 


(d)           If
any of the provisions of this Section 5.11 is invalid in part, it shall be
curtailed, as to time, location or scope, to the minimum extent required for
its validity under the laws of the United States and shall be binding and
enforceable with respect to the Buyer and the Seller as so curtailed.


 


5.12         Prohibited
Activities.  Until the Closing Date,
the Buyer shall not, and shall not knowingly permit, instruct or encourage its
employees, agents or representatives to, provide, furnish or formally announce
any incentive to any customer of the Business intended to reduce or defer such
customer’s purchases of product from the Seller, whether by means of any
agreement, arrangement, understanding or promotion.  Except for customary holiday season
promotional activities consistent with past practice and the price increase
contemplated for 2006 which has previously been announced by the Seller to
certain of the customers of the Business and disclosed by the Seller to the
Buyer, until the Closing Date, the Seller shall not, and shall not knowingly
permit, instruct or encourage its employees, agents or representatives to,
other than in the ordinary course of business consistent with past practice,
provide, furnish or formally announce any incentive to any customer of the
Business intended to increase or accelerate such customer’s purchases of
product from the Seller prior to the Closing Date in lieu of purchases that
would otherwise reasonably be expected to be made following the Closing Date,
whether by means of any agreement, arrangement, understanding or promotion.


 


5.13         Consumer
Claims and Complaints.  The parties
shall assure that their respective consumer affairs departments cooperate and
assist each other to assure the expeditious handling of consumer claims and
complaints.  


 


25





















 


5.14         Promotion/Pricing
Allowance.  


 


(a)           In
the event that customers of the Business bill or make a deduction against the
Buyer’s otherwise valid invoices, for promotion or pricing allowances (such as
slotting allowances, retailer or distributor ads, store display allowances and
similar items (other than returns)) applicable to the Business prior to Closing
or to any of the Seller’s (or its Affiliate’s) businesses other than the
Business, the Buyer will forward on a weekly basis by the following Tuesday
such bill or evidence of such deduction (the “Seller’s Deductions”)
to the Seller for payment by the Seller. 



 


(b)           In
the event that customers of the Business bill the Seller (or its Affiliates) or
make a deduction against the Seller’s (or its Affiliates’) otherwise valid
invoices for promotion or pricing allowances applicable to the Business as
conducted from and after the Closing or for returns in the ordinary course of
business consistent with past practice of the Business’ products received after
the Closing Date for products sold prior to the Closing Date or for returns of
the Business’ products received after the Closing Date for products sold on or
after the Closing Date, the Seller will forward on a weekly basis by the
following Tuesday such bill or evidence of such deduction (the “Buyer’s Deductions”) to the Buyer for payment by the Buyer.


 


(c)           A
representative of each of the Seller and the Buyer will coordinate the cash
settlement process netting the Buyer’s Deductions against the Seller’s
Deductions.  Proper documentation will be
required in each case.  If the Buyer’s
Deductions are greater than the Seller’s Deductions in any week, the Buyer will
transfer cash to the Seller by Thursday of that week.  If the Seller’s Deductions are greater than
the Buyer’s Deductions in any week, the Seller will transfer cash to the Buyer
by Thursday of that week.  Any minor
discrepancies found during that week’s settlement will be resolved by the
following week’s cash settlement.  A ten
percent (10%) annual percentage interest rate will be applied to deductions for
both parties, commencing on the date the invalid deduction was taken against an
otherwise valid invoice and ending on the date that the cash settlement invoice
is passed to the appropriate party.  At
such time that the weekly net cash settlements are consistently no longer
material, the Seller and Buyer will agree by mutual consent to waive the
application of an interest rate. 


 


5.15         Administration
of Accounts and Related Matters; Customer Inquiries.


 


(a)           All
payments and reimbursements received by the Seller or any of its Affiliates
after the Closing related to or arising out of the Business or the Purchased
Assets after the Closing, or any of the Business’ finished goods Inventory that
is returned to the Seller or any of its Affiliates, shall be held by such person
in trust for the benefit of the Buyer and, immediately upon receipt by such
Person of any such payment, reimbursement or inventory, such Person shall pay
over to the Buyer the amount of such payment or reimbursement or deliver to the
Buyer such finished goods Inventory without right of set off.  


 


26





















 


(b)           All
payments and reimbursements received by the Buyer or any of its Affiliates
after the Closing related to or arising out of the Excluded Assets or Excluded
Liabilities shall be held by such Person in trust for the benefit of the Seller
and, immediately upon receipt by such person of any such payment or
reimbursement, such Person shall pay over to the Seller the amount of such
payment or reimbursement without right of set off.  


 


(c)           The
Seller covenants and agrees that it will promptly forward to the Buyer any mail
(physical, electronic or otherwise), facsimile or telephone inquiries of actual
or potential clients, customers, suppliers and vendors of or relating to the
Business, including customer orders.


 


5.16         Termination
of Broker Agreements.  On or prior to
the Closing, the Seller will send all notices (which notices shall be subject
to prior review by the Buyer) required to cause the termination of the portion
of all of the broker agreements related to the Business entered into by it or
its Affiliates.  Notwithstanding the
foregoing, the Buyer and the Seller agree that (a) the timing of the
actual termination of the portion of such broker agreements related to the
Business will occur pursuant to the terms of such broker agreements, (b) the
Seller shall be liable for, and shall indemnify Buyer and hold Buyer harmless
against, any liabilities, damages, costs or expenses resulting from any such
termination and (c) the Buyer shall be responsible and pay for any
commissions incurred under such broker agreements for sales by the Buyer or the
Business on or after the Closing Date. 
The commission schedules and termination notice requirements for the
portion of each of the broker agreements related to the Business are set forth
on Section 5.16 of the Seller Disclosure Schedule.  Promptly following delivery of the foregoing
termination notices, the Seller shall deliver to the Buyer a schedule of
termination dates for the portion of each of the broker agreements set forth on
Section 5.16 of the Seller Disclosure Schedule.


 


5.17         Packaging
Materials and Supplies.  The Seller
hereby consents to the use and depletion by the Buyer after the Closing Date of
those on-hand packaging materials and inventories included in the existing
Inventory as of the Closing Date which bear the name and/or corporate logo of
the Seller and/or its Affiliates.  If the
Buyer elects to use such on-hand packaging materials, the Buyer shall use such
on-hand packaging materials on a first-use basis (in preference to any other
packaging materials) so as to exhaust such on-hand packaging materials as soon
as possible after the Closing Date.


 


5.18         Further
Assurances.  Each of the Buyer and
the Seller shall execute such documents and other instruments and take such
further actions as may reasonably be required or desirable to carry out the
provisions hereof and consummate the transactions contemplated by this
Agreement.  Upon the terms and subject to
the conditions hereof, each of the Buyer and the Seller shall use its
respective commercially reasonable efforts to (a) take or cause to be
taken all actions, and to do or cause to be done all other things, necessary,
proper or advisable to consummate the transactions contemplated by this
Agreement as promptly as practicable, and (b) obtain in a timely manner
all necessary waivers, consents and approvals and to effect all necessary
registrations and filings.


 


27





















 


5.19         Exclusivity.  The Seller has been in negotiations with
other parties concerning a possible sale of the Business and the Purchased
Assets and such other parties have obtained certain information relating
thereto.  The Seller agrees to
immediately terminate, and to cause its Affiliates and its and their respective
representatives, agents, officers, employees, attorneys and accountants to
terminate, all existing negotiations or activities with any party other than
the Buyer, its Affiliates and their respective representatives, agents,
officers, employees, attorneys and accountants concerning the sale of all or
any part of the Business or the Purchased Assets.  From the date of this Agreement until the
earlier of (a) the termination of this Agreement pursuant to Section 7.1
and (b) the Closing, (i) the Seller agrees not to, and agrees to
cause its Affiliates and its and their respective representatives, agents,
officers, employees, attorneys and accountants not to, directly or indirectly,
solicit, negotiate or enter into other substantive discussions with any party
other than the Buyer, its Affiliates and their respective representatives,
agents, officers, employees, attorneys and accountants relating to the sale of
all or any part of the Business or the Purchased Assets and (ii) the
Seller agrees not to provide this Agreement or any financial or operating
information relating to the Businesses or the Purchased Assets to any party
other than Buyer, its Affiliates and their respective representatives, agents,
officers, employees, attorneys and accountants, except as may be required by
applicable Law or by obligations pursuant to any listing agreement with any
national securities exchange or stock market,
in which the Seller shall, to the extent practicable, allow the Buyer
reasonable time to comment on such release or announcement in advance of such
issuance.  Each party agrees that
a monetary remedy for a breach of the agreements set forth in this Section 5.19
will be inadequate and impracticable and further agree that such a breach would
cause irreparable harm, and that the Buyer shall be entitled to temporary and
permanent injunctive relief without the necessity of proving actual
damages.  In the event of such a breach,
the Seller agrees that the Buyer shall be entitled to such injunctive relief,
including temporary restraining orders, preliminary injunctions and permanent
injunctions as a court of competent jurisdiction shall determine.  


 


5.20         Non-Competition;
Confidentiality.


 


(a)           The
Seller hereby agrees that for the period commencing on the Closing Date and
ending on the second (2nd) anniversary of the Closing Date, neither the Seller
nor its Affiliates shall participate or engage, directly or indirectly, in the
manufacturing (except as contemplated by this Agreement and the Manufacturing
Agreement), marketing or selling molasses products anywhere in the world (the “Restricted Business”). 
Notwithstanding the foregoing, (i) ownership of stock or other
equity interests of any Person shall not be deemed a violation of this Section 5.20
so long as the Seller and its Affiliates collectively do not own more than an
aggregate of five percent (5%) of the voting stock or other equity interests of
such Person, (ii) the acquisition by the Seller or any of its Affiliates
of any equity or other interest in any entity that engages, directly or
indirectly, in the Restricted Business (a “Restricted Person”)
shall not be deemed a violation of this Section 5.20 so long as the annual
revenue of such Restricted Person derived from the Restricted Business does not
exceed


 


28





















 


twenty percent (20%) of the total annual revenue of
such Restricted Person and (iii) the direct or indirect acquisition of the
Seller or any of its Affiliates by a Restricted Person shall not be deemed a
violation of this Section 5. .20.


 


(b)           The
Seller shall not (and shall cause its Subsidiaries and Affiliates not to)
directly or indirectly, divulge to any Person, or use for its own benefit
(except to the extent used prior to the date hereof in its businesses other
than the Business), any trade secrets, proprietary information and any other
confidential information exclusively related to the Business, the Purchased
Assets, customers or any data or statistical information of the Business,
except to the extent that such information (i) is in or enters the public
domain through no fault of the Seller or any of its Subsidiaries or Affiliates
or (b) is lawfully acquired by the Seller or any of its Subsidiaries or
Affiliates after the Closing from sources that are not prohibited from
disclosing such information by a legal, contractual or fiduciary obligation.


 


(c)           Each
party agrees that a monetary remedy for a breach of the agreements set forth in
this Section 5.20 will be inadequate and impracticable and further agree
that such a breach would cause irreparable harm, and that the non-breaching
party shall be entitled to temporary and permanent injunctive relief without
the necessity of proving actual damages. 
In the event of such a breach, the breaching party agrees that the
non-breaching party shall be entitled to such injunctive relief, including
temporary restraining orders, preliminary injunctions and permanent injunctions
as a court of competent jurisdiction shall determine.  


 


(d)           If
any of the provisions of this Section 5.20 is invalid in part, it shall be
curtailed, as to time, location or scope, to the minimum extent required for
its validity under applicable law and shall be binding and enforceable with
respect to the Buyer and the Seller as so curtailed.


 


5.21         Notices
Prior to Closing.  Prior to the
Closing, the Seller and the Buyer shall give prompt written notice to the other
of (a) any breach or default by such party of any of its representations,
warranties, covenants or agreements hereunder, (b) any written notice from
any third party alleging that the consent of such third party is or may be
required in connection with, or otherwise challenging, the transactions
contemplated by this Agreement and (iii) any written notice from any
Governmental Entity in connection with the transactions contemplated by this
Agreement.  Prior to the Closing, the
Seller shall give prompt written notice to the Buyer if the Seller receives any
written notice from a material supplier of the Business that it will not sell
raw materials, supplies, merchandise or other goods to, or that any material
customer of the Business will not purchase products from, the Buyer or the
Buyer’s Affiliates after the Closing Date.


 


5.22         Financial
Information Cooperation.  From and
after the date hereof, the Seller shall reasonably cooperate with the Buyer in
the Buyer’s preparation, review and audit of any financial statements and other
financial information regarding the Business that may be required to be
included in the financial reports and other public disclosures of the Buyer’s
parent, B&G Foods, Inc., pursuant to Regulations S-X and S-K
promulgated


 


29





















 


under the Securities Act of 1933, as amended, and the
Securities Exchange Act of 1934, as amended, in connection with the transaction
contemplated hereby; provided that such cooperation shall not
unreasonably disrupt the normal operations of the Buyer.  Such cooperation shall include the execution
and delivery of a customary representation letter to the accounting firm
responsible for reviewing and auditing such financial statements.  The accounting firm responsible for the
review and audit of such financial statements shall be selected by the
Buyer.  All costs and expenses incurred
in connection with the preparation, review and audit of the financial
statements and financial information contemplated by this Section shall be
paid by the Buyer.


 


5.23         Assigned
Equipment.  


 


(a)           In
accordance with Section 2.1, the Assigned Equipment shall be the property
of the Buyer immediately following the Closing. 
The Buyer agrees to allow the Seller to utilize and operate the Assigned
Equipment in connection with the Seller’s performance of its obligations under
the Manufacturing Agreement; provided that the Seller shall be required
to utilize and operate the Assigned Equipment in the ordinary course of
business with the same standard of care as the Seller utilized and operated the
Assigned Equipment prior to the Closing and in accordance with its obligations
under the Manufacturing Agreement. 
Subject to the foregoing, the Seller shall not be liable to the Buyer
for any damage or loss to the Assigned Equipment (other than non-extraordinary
repairs in the ordinary course of Business).


 


(b)           As
soon as reasonably practicable after the expiration, termination or
cancellation of the Manufacturing Agreement (and in any event within 30 days
following such expiration, termination or cancellation), the Seller shall
disassemble, package, and remove the Assigned Equipment from the Seller’s
facilities, which disassembly, packaging and removal will be at the Buyer’s
sole cost, risk and expense; provided that (i) prior to such
disassembly, packaging and removal the Seller shall discuss with the Buyer the
appropriate methods for such disassembly, packaging and removal and (ii) the
costs and expenses incurred by the Seller for such disassembly, packaging and
removal shall be reasonable.  The Seller
agrees to then make the Assigned Equipment available for pickup by the Buyer at
the Seller’s facilities and to allow the Buyer reasonable access to the
Assigned Equipment (for the above purpose) during normal business hours and
upon reasonable notice.  The Buyer shall
be responsible for any reasonable repairs of any material damage caused to the
Seller’s facility by the removal of the Assigned Equipment, it being understood
that the Buyer shall not liable for incidental damages related thereto, such as
holes from removed screws, disconnected waterlines, etc.  


 


30





















 


ARTICLE VI

CONDITIONS TO CLOSING


 


6.1           Conditions
to Obligations of the Buyer and the Seller. 
The obligations of the Buyer and the Seller to consummate the
transactions contemplated by this Agreement are subject to the satisfaction on
or prior to the Closing Date of the following conditions:


 


(a)           No
temporary restraining order, preliminary or permanent injunction or other Order
and no Action shall be in effect or have been instituted enjoining, prohibiting
or seeking to enjoin, prohibit or otherwise prevent the consummation of the
transactions contemplated by this Agreement or the Ancillary Agreements.


 


(b)           No
Law shall have been enacted or shall be deemed applicable to the transactions
contemplated by this Agreement which makes the consummation of such
transactions illegal. 


 


6.2           Conditions
to Obligation of the Buyer.  The
obligation of the Buyer to consummate the transactions contemplated by this
Agreement is subject to the satisfaction (or waiver in writing by the Buyer in
its sole discretion) of the following further conditions:


 


(a)           Each
of the representations and warranties of the Seller set forth in this Agreement
that is qualified by materiality shall be true and correct at and as of the
Closing Date as if made at and as of the Closing Date and each of such
representations and warranties that is not so qualified shall be true and
correct in all material respects at and as of the Closing Date as if made at
and as of the Closing Date (in each case, without giving effect to any Seller
Disclosure Schedule Supplement), except (i) to the extent that such
representations and warranties refer specifically to an earlier date, in which
case such representations and warranties shall have been true and correct as of
such earlier date and (ii) for changes explicitly contemplated by this
Agreement.


 


(b)           The
Seller shall have performed or complied in all material respects with all
obligations and covenants required by this Agreement to be performed or complied
with at or prior to the Closing Date.


 


(c)           During
the period from the date of this Agreement until the Closing, no event has
occurred that has had, or would reasonably be expected to have, a Material
Adverse Effect.


 


(d)           The
Buyer shall have received a certificate dated the Closing Date signed on behalf
of the Seller by an officer of the Seller to the effect that the conditions set
forth in Sections 6.2(a), 6.2(b) and 6.2(c) have been satisfied (the “Seller Closing Certificate”).


 


31





















 


(e)           The
Buyer shall have received the proceeds of the Financing in accordance with the
terms of the Credit Agreement Amendment or otherwise on terms acceptable to the
Buyer.


 


(f)            The
consents (if any) listed on Section 6.2(f) of the Seller
Disclosure Schedule hereto shall have been obtained in form and
substance reasonably satisfactory to the Buyer.


 


(g)           The
Seller shall have executed and delivered to the Buyer all agreements and other
documents required to be executed and delivered by the Seller to the Buyer
pursuant to Section 2.7(a).


 


6.3           Conditions
to Obligation of the Seller.  The
obligation of the Seller to consummate the transactions contemplated by this
Agreement is subject to the satisfaction (or waiver in writing by the Seller in
its sole discretion) of the following further conditions:


 


(a)           Each
of the representations and warranties of the Buyer set forth in this Agreement
that is qualified by materiality shall be true and correct at and as of the
Closing Date as if made at and as of the Closing Date and each of such
representations and warranties that is not so qualified shall be true and
correct in all material respects at and as of the Closing Date as if made at
and as of the Closing Date, except (i) to the extent that such
representations and warranties refer specifically to an earlier date, in which
case such representations and warranties shall have been true and correct as of
such earlier date, (ii) for changes explicitly contemplated by this
Agreement, or (iii) for circumstances under which the breach of the
representation or warranty would not reasonably be expected to materially
impair or delay the ability of the Buyer to perform its obligations under this
Agreement and the Ancillary Agreements and consummate the transactions
contemplated hereby and thereby.


 


(b)           The
Buyer shall have performed or complied in all material respects with all
obligations and covenants required by this Agreement to be performed or
complied with at or prior to the Closing Date.


 


(c)           The
Seller shall have received a certificate dated the Closing Date signed on
behalf of the Buyer by an officer of the Buyer to the effect that the
conditions set forth in Sections 6.3(a) and 6.3(b) have been
satisfied (the “Buyer Closing Certificate”).


 


(d)           The
Buyer shall have executed and delivered to the Seller all agreements and other
documents required to be executed and delivered by the Buyer to the Seller
pursuant to Section 2.7(b).


 


32





















 


ARTICLE VII



TERMINATION


 


7.1           Termination.


 


(a)           This
Agreement may be terminated and the transactions contemplated hereby may be
abandoned at any time prior to the Closing:


 


(i)            by
mutual written consent of the Buyer and the Seller; 


 


(ii)           by
the Buyer or the Seller if the Closing does not occur on or before January 6,
2005; provided that the right to terminate this Agreement under this
clause (ii) shall not be available to any party whose breach of a
representation, warranty, covenant or agreement under this Agreement has been
the cause of or resulted in the failure of the Closing to occur on or before
such date; 


 


(iii)          by
the Buyer (provided that the Buyer is not in breach of any of the
representations, warranties, covenants or other agreements contained herein) if
(A) there has been a breach by the Seller of any representation, warranty,
covenant or agreement contained in this Agreement or if any representation or
warranty of the Seller shall have become untrue, in either case such that the
conditions set forth in Sections 6.2(a), 6.2(b) or 6.2(c) would not
be satisfied, and (B) such breach is not curable, or, if curable, is not
cured within 30 days after written notice of such breach is given to the Seller
by the Buyer; 


 


(iv)          by
the Seller (provided that the Seller is not in breach of any of the
representations, warranties, covenants or other agreements contained herein) if
(A) there has been a breach by the Buyer of any representation, warranty,
covenant or agreement contained in this Agreement or if any representation or
warranty of the Buyer shall have become untrue, in either case such that the
conditions set forth in Sections 6.3(a) or 6.3(b) would not be
satisfied, and (B) such breach is not curable, or, if curable, is not
cured within 30 days after written notice of such breach is given to the Buyer
by the Seller; 


 


(v)           by
the Buyer or the Seller if a Governmental Entity shall have issued an Order or
taken any other Action, in any case having the effect of restraining, enjoining
or otherwise prohibiting, or attempting to restrain, enjoin or otherwise
prohibit, the transactions contemplated by this Agreement.


 


(b)           The party desiring to terminate this Agreement
pursuant to Section 7.1(a)(ii), (iii), (iv) or (v) shall give
written notice of such termination to the other party hereto. 


 


7.2           Effect
of Termination.  In the event of
termination of this Agreement as provided in Section 7.1, this Agreement
shall immediately become void and there shall


 


33





















 


be no liability or obligation on the part of Buyer or
Seller or their respective officers, directors, stockholders or Affiliates,
except as set forth in Section 7.3; provided that the provisions of
Sections 5.3 (Confidentiality), 5.7 (Public Announcements), 7.2 (Effect of Termination)
and 7.3 (Remedies) and Article IX of this Agreement shall remain in full
force and effect and survive any termination of this Agreement and (b) such
termination shall relieve each party to this Agreement from all violations of
this Agreement that occurred prior to such termination other than as provided
in Section 7.3.


 


7.3           Remedies.
Any party terminating this Agreement pursuant to Section 7.1 shall have
the right to recover damages sustained by such party as a result of any willful
breach by the other party of any representation, warranty, covenant or
agreement contained in this Agreement or fraud or willful misrepresentation; provided,
however, that the party seeking relief is not in breach of any
representation, warranty, covenant or agreement contained in this Agreement
under circumstances which would have permitted the other party to terminate the
Agreement under Section 7.1.


 


ARTICLE VIII



INDEMNIFICATION


 


8.1           Survival.


 


(a)           All
representations and warranties contained in this Agreement, the Ancillary
Agreements or in any Schedule, Exhibit or certificate delivered pursuant
to this Agreement or the Ancillary Agreements shall survive the Closing for a
period of eighteen (18) months following the Closing Date, except that the
representations and warranties in Sections 3.2, 3.14, 4.2 and 4.6 shall survive
the Closing Date in perpetuity.


 


(b)           All
covenants and agreements contained in this Agreement shall survive the Closing
Date in perpetuity and shall remain in full force and effect, except that in
the case of any covenant or agreement that by its terms terminates on a
specific date, such covenant or agreement shall survive until sixty (60) days
following the expiration of any applicable statute of limitations.


 


(c)           The
period for which a representation or warranty, covenant or agreement survives
the Closing is referred to herein as the “Applicable Survival Period”.  In the event notice of claim for
indemnification under Section 8.2 or 8.3 is given within the Applicable
Survival Period, the representation or warranty, covenant or agreement that is
the subject of such indemnification claim shall survive with respect to such
claim only until such claim is finally resolved.


 


8.2           Indemnification
by the Seller.


 


(a)           Subject
to the limitations set forth in this Article VIII, the Seller shall
indemnify and defend the Buyer and its Affiliates and their respective
stockholders,


 


34





















 


members, managers, officers, directors, employees,
agents, successors and assigns (the “Buyer Indemnitees”)
against, and shall hold the Buyer Indemnitees harmless from, any loss,
liability, claim, charge, action, suit, proceeding, assessed interest, penalty,
damage, Tax or expense, including reasonable legal fees and expenses (collectively,
“Losses”) resulting from, arising out
of, or incurred by the Buyer Indemnitees in connection with, or otherwise with
respect to (i) any breach of any
representation, warranty, covenant or agreement of the Seller contained in this
Agreement or any of the Ancillary Agreements and (ii) any Excluded
Liability.


 


(b)           The
Seller shall not be liable for any Loss or Losses (other than Losses resulting
from, arising out of, or incurred by the Buyer Indemnitee in connection with,
or otherwise with respect to any Excluded Liability) (i) unless the claim
for such Loss or Losses is brought within the Applicable Survival Period, (ii) unless
and until the amount of Losses arising from any single event, or a series of
related events, exceeds $10,000 (the “Covered Losses”)
and (iii) unless and until the aggregate amount of all Covered Losses
incurred by the Buyer Indemnitees exceeds 1% of the Cash Consideration (the “Deductible”), and then only to the extent that such Covered
Losses exceed the Deductible; provided that, except as provided in Section 8.2(c),
the cumulative indemnification obligation of the Seller under this Article VIII
shall in no event exceed 25% of the amount of the Cash Consideration.


 


(c)           Notwithstanding
anything to the contrary set forth herein, no limitation on the indemnification
obligations set forth in this Section 8.2 shall apply to any breach of
representations or warranties made in Sections 3.1, 3.2, 3.7(a) or 3.14; provided
that that the cumulative indemnification obligation of the Seller under this Article VIII
(including any breach of representations or warranties made in Sections 3.1,
3.2, 3.7(a) or 3.14) shall in no event exceed the amount of the Cash
Consideration.


 


(d)           In
addition to the limitations set forth in Sections 8.2(b), the Seller shall not
be obligated to indemnify the Buyer Indemnitees with respect to (i) any
item disclosed in the Seller Disclosure Schedule or in any Seller
Disclosure Schedule Supplement to the extent provided in Section 5.2(b),
(ii) any covenant or condition waived in writing by the Buyer on or prior
to the Closing or (iii) any indirect, special, incidental, consequential
or punitive damages (except to the extent any of the foregoing damages are
included in an award to a third party or Governmental Entity).


 


(e)           The Buyer acknowledges and agrees that, should the Closing occur, the
sole and exclusive remedy of the Buyer Indemnitees with respect to any and all
matters arising out of, relating to or connected with this Agreement, the
Business, the Purchased Assets, the
Excluded Assets, the Assumed Liabilities or the Excluded Liabilities (other
than claims of, or causes of action arising from, fraud or actions for specific
performance or injunctive relief) shall be pursuant to the indemnification
provisions set forth in this Article VIII. 



 


35





















 


8.3           Indemnification
by the Buyer.  


 


(a)           Subject
to the limitations set forth in this Article VIII, the Buyer shall
indemnify and defend the Seller, its Affiliates and their respective
stockholders, members, managers, officers, directors, employees, agents,
successors and assigns (the “Seller Indemnitees”)
against, and shall hold the Seller Indemnitees harmless from, any Loss
resulting from, arising out of, or incurred by the Seller Indemnitees in
connection with, or otherwise with respect to (i) any breach of any
representation, warranty, covenant or agreement of the Buyer contained in this
Agreement or any of the Ancillary Agreements and (ii) any Assumed
Liabilities.


 


(b)           The
Buyer shall not be liable for any Loss or Losses (other than Losses resulting
from, arising out of, or incurred by the Seller Indemnitee in connection with,
or otherwise with respect to any Assumed Liability) (i) unless the claim
for such Loss or Losses is brought within the Applicable Survival Period, (ii) unless
and until the amount of Losses arising from any single event, or a series of
related events, exceeds $10,000 (the “Buyer  Covered Losses”) and (iii) unless and until the
aggregate amount of all Covered Losses incurred by the Buyer Indemnitees
exceeds 1% of the Cash Consideration (the “Buyer  Deductible”), and then only to the extent that such Buyer
Covered Losses exceed the Buyer Deductible; provided that, except as
provided in Section 8.3(c), the cumulative indemnification obligation of
the Buyer under this Article VIII shall in no event exceed 25% of the
amount of the Cash Consideration.


 


(c)           Notwithstanding
anything to the contrary set forth herein, no limitation on the indemnification
obligations set forth in this Section 8.3 shall apply to any breach of
representations or warranties made in Sections 4.1, 4.2 or 4.6; provided
that that the cumulative indemnification obligation of the Buyer under this Article VIII
(including any breach of representations or warranties made in Sections 4.1,
4.2 or 4.6) shall in no event exceed the amount of the Cash Consideration.


 


(d)           In
addition to the limitations set forth in Sections 8.3(b), the Buyer shall not
be obligated to indemnify the Seller Indemnitees with respect to (i) any
covenant or condition waived in writing by the Seller on or prior to the
Closing or (ii) any indirect, special, incidental, consequential or
punitive damages (except to the extent any of the foregoing damages are
included in an award to a third party or Governmental Entity).


 


(e)           The Seller acknowledges and agrees that, should the Closing occur, the
sole and exclusive remedy of the Seller Indemnitees with respect to any and all
matters arising out of, relating to or connected with this Agreement, the
Business, the Purchased Assets, the
Excluded Assets, the Assumed Liabilities or the Excluded Liabilities (other
than claims of, or causes of action arising from, fraud or actions for specific
performance or injunctive relief) shall be pursuant to the indemnification
provisions set forth in this Article VIII.


 


36





















 


8.4           Indemnification
Procedure for Third Party Claims.


 


(a)           In
the event that any claim or demand, or other circumstance or state of facts which
could give rise to any claim or demand, for which an Indemnitor may be liable
to an Indemnitee hereunder is asserted or sought to be collected by a third
party (a “Third Party Claim”), the Indemnitee
shall as soon as practicable notify the Indemnitor in writing of such Third
Party Claim (a “Notice of Claim”).  Failure or delay in notifying the Indemnitor
will not relieve the Indemnitor of any Liability it may have to the Indemnitee,
except and only to the extent that such failure or delay causes actual harm to
the Indemnitor with respect to such Third Party Claim.  The Notice of Claim shall (i) state that
the Indemnitee has paid, incurred or accrued Losses or anticipates that it will
incur liability for Losses for which such Indemnitee is entitled to indemnification
pursuant to this Agreement and (ii) specify in reasonable detail each
individual item of Loss included in the amount so stated, the date such item
was paid, incurred or accrued, the basis for any anticipated liability and the
nature of the misrepresentation, breach of warranty, breach of covenant, breach
of agreement or other claim to which each such item is related and the
computation of the amount to which such Indemnitee claims to be entitled
hereunder. The Indemnitee shall enclose with the Notice of Claim a copy of all
papers served with respect to such Third Party Claim, if any, and any other
documents evidencing such Third Party Claim.


 


(b)           The Indemnitor will
have 30 days from the date on which the Indemnitor received the Notice of Claim
to notify the Indemnitee that the Indemnitor desires to assume the defense or
prosecution of such Third Party Claim and any litigation resulting therefrom
with counsel of its choice and at its sole cost and expense (a “Third Party Defense”). 
If the Indemnitor assumes the Third
Party Defense in accordance herewith, (i) the Indemnitee may retain
separate co-counsel at its sole cost and expense and participate in the defense
of the Third Party Claim but the Indemnitor shall control the investigation,
defense and settlement thereof, (ii) the Indemnitee will not file any
papers or consent to the entry of any judgment or enter into any settlement
with respect to the Third Party Claim without the prior written consent of the
Indemnitor and (iii) the Indemnitor will not consent to the entry of any
judgment or enter into any settlement with respect to the Third Party Claim to
the extent such judgment or settlement provides for equitable relief without
the prior written consent of the Indemnitee or any monetary liability of the
Indemnitee that will not be paid or reimbursed by the Indemnitor (other than
the Deductible or the Buyer Deductible, as applicable).  The parties will use commercially reasonable
efforts to minimize Losses from Third Party Claims and will act in good faith
in responding to, defending against, settling or otherwise dealing with such
claims.  The parties will also cooperate
in any such defense and give each other reasonable access to all information
relevant thereto.  Whether or not the
Indemnitor has assumed the Third Party Defense, such Indemnitor will not be
obligated to indemnify the Indemnitee hereunder for any settlement entered into
or any judgment that was consented to without the Indemnitor’s prior written
consent.


 


37





















 


(c)           If the Indemnitor does not assume the Third Party Defense within 30 days
of receipt of the Notice of Claim, the Indemnitee will be entitled to assume
the Third Party Defense, at its sole cost and expense (or, if it is finally
determined that the Indemnitee incurred a Loss with respect to the matter in
question for which the Indemnitee is entitled to indemnification pursuant to Section 8.2
or 8.3, as applicable, at the expense of the Indemnitor) upon delivery of
notice to such effect to the Indemnitor; provided that the Indemnitor
shall have the right to participate in the Third Party Defense at its sole cost
and expense, but the Indemnitee shall control the investigation, defense and
settlement thereof.


 


(d)           To
the extent the Indemnitor or the Indemnitee elects or is entitled, as the case
may be, to direct, control or participate in the defense or settlement of any
Third Party Claim, the other party shall, subject to the receipt of a
reasonable confidentiality agreement, give to such controlling party and its
counsel reasonable access to, during normal business hours and upon reasonable
prior written notice, the relevant business records and other documents, and
shall permit them to consult with the employees and counsel of such other
party.


 


8.5           Indemnification
Procedures for Non-Third Party Claims. 
The Indemnitee will notify the
Indemnitor in writing promptly of its discovery of any matter with respect to
which indemnification may be sought pursuant to this Article VIII
that does not involve a Third Party Claim, such notice to contain the
information set forth in the following sentence.  Failure or delay in notifying the
Indemnitor will not relieve the Indemnitor of any Liability it may have to the
Indemnitee, except and only to the extent that such failure or delay causes
actual harm to the Indemnitor with respect to such claim.  The
Notice of Claim shall (i) state that the Indemnitee has paid,
incurred or accrued Losses or anticipates that it will incur liability for
Losses for which such Indemnitee is entitled to indemnification pursuant to
this Agreement, and (ii) specify in reasonable detail each individual item
of Loss included in the amount so stated, the date such item was paid, incurred
or accrued, the basis for any anticipated liability and the nature of the
misrepresentation, breach of warranty, breach of covenant, breach of agreement
or other claim to which each such item is related and the computation of the
amount to which such Indemnitee claims to be entitled hereunder.  In the event that the Indemnitor does not notify the Indemnitee that it accepts or disputes
such claim within 30 days from receipt of such Notice of Claim, the Indemnitor will
be deemed to have rejected such claim, in which event the Indemnitee will be
free to pursue such remedies as may be available to it under this Agreement.  


 


8.6           Calculation of Indemnity Payments.


 


(a)           The amount of Losses payable under this Article VIII
by the Indemnitor shall be reduced by any and all amounts recovered by
the Indemnitee under applicable insurance policies or from any other Person
alleged to be responsible therefor.  If
the Indemnitee receives any amounts under applicable insurance policies or from
any other Person alleged to be responsible for any Losses, subsequent to an
indemnification payment by the Indemnitor, then such Indemnitee shall (unless
such amounts were taken


 


38





















 


into account in calculating such Losses) promptly
reimburse the Indemnitor for any payment made or expense incurred by such
Indemnitor in connection with providing such indemnification up to the amount
received by the Indemnitee, net of any expenses incurred by such Indemnitee in
collecting such amount.


 


(b)           The amount of Losses incurred by an Indemnitee
shall be reduced to take account of any net Tax benefit actually realized by
the Indemnitee arising from the incurrence or payment of any such indemnified
amount.


 


(c)           Solely
for purposes of calculating the amount of Losses incurred arising out of or
relating to any breach of a representation or warranty (and not for purposes of
determining whether or not a breach has occurred), the references to “Material
Adverse Effect” or other materiality qualifications (or correlative terms),
including as expressed in accounting concepts, shall be disregarded. 


 


8.7           Characterization
of Indemnification Payments.  Except
as otherwise required by applicable law, the parties shall treat any
indemnification payment made hereunder as an adjustment to the Purchase Price. 


 


ARTICLE IX



MISCELLANEOUS


 


9.1           Notices.  Any notice, request, demand, waiver, consent,
approval or other communication which is required or permitted hereunder shall
be in writing and shall be deemed given: (a) on the date received if
personally delivered, (b) on the date delivered by a private courier as
established by evidence obtained from the courier, (c) on the date sent by
facsimile, with confirmation of transmission, if sent during normal business
hours of the recipient, if not, then on the next business day, or (d) upon
receipt if sent by certified or registered mail, return receipt requested,
postage prepaid.  Such communications, to
be valid, must be addressed as follows:


 


If to
the Buyer, to:


 


Bloch &
Guggenheimer, Inc.


c/o
B&G Foods, Inc.


Four
Gatehall Drive, Suite 110


Parsippany,
NJ 07054


Attn:   Scott
E. Lerner


Vice President and General Counsel


Facsimile:  973-630-6550


 


39





















 


With a
required copy to: 


 


Dechert
LLP


30
Rockefeller Plaza


New York,
NY 10112


Attn:  Glyndwr P. Lobo


Facsimile:  212-698-3599 


 


If to
the Seller, to:


 


Mott’s
LLP


c/o Dr
Pepper/Seven Up, Inc.


5301
Legacy Drive


Plano,
Texas 75024


Attn:
General Counsel


Facsimile:
972-673-8130


 


With a
required copy to:


 


Morgan,
Lewis & Bockius LLP


101
Park Avenue


New
York, New York 10178


Attn:  Charles Engros


Facsimile:  212-309-6001


 


or to such other address
or to the attention of such Person or Persons as the recipient party has
specified by prior written notice to the sending party (or in the case of
counsel, to such other readily ascertainable business address as such counsel
may hereafter maintain).  If more than
one method for sending notice as set forth above is used, the earliest notice
date established as set forth above shall control.


 


9.2           Amendments
and Waivers.


 


(a)           Any
provision of this Agreement may be amended or waived if, and only if, such
amendment or waiver is in writing and is signed, in the case of an amendment,
by each party to this Agreement, or in the case of a waiver, by the party
against whom the waiver is to be effective.


 


(b)           No
waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision hereof (whether or not similar), nor
shall such waiver constitute a continuing waiver unless otherwise expressly
provided.


 


(c)           No
failure or delay by any party in exercising any right or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise
thereof


 


40





















 


preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.


 


9.3           Expenses.  Except as otherwise provided in this
Agreement (including Section 5.8), each party shall bear its own costs and
expenses in connection with this Agreement, the Ancillary Agreements and the
transactions contemplated hereby and thereby, including all legal, accounting,
financial advisory, consulting and all other fees and expenses of third
parties, whether or not the transactions contemplated by this Agreement and the
Ancillary Agreements are consummated. 
Notwithstanding the foregoing, the Buyer shall be responsible for all
filing and other fees related to filing any assignment, registration or other
documentation for the transfer of the Business Intellectual Property.


 


9.4           Successors
and Assigns.  This Agreement may not
be assigned by either party hereto without the prior written consent of the
other party, except that the Buyer may, without receiving the prior written
consent of the Seller but subject to the Buyer providing written notice of such
assignment to the Seller, assign its rights or obligations hereunder in whole
or in part (i) to any of its Affiliates and (ii) through a collateral
assignment to any lender providing financing in connection with the
transactions contemplated by this Agreement, provided that, without the
prior written consent of the Seller, no such assignment shall release the Buyer
from its obligations hereunder.  Subject
to the foregoing, all of the terms and provisions of this Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
successors and assigns.


 


9.5           Governing
Law.  This Agreement and the exhibits
and schedules hereto shall be governed by and interpreted and enforced in
accordance with the Laws of the State of New York, without giving effect to any
choice of Law or conflict of Laws rules or provisions (whether of the
State of New York or any other jurisdiction) that would cause the application
of the Laws of any jurisdiction other than the State of New York.


 


9.6           Consent to Jurisdiction.  Each
party hereto irrevocably submits to the exclusive jurisdiction of any state or
federal court located within the County of New York in the State of
New York for the purposes of any suit, action or other proceeding arising
out of this Agreement or any transaction contemplated hereby, and agrees to
commence any such action, suit or proceeding only in such courts.  Each party further agrees that service of any
process, summons, notice or document by U.S. registered mail to such party’s
respective address set forth herein shall be effective service of process for
any such action, suit or proceeding. 
Each party irrevocably and unconditionally waives any objection to the
laying of venue of any action, suit or proceeding arising out of this Agreement
or the transactions contemplated hereby in such courts, and hereby irrevocably
and unconditionally waives and agrees not to plead or claim in any such court
that any such action, suit or proceeding brought in any such court has been
brought in an inconvenient forum. 
EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE)


 


41





















 


ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF SUCH PARTY IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.


 


9.7           Counterparts.  This Agreement may be executed in
counterparts, and any party hereto may execute any such counterpart, each of
which when executed and delivered shall be deemed to be an original and all of
which counterparts taken together shall constitute but one and the same instrument.  This Agreement shall become effective when
each party hereto shall have received a counterpart hereof signed by the other
party hereto. The parties agree that the delivery of this Agreement, and the
delivery of the Ancillary Agreements and any other agreements and documents at
the Closing, may be effected by means of an exchange of facsimile signatures.


 


9.8           No
Third Party Beneficiaries.  No
provision of this Agreement is intended to confer upon any Person other than
the parties hereto any rights or remedies hereunder; provided, that the
Buyer Indemnitees and Seller Indemnitees are intended third party beneficiaries
of Sections 8.2 and 8.3, respectively.


 


9.9           Entire
Agreement.  This Agreement, the
Ancillary Agreements, the Schedules and the other documents, instruments and
agreements specifically referred to herein or therein or delivered pursuant
hereto or thereto set forth the entire understanding of the parties hereto with
respect to the transactions contemplated by this Agreement. All Schedules
referred to herein are intended to be and hereby are specifically made a part
of this Agreement.  Any and all previous
agreements and understandings between or among the parties regarding the
subject matter hereof, whether written or oral, are superseded by this
Agreement, except for the Confidentiality Agreement which shall continue in
full force and effect in accordance with its terms.


 


9.10         Captions.  All captions contained in this Agreement are
for convenience of reference only, do not form a part of this Agreement and
shall not affect in any way the meaning or interpretation of this Agreement. 


 


9.11         Severability.  Any provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall be ineffective to the extent
of such invalidity or unenforceability without invalidating or rendering
unenforceable the remaining provisions hereof, and any such invalidity or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.


 


9.12         Interpretation.
The parties hereto have participated jointly in the negotiation and drafting of
this Agreement, and any rule of construction or interpretation otherwise
requiring this Agreement to be construed or interpreted against any party by
virtue of the authorship of this Agreement shall not apply to the construction
and interpretation hereof.


 


[REMAINDER OF PAGE INTENTIONALLY
LEFT BLANK]


 


42





















 


IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed by their respective authorized officers as
of the date first above written.


 


	
  SELLER:

  
	
   

  
	
  MOTT’S LLP

  
	
   

  
	
   

  
	
  By:

  	
  /s/ David A.
  Gerics

  	
   

  
	
  Name: David A.
  Gerics

  
	
  Title: Senior Vice President

  
	
   

  
	
  BUYER:

  
	
   

  
	
  BLOCH & GUGGENHEIMER, INC.

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Robert C.
  Cantwell

  	
   

  
	
  Name: Robert C.
  Cantwell

  
	
  Title: Executive
  Vice President of Finance

  
				



 


 


[Signature Page to Asset Purchase Agreement]