Stock Purchase Agreement - Stephan S. Buckley and Butterwings Inc.
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is made and entered into this
18th day of October, 1996, by and between Stephan S. Buckley ("Seller"), sole
common stock shareholder of Cookie Crumbs, Inc., an Illinois corporation
("Company") and Butterwings, Inc. ("Purchaser").
RECITALS
WHEREAS, the Company owns and operates Mrs. Field's Cookie Stores at
various locations, and has certain rights to develop various geographic
territories for Mrs. Field's Development Corporation ("Mrs. Field's"); and,
WHEREAS, Seller owns of record and beneficially 1,000 shares of the common
stock, no par value (the " Stock") of the Company, which constitutes one hundred
percent (100%) of the common stock of the Company; and,
WHEREAS, Seller desires to sell, assign, transfer and deliver to Purchaser,
and Purchaser desires to purchase one hundred percent (100%) of the common stock
of the Company (the "Shares") on the terms and subject to the conditions
hereinafter contained,
NOW THEREFORE, in consideration of the mutual covenants, promises,
agreements, representations and warranties contained herein and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto do hereby covenant, promise, agree, represent
and warrant as follows:
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1. Definitions. In addition to the terms otherwise defined herein, in
construing this Agreement, the following terms shall have the following
meanings:
1.1 "Agreement" shall mean this Stock Purchase Agreement dated
October 18, 1996, by and amongst Seller and Purchaser.
1.2 "Closing" shall mean the consummation of the transactions
contemplated hereby as set forth in Section 11 hereof.
1.3 "Closing Date" shall mean the date of Closing as set forth in
Section 14 hereof.
1.4 "Closing Date Assets" shall mean the assets of the Company as of
the Closing Date and properly includable on the Closing Date
Balance Sheet under the captions "Cash"; "Accounts Receivable";
"Inventories"; "Due From Affiliates"; "Assets Available for
Sale"; "Equipment"; "Deferred Income Taxes"; "Leasehold
Improvements"; "Franchise Costs"; "Goodwill"; "Organization
Costs"; and "Deposits".
1.5 "Closing Date Balance Sheet" shall mean the balance sheet to be
prepared by the Seller containing a statement of Closing Date
Assets and Closing Date Liabilities as of Closing Date to be
delivered to Purchaser at Closing as Exhibit K. The Closing Date
Balance Sheet shall be prepared in accordance with generally
accepted accounting principles applied on a year end basis
consistent in form with the Balance Sheet of Company as of
December 31, 1995, attached hereto as a part of Exhibit B.
1.6 "Closing Date Liabilities" shall mean the book value, as of the
Closing Date, of the liabilities properly includable in the
Closing Date Balance Sheet under the captions "Accounts Payable",
"Income Taxes Payable"; "Accrued Liabilities"; "Advances From
Affiliates"; "Current Maturities of Capital Lease Obligations";
"Capital Lease Obligations" and "Redeemable Preferred Stock".
1.7 "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
1.8 "Financial Statements" shall mean Company's financial statements
as of December 31, 1995, attached hereto as Exhibit B, prepared
in accordance with generally accepted accounting principles,
consistent when applied, that present a true and accurate
statement of Company's financial condition for the periods
covered therein.
2. Purchase and Sale of the Shares.
2.1 Current Ownership. As of the Closing Date, Seller shall own of
record and beneficially such shares of Stock as is set for as
follows: Stock Seller Certificate No. No. of Shares Stephan S.
Buckley 001 1,000
A copy of said stock certificate is attached hereto as Exhibit A.
2.2 Transfer of Stock. On the Closing Date, and subject to the terms
and conditions set forth in this Agreement, Seller shall sell,
assign, transfer and deliver to Purchaser, and Purchaser shall
purchase from Seller, free and clear of all liens, charges,
encumbrances, equities, claims and options of any kind
whatsoever, one hundred percent (100%) of the issued and
outstanding common stock of Company as of the Closing. Seller
shall then deliver his certificates to the Company and the
parties shall cause the Company to issue replacement certificates
of Stock to Purchaser and cancel all certificates previously
issued to Seller. Thereafter, ownership of the Stock of Company
shall be as follows:
Stock
Name Certificate No. No. of Shares
Butterwings, Inc. 002 1,000
3. Purchase Price and Terms. In consideration of Seller's obligations
hereunder, Purchaser shall pay to Seller the aggregate sum of One Dollar and No
Cents ($1.00), ("Purchase Price") payable in cash at Closing.
4. Representation and Warranties of Seller. Seller represents and warrants
to Purchaser that:
4.1 Title and Authority. The Seller is the unqualified and
unconditional owner of the number of shares of the Company shown
opposite his respective name in Section 2 hereof, and has the
full right and authority to sell and transfer all such shares to
the Company at the Closing Date, as herein provided, free and
clear of any lien, encumbrance, equity or claim of any kind.
4.2 Organization; Good Standing; Authority of Company. The Company is
a corporation duly organized, validly existing as a stock
corporation, and in good standing under the laws of the State of
Illinois and has full right, power, and authority to own its
properties and assets, and to carry on its business. A complete
and correct copy of each of Company's Articles of Incorporation,
and By-Laws, as amended to the date of this Agreement, and the
minute books of the Company containing the minutes of meetings of
the stockholders of Company and the board of directors of
Company, are attached hereto as Exhibit D, and are complete and
correct and accurately reflect all proceedings of the Company.
The Articles and By-Laws are in full force and effect, and
Company is not in breach or violation of any of the provisions
thereof.
4.3 Validity of Agreement. The Seller has the legal capacity and
authority to enter into this Agreement, and all corporate and
other proceedings required to be taken by and/or on behalf of the
Company to authorize and to carry out the transactions
contemplated by this Agreement have been duly and properly taken.
This Agreement is a valid and legally binding obligation of
Seller and is fully enforceable against Seller in accordance with
its terms.
4.4 Capitalization; Company Stock; Related Matters. The authorized,
issued and outstanding capital stock of the Company (prior to the
changes described in Section 2.2 hereof) is as follows:
Shares Shares Issued
Class Authorized and Outstanding
Common 1,000 10,000
Preferred 100,000 16,650
Except as set forth above, there are no other classes or types of
capital stock. All of the issued and outstanding shares of
capital stock of the Company are duly authorized, validly issued,
fully paid and non-assessable, none of the shares was issued in
violation of the preemptive rights of any shareholder of the
Company. There are no outstanding subscriptions, warrants,
options, or rights requiring the issuance of any additional
shares of capital stock of the Company. All of the outstanding
issued shares have been issued in full compliance with all
applicable laws of the State of Illinois and with the Securities
Exchange Commission, as applicable. Delivery of Seller's Stock by
Seller to Purchaser at Closing pursuant to this Agreement will
transfer to Purchaser full and entire legal and equitable title
to 100% of the issued and outstanding common stock of Company.
4.5 Options, Warrants and Other Rights and Agreements Affecting
Company Stock. Company has no authorized or outstanding options,
warrants, calls, subscriptions, rights, convertible securities or
other securities [as defined in the Federal Securities Act of
1933 ("Securities")] or any commitments, agreements, arrangements
or understandings of any kind or nature obligating Company, in
any such case, to issue shares of Company common stock or other
Securities or securities convertible into or evidencing the right
to purchase shares of Company capital stock or other Securities.
Neither Seller nor Company is a party of any agreement,
understanding, arrangement or commitment, or bound by any
Articles or By-Law provision which creates any rights in any
person with respect to the authorization, issuance, voting, sale
or transfer of any shares of Company's Stock or other Securities.
4.6 No Subsidiaries. Company does not have any subsidiaries and does
not, directly or indirectly, own any interest in or control any
corporation, partnership, joint venture, or other business
entity.
4.7 Agreement Not in Conflict With Other Instruments. Required
Approvals Obtained. The execution, acknowledgement, sealing,
delivery, and performance of this Agreement by Seller and the
consummation of the transactions contemplated by this Agreement
will not:
(a) violate or require any registration, qualification, consent,
approval, declaration, reporting or filing under (i) any
law, statue, ordinance, rule or regulation (hereinafter
collectively referred to as "Laws") of any federal, state or
local government or governmental agency ("Governmental
Entities"), (ii) any judgment, injunction order, writ or
decree of any court, arbitrator, or Governmental Entities
applicable to Seller or Company or any of their assets or
properties ; or
(b) conflict with, require any consent, approval, authorization
or filing under, result in the breach or termination of any
provision of, constitute a default under, result in the
acceleration of the performance of Seller's or Company's
obligations under, or result in the creation of any claim,
security interest, lien charge, or encumbrance upon any of
Seller's or Company's properties, assets, or businesses
pursuant to (i) Company's Articles or By-Laws, or (ii) any
indenture, mortgage, deed of trust, license, permit,
approval, consent, franchise, lease, contract, or other
instrument or agreement to which Seller or Company is a
party or by which Seller or Company or any of Company's
assets or properties is bound.
4.8 Conduct of Business in Compliance With Regulatory and Contractual
Requirements. Company has conducted and is conducting its
business in compliance with all Laws. Neither the real or
personal properties owned, leased, operated or occupied by
Company, nor the use, operation or maintenance thereof (i)
violates any Laws of any Governmental Entities, or (ii) violates
any restrictive or similar covenant, agreement, commitment,
understanding or arrangement.
4.9 Licenses; Permits; Related Approvals. Company possesses all
licenses, permits, consents, approvals, authorizations,
qualifications and orders (hereinafter "Permits") of all
Governmental Entities, including the State of Illinois, lawfully
required to enable Company to conduct its business. A true,
accurate and complete list of the Permits is attached hereto as
Exhibit E.
4.10 Legal Proceedings. Except as disclosed in Exhibit C attached
hereto, there is not and there will not be any action, suit,
proceeding, claim, arbitration, or investigation by any
Governmental Entities or other person (i) to which Company is or
may be a party relating to the activities of the Company prior to
the Closing Date, (ii) threatened against or relating to Company
or any of Company's assets or businesses, (iii) challenging
Company's right to execute, acknowledge, seal, deliver, perform
under or consummate the transactions contemplated by this
Agreement, or (iv) asserting any rights with respect to any of
the Seller's Stock, and there is no basis for any such action,
suit, proceeding, claim, arbitration or investigation.
4.11 Tax Matters. Company has duly and timely filed with all
appropriate Governmental Entities, all tax returns, information
returns, and reports required to be filed by Company. Company has
paid in full all taxes (including taxes withheld from employees'
salaries and other withholding taxes and obligations), interest,
penalties, assessments and deficiencies owed by Company to all
taxing authorities. The Company does not have any liability or
obligation for any taxes relating to operations during the
periods for which tax returns have been filed, and the Company
has no liability or obligation for any taxes due for operations
during the current period prior to the Closing Date, unless such
taxes shall have been fully and separately reserved in the
Closing Date Liabilities.
4.12 Closing Date Assets. Attached hereto as Exhibit F is a true,
correct and complete list of all personal property, owned by
Company or used by Company in the conduct of its business,
including, but not limited to, all equipment, machinery and
fixtures (whether or not included in the Financial Statements)
("Personal Property"), which Personal Property is included within
the Closing Date Assets. Company has sole and exclusive, good and
merchantable title to all of the Closing Date Assets, free and
clear of all pledges, claims, liens, restrictions, security
interests, charges and other encumbrances (except liens created
by this Agreement), unless otherwise disclosed on Exhibit F. Each
of the items of Personal Property is in good repair and good
operating condition, fit for its intended purposes, and is
adequate for the continuation of Company's business. Inventories
included within the Closing Date Assets shall consist of bona
fide and current raw materials, work in process and finished
goods which are fit for sale and not obsolete. Purchaser's
consent to the inclusion of Inventories on the Closing Date
Balance Sheet shall conclusively establish that such Inventories
are fit for sale and not obsolete.
4.13 Leases and Other Agreements. Attached hereto and incorporated by
reference herein as Exhibit G is a true, correct and complete
list and copy (or where they are oral, true, correct and complete
written summaries) of all leases of Company relating to real and
personal property. Also included on said Exhibit is a list of any
other agreement to which Company is a party. Each of the
agreements, arrangements and understandings so listed is in full
force and effect, is valid and binding upon each of the parties
hereto and is fully enforceable by Company against the other
party thereto in accordance with its terms.
4.14 Employment Contracts. Exhibit H to this Agreement is a list of
all employment contracts and collective bargaining agreements,
and all pension, bonus, profit-sharing, stock option, or other
agreements or arrangements providing for employee remuneration or
benefits to which Company is a party or by which Company is
bound; all these contracts and arrangements are in full force and
effect, and neither Company nor any other party is in default
under them. There have been no claims or defaults and, to the
best knowledge of Seller, there are no facts or conditions which
if continued, or on notice, will result in a default under these
contracts or arrangements. There is no pending or, to selling
parties' knowledge, threatened labor dispute, strike, or work
stoppage affecting Company's business. Except as set forth on
Exhibit H, the Company has no outstanding employment agreement or
any incentive compensation, deferred compensation, profit
sharing, stock option, stock bonus, stock purchase, savings,
consultant, retirement, pension or other "fringe benefit" plan or
arrangement with or for the benefit of any officer, general
manager, key employee or other person. Exhibit K sets forth a
true, correct and complete list of all the "employee benefit
plans" as that term is defined in Section 3(3) of ERISA that are
maintained or contributed to by the Company. None of the employee
benefit plans are "multi-employer plans" as that term is defined
in Section 3(37) of ERISA. A copy of all employee benefit plans
has been provided by Seller to Purchaser. There are no unexempt
"prohibited transactions" as that term is defined in Section 4975
of the Internal Revenue code of 1986, as amended ("Code") or
Section 406 of ERISA with respect to any of the employee benefit
plans. Each employee benefit plan has been administered in
compliance with the applicable requirements of ERISA and the
Code. There is no pending or, to the best of Seller's knowledge,
threatened legal action, proceeding, or investigation against any
employee benefit plan that could result in material liability to
the Company, and there is no basis for any such legal action,
proceeding or investigation.
4.15 Insurance Policies. Exhibit I to this Agreement is a description
of all insurance policies held by Company concerning its business
and properties for the year of initiation of coverage through the
Closing Date (the "Insurance Policies"). All Insurance Policies
are in the respective principal amounts set forth in said
Exhibit. Company has maintained and now maintains (i) insurance
on all its assets and businesses of a type customarily insured,
covering property damage and loss of income by fire or other
casualty, and (ii) adequate insurance protection against all
liabilities, claims, and risks against which is customary to
insure. Premiums with respect to the Insurance Policies have been
fully prepaid through the Closing Date.
4.16 Bank Accounts and Safe Deposit Arrangements. Attached hereto as
Exhibit J and incorporated by reference herein is a true, correct
and complete list of each checking account, savings account and
other bank account and safe deposit box (the "Accounts")
maintained by Company, and the names of all persons authorized to
withdraw funds or other property from, or otherwise deal with,
the Accounts. At Closing, Seller will cause the Company to
execute documents necessary to change authorized signatories to
those persons designated by Purchaser. At Closing, the Company
shall cancel all existing lines of credit and Seller shall be
removed from any obligations for vendor credit arising after the
Closing Date. Seller represents that Company has no existing line
of credit as of the Closing Date.
4.17 Absence of Certain Changes. Since the date of the Company's
Financial Statements attached hereto as Exhibit B, without the
consent of Purchaser, the Company has not:
(a) Issued, sold, purchased, or redeemed or agreed to issue,
sell, purchase or redeem any of the capital stock reserved
for issuance as reflected in the Financial Statements;
sub-divided or in any way re-classified any of its capital
stock; declared or made any payment, dividend, or other
distribution to its Seller; or granted any option or made
any commitment relating to its authorized capital stock;
(b) Incurred any liability under agreements or otherwise, except
(1) liabilities incurred, and obligations entered into, in
the ordinary course of business, which individually or in
the aggregate do not have any materially adverse effect on
the financial or other condition, business, prospects,
assets, or good will of the Company; and (2) obligations or
liabilities entered into or incurred in connection with the
execution and performance of this Agreement.
(c) Discharged or satisfied or agreed to discharge or satisfy
any lien, charge or encumbrance, or paid or agreed to pay
any obligation or liability, absolute, accrued, contingent,
or otherwise, whether due or to become due, except
obligations or liabilities arising under the ordinary course
of business, which individually or in the aggregate do not
have a materially adverse affect on the financial or other
condition, business, prospects, assets or goodwill of the
Company;
(d) Except in the ordinary course of business (1) sold or
transferred or entered into any agreement relating to the
sale or transfer of any tangible or intangible assets; or
(2) entered into any lease of real property, machinery,
equipment or buildings;
(e) Suffered any material loss or damage to any of its
properties (whether or not covered by insurance);
(f) Entered into or agreed to enter into any transaction other
than in the ordinary course of business, except in
connection with the execution and performance of this
Agreement and except transactions disclosed in or permitted
by this Agreement;
(g) Caused or permitted any of its current insurance contracts
to be canceled or terminated or any of the coverage
thereunder to lapse, unless simultaneously with that
cancellation, termination, or lapse, replacement policies
providing coverage equal to or greater than the coverage
under the canceled, terminated or lapsed policy with
substantially similar premiums are in full force and effect.
4.18 Environmental Health and Safety Matters.
(a) The Company has duly complied with, and all real property
owned by the Company is in compliance with the provisions of
all federal, state, and local environmental, health and
safety laws, codes and ordinances, and all rules and
regulations promulgated thereunder.
(b) The Company has received no notice of, and neither knows of
nor suspects, any fact that might constitute a violation of
any federal, state, or local environmental, health or safety
laws, codes, or ordinances, and any rules or regulations
promulgated thereunder that relate to the history, use,
ownership, or occupancy of all real property owned by the
Company, and the Company is not in violation of any
covenants, conditions, easements, rights of way, or
restrictions affecting all real property owned by the
Company or any rights appurtenant thereto.
4.19 Advertising. To the best of Seller's knowledge, neither any
advertising by Company for the products, nor any promotional
materials used by the Company at any time contains any untrue
material or misleading statements or claims.
4.20 Disclosure. Seller has disclosed to Purchaser in this Agreement
all material facts related to the transactions contemplated by
this Agreement. No representation or warranty of the Seller
contained in this Agreement or other agreements and instrument
referred to in this Agreement, and no statement contained in any
certificate, schedule, list or other writing furnished to
Purchaser pursuant to the provisions of this Agreement contains
any untrue statement of a material fact, or omits to state a
material fact necessary in order to make the statements herein or
therein not misleading.
5. Representations and Warranties of Purchaser. Purchaser represents and
warrants to Seller that:
5.1 Investment Interest. Purchaser acknowledges that the sale of the
Common Stock to Purchaser has not been registered under the
Securities Act of 1933, as amended, or any other securities laws,
that all the Stock acquired by Purchaser under this Agreement
shall be acquired for investment solely for the account of
Purchaser and with no view to making any distribution, or record
or beneficially, of the Stock, and that the certificates
representing the Stock when delivered by Seller at Closing as
well as the certificates representing the Stock if and when
transferred of record to Purchaser may bear a restrictive legend,
in form and substance satisfactory to the Company, to the effect
that the Stock has not been registered with the Securities
Exchange Commission and may need to be registered under
applicable federal and state securities laws prior to transfer
unless subject to an exemption from such registration
requirement.
5.2 Rights of Purchaser. Purchaser has all requisite power, right and
authority to enter into this Agreement and to perform the
obligations of Purchaser under this Agreement.
6. Additional Documents.
6.1 Landlord and Lessor Consent. At Closing, Seller shall provide
Purchaser with a form of consent duly executed by each Landlord
or Lessor identified in Exhibit G by which such Landlord or
Lessor consents to this Agreement and acknowledges that neither
this Agreement nor any transaction contemplated thereby
constitutes a default under the terms of such lease.
6.2 Closing Date Balance Sheet. Prior to Closing, Seller shall
prepare the Closing Date Balance Sheet, which shall be
incorporated into this Agreement at Closing as Exhibit K.
7. Seller's Contingencies.
7.1 Compliance by Purchaser. All of the terms and conditions of this
Agreement to be complied with or performed by Purchaser shall be
complied with and performed in all material respects and the
covenants, representations and warranties made by the Purchaser
in this Agreement shall be true and correct in all material
respects at and as of the Closing Date with the same force and
effect as those such covenants, representations and warranties
have been made at and as of the Closing Date except for changes
contemplated by this Agreement.
8. Purchaser's Contingencies. The transaction herein contemplated is
expressly subject to the satisfaction, within ten (10) days following Closing,
of the following described conditions. The failure of any condition to be
satisfied within ten (10) days following Closing shall, at Purchaser's option,
render this Agreement null and void, and all money or documents previously
delivered shall be returned to their original owner, and all parties shall be
relieved of all liabilities hereunder.
8.1 Compliance by the Company and Seller. All of the terms and
conditions of this Agreement to be complied with and performed by
the Seller or on behalf of the Company at or before the Closing
shall have been complied with and performed in all material
respects, and the representations, warranties, covenants, and
agreements made by the Seller, or on behalf of the Company in
this Agreement shall be true and correct in all material respects
at and as of the Closing Date with the same force and effect as
if those such representations, warranties, covenants, and
agreements were made at and as of the Closing Date except for
changes contemplated by this Agreement.
8.2 Closing Date Balance Sheet. Within ten (10) days of the Closing
Date, the Closing Date Balance Sheet shall have been prepared by
Seller and approved by Purchaser.
9. Indemnification.
9.1 Survival of Representations and Warranties. All representations,
warranties, covenants and agreements made by either party to this
Agreement shall survive the Closing and shall remain in effect
for a period of two (2) years.
9.2 Indemnification by Purchaser. Purchaser hereby agrees to
indemnify and hold Seller harmless from, against and in respect
of:
(a) Any and all debts, liabilities or obligations of Company,
direct or indirect, fixed, continued or otherwise accruing
after the Closing Date except to the extent related to a
breach by Seller of the covenants and warranties provided in
this Agreement;
(b) Any and all loss, liability, deficiency, or damage suffered
or incurred by Seller resulting from any untrue
representation, breach of warranty, or non-fulfillment of
any covenant or agreement by Purchaser contained in this
Agreement, or any certificate, document, or instrument
delivered to Seller pursuant hereto or in connection
herewith;
(c) Any and all loss, liability, deficiency, or damage suffered
or incurred by Seller as a result of Purchaser's failures to
discharge the Closing Date Liabilities;
(d) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs, and expenses, including,
without limitation, legal fees and expenses, incident to any
of the foregoing or incurred in enforcing this indemnity.
9.3 Indemnification by Seller. Seller indemnifies and agrees to hold
Purchaser harmless from, against, and in respect of the following:
(a) Any and all debts, liabilities, or obligations of Seller or
Company, direct or indirect, fixed, contingent or otherwise
existing before the Closing Date, including, but not limited
to, any liabilities arising out of any act, transaction,
circumstances, state of facts, or violation of law that
occurred or existed before the Closing Date, whether or not
then known, due, or payable and irrespective of whether the
existence thereof is disclosed to Purchaser in this
Agreement or any schedule hereto, except with regard to the
Closing Date Liabilities;
(b) Any and all loss, liability, deficiency, or damage suffered
or incurred by Purchaser as a result of default by Seller or
Company existing on the Closing Date or any event of default
occurring prior to the Closing Date that with the passage of
time would constitute a default, under any actual obligation
of Company assumed by Purchaser under this Agreement;
(c) Any and all loss, liability, deficiency, or damage suffered
or incurred by Purchaser by reason of any untrue
representation, breach of warranty, or non-fulfillment of
any covenant or agreement by Seller contained in this
Agreement, or in any certificate, document, or instrument
delivered to Purchaser hereunder or in connection herewith;
(d) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs, and expenses, including,
without limitation, legal fees and expenses, incident to any
of the foregoing or incurred in enforcing this indemnity.
10. Employees. Seller shall be solely responsible and Purchaser shall have
no obligations whatsoever, for any compensation or other amounts payable to any
employee, director, consultant or independent contractor of Company, including,
but not limited to bonus, salary, compensation, accrued vacation, fringe,
pension or profit sharing benefits, or severance paid or payable to any
employee, director, consultant or independent contractor of Company relating to
service with or for the Company at any time prior to the Closing Date unless
such amount is included in the Closing Date Liabilities.
11. Obligations at Closing.
11.1 Execution and Delivery of Documents. At Closing, Seller and
Purchaser and Company shall execute and deliver all
documents referenced in or contemplated by this Agreement,
and such other documents as may be necessary to effect the
transaction contemplated by this Agreement as of the Closing
Date.
11.2 Resignations of Officers and Directors. Seller shall cause
Company to provide for the resignation of each of the
Officers and Directors at Closing and shall deliver to
Purchaser such resignations at Closing.
11.3 Payment of Purchase Price. Purchaser shall pay to Seller the
Purchase Price in Cash.
11.4 Delivery and Reissuance of Stock. Seller shall take all
action and execute all documents necessary to convey and
reissue the Stock as provided in Section 2.2 hereof.
11.5 Transfer of Accounts. Seller will cause the Company to
execute documents necessary to change authorized signatories
on the Accounts to those persons designated by Purchaser.
11.6 Representations and Warranties. As of Closing each party,
respectively, without executing any additional instrument,
shall be deemed to represent and warrant to and covenant
with the other as to the accuracy of each of the
representations and warranties as stated in Section 4,
hereof, regarding Seller, and Section 5, hereof, regarding
Purchaser.
12. Obligations After Closing.
12.1 Further Assurances. Subsequent to the Closing, Seller,
Purchaser and Company shall execute and deliver such other
instruments and take all such other action as either party
may reasonably request from time to time, in order to effect
the transaction provided for herein. The parties shall
cooperate with each other in connection with any steps to be
taken as a part of their respective obligations under this
Agreement.
13. General Provisions.
13.1 Notices. All notices, requests, demands, consents, and other
communications which are required or may be given under this
Agreement (hereinafter "Notices") shall be in writing and
shall be given either (a) by personal delivery, (b) by
registered or certified mail, return receipt requested, or
(c) by delivery utilizing a nationally recognized overnight
mail service, to the following addresses:
(a) If to Seller: Stephan S. Buckley
2345 Pembroke Avenue
Hoffman Estates, IL 60195
(b) If to Purchaser: Butterwings, Inc.
2345 Pembroke Ave.
Hoffman Estates, IL 60195
Attn: Kenneth B. Drost
or to such other address of which written notice in
accordance with this paragraph. Notices shall be effective
upon receipt, and any written acknowledgement demonstrating
delivery as addressed shall be prima facie evidence of
receipt.
13.2 Entire Agreement; Amendments. This Agreement and the
amendments, instruments, schedules and other writings
referred to in this Agreement contain the entire
understanding of the parties with respect to the subject
matter of this Agreement. There are no restrictions,
agreements, promises, warranties, covenants, or other
undertakings other than those expressly set forth herein or
therein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to its
subject matter. This Agreement may be amended only by a
written instrument duly executed by all the parties or their
successors or assigns.
13.3 Binding Effect; Benefit. This Agreement will be binding
upon, and inured to the benefit of and be enforceable by and
against the respective successors and assigns of the parties
hereto and shall not be assigned by Purchaser without the
express written consent of Seller.
13.4 Severability. If any term, condition, or provision of this
Agreement shall be declared invalid or unenforceable, the
remainder of the Agreement, other than such term, condition
or provision, shall not be affected thereby and shall remain
in full force and effect and shall be valid and enforceable
to the fullest extent permitted by law.
13.5 No Waiver. No waiver of any breach or default hereunder
shall be considered valid unless in writing and signed by
the party giving such waiver, and no such waiver shall be
deemed a waiver of any subsequent breach or default of the
same or of a similar nature. No provision of this Agreement
may be amended, waived, or otherwise modified without the
prior written consent of all of the parties hereto.
13.6 Section Headings. The section and other headings contained
in this Agreement are for reference purposes only and shall
not affect the meaning or interpretation of this Agreement.
13.7 Applicable Law Jurisdiction and Venue; Costs and Attorneys'
Fees. This Agreement is made and entered into, and shall be
governed by and construed in accordance with, the laws of
the State of Illinois applicable to contracts made and to be
performed therein. Any litigation relating in any manner to
this Agreement or the transactions contemplated thereby
shall be commenced only in State or Federal courts having
their situs in Illinois, and each party irrevocably consents
to the jurisdiction and venue of such courts. In any action
to enforce or interpret this Agreement and any appeal or
enforcement of a judgment rendered in such action, the
prevailing party shall be entitled to recover its costs and
attorneys' fees, which shall be included in any judgment or
award rendered therein.
13.8 Right to Counsel. Purchaser and Seller hereby acknowledge
that they have each had this document reviewed by counsel of
their choice, so that this document shall not be construed
more strictly against one party than the other.
13.9 Costs and Expenses. Unless otherwise provided herein, each
party hereto shall respectively pay its own costs, fees, and
expenses incurred in connection with the negotiation,
preparation of, and performance under this Agreement, and
all matters incident thereto.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
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14. Closing Date.
The Closing of this transaction shall take place at 10:00 a.m. at the
offices of Purchaser on or before October 18, 1996, or on such other date as to
which Purchaser and Seller shall agree in writing.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
on the date first above written.
SELLER: PURCHASER:
BUTTERWINGS, INC.
By: By:
Stephan S. Buckley Kenneth B. Drost, Vice President
<PAGE>
EXHIBITS
Stock Certificates A
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Financial Statements B
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Litigation C
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Corporate Records D
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Permits E
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Personal Property F
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Leases and Other Agreements G
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Employment Contracts H
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Insurance Policies I
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Bank Accounts/Deposits J
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Closing Date Balance Sheet K
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