EXHIBIT 10.26
January 24, 2005
Value Creation Partners Inc.
Best Brands Corp.
IMCB Corp.
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▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: G. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Ladies and Gentlemen:
Reference is hereby made to that certain Purchase Agreement, dated as of
January 13, 2005, by and among Value Creation Partners Inc., Best Brands Corp.,
IMCB Corp., International Multifoods Corporation, The ▇. ▇. ▇▇▇▇▇▇▇ Company,
▇▇▇▇▇ ▇▇▇▇ Multifoods Corporation, Fantasia Confections, Inc., and Multifoods
Brands Inc. (the "Purchase Agreement"; each capitalized term used but not
defined herein shall have the meaning assigned to it in the Purchase Agreement).
Section 6.18(a) of the Purchase Agreement is hereby amended as follows:
the words "no earlier than January 20, 2005 and no later than January 24, 2005"
in such Section 6.18(a) are hereby deemed to be deleted therefrom and replaced
by the words "no earlier than January 26, 2005 and no later than January 28,
2005". Except as amended by the foregoing, the Purchase Agreement and each
provision thereof shall remain in full force and effect. Each reference to the
Purchase Agreement in any document or instrument delivered pursuant to or in
connection with the Purchase Agreement shall be deemed to be a reference to the
Purchase Agreement, as amended by this letter agreement. This letter agreement
may be executed by facsimile and in counterparts, each of which will be deemed
an original, but all of which, taken together, constitute one and the same
agreement. This letter agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota, without regard to
conflicts-of-law principles. If you are in agreement with the foregoing, please
execute this letter agreement in the spaces provided below.
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Value Creation Partners Inc.
January 24, 2005
Sincerely,
The ▇. ▇. ▇▇▇▇▇▇▇ Company
By: /s/ ▇.▇. ▇▇▇▇▇▇▇
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Its: President and Co-CEO
International Multifoods Corporation
By: /s/ ▇.▇. ▇▇▇▇▇▇▇
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Its: President, Co-CEO, and CFO
▇▇▇▇▇ ▇▇▇▇ Multifoods Corporation
By: /s/ ▇.▇. ▇▇▇▇▇▇▇
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Its: Vice President
Fantasia Confections, Inc.
By: /s/ ▇.▇. ▇▇▇▇▇▇▇
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Its: President, Co-CEO, and CFO
Multifoods Brands, Inc.
By: /s/ ▇.▇. ▇▇▇▇▇▇▇
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Its: President, Co-CEO, and CFO
Acknowledged and Agreed:
Value Creation Partners Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Its: EVP
Best Brands Corp.
By: /s/ G. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Its: President and CEO
IMCB Corp.
By: /s/ G. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Its: President and CEO
AMENDMENT TO PURCHASE AGREEMENT
THIS AMENDMENT TO PURCHASE AGREEMENT (this "Amendment") is entered into as
of the 18th day of February, 2005, by and among INTERNATIONAL MULTIFOODS
CORPORATION, a corporation organized under the laws of Delaware ("IMC"),
MULTIFOODS BRANDS, INC., a corporation organized under the laws of Delaware
("MBI"), FANTASIA CONFECTIONS, INC., a corporation organized under the laws of
California ("FCI"; IMC, MBI and FCI are sometimes hereinafter referred to
individually as a "U.S. Seller" and collectively as the "U.S. Sellers"), ▇▇▇▇▇▇▇
FOODS OF CANADA CO. (FORMERLY KNOWN AS ▇▇▇▇▇ ▇▇▇▇ MULTIFOODS CORPORATION), an
unlimited company amalgamated under the laws of Nova Scotia ("▇▇▇▇▇ ▇▇▇▇"; the
U.S. Sellers and ▇▇▇▇▇ ▇▇▇▇ are sometimes hereinafter referred to individually
as a "Seller" and collectively as the "Sellers"), THE ▇. ▇. ▇▇▇▇▇▇▇ COMPANY, a
corporation organized under the laws of Ohio ("▇▇▇▇▇▇▇"), VALUE CREATION
PARTNERS INC., a corporation organized under the laws of Delaware ("VCP"), BEST
BRANDS CORP., a corporation organized under the laws of Delaware ("BBC"), and
IMCB CORP., a corporation organized under the laws of Delaware (hereinafter
referred to as "Buyer"; VCP, BBC and Buyer are sometimes hereinafter referred to
individually as a "Buyer Entity" and collectively as the "Buyer Entities") and a
wholly-owned subsidiary of VCP.
WHEREAS, Sellers, ▇▇▇▇▇▇▇ and the Buyer Entities entered into that certain
Purchase Agreement dated as of January 13, 2005 (as amended by the letter
agreement referred to below, the "Agreement"); and
WHEREAS, Seller, ▇▇▇▇▇▇▇ and the Buyer Entities entered into that certain
letter agreement dated as of January 24, 2005 that amended the Agreement; and
WHEREAS, Seller, ▇▇▇▇▇▇▇ and the Buyer Entities desire to further amend
the Agreement;
NOW, THEREFORE, in consideration of the parties' undertakings and
covenants herein and in the Agreement, and other good and valuable consideration
(the receipt and sufficiency of which are hereby acknowledged by each party),
the parties hereby agree as follows:
1. Unless otherwise defined herein, each capitalized term used herein
shall have the meaning (if any) provided therefor in the Agreement.
2. Section 2.03 of the Agreement is hereby amended to read in its entirety
as follows:
"The following prorations relating to the Assets will be made as of the
Closing Date, with the U.S. Sellers liable to the extent such items relate
to any time period up to and including the Closing Date and Buyer liable
to the extent that such items relate to periods after the Closing Date.
The net amount of all such prorations will be settled and paid by the U.S.
Sellers to Buyer or Buyer to the U.S. Sellers, as the case may be, within
seven days after the Closing Date by wire transfer of immediately
available funds to an account
designated in writing by Buyer or the U.S. Sellers, as applicable,
provided, however, that if any item cannot be prorated with specificity
within seven days after the Closing Date (including real estate taxes and
assessments resulting from, among other things, any proposed or actual
change in valuation prior to the Closing Date to the extent such changes
affect Taxes in the period up to and including the Closing Date) due to
final bills not being issued, the parties will calculate the prorations
with respect to such items as soon as practicable after the actual bills
are issued, and the net amount shall be paid by the responsible party to
the other(s) by wire transfer of immediately available funds promptly
thereafter:
(a) rents, additional rents, taxes and other items payable by the
U.S. Sellers under any lease to be assigned to or assumed by Buyer
pursuant to the terms of this Agreement;
(b) the amount of rents and charges for sewer, water, fuel,
telephone, electricity and other utilities, including Taxes thereon;
provided, however, that no deposits or prepaid amounts will be prorated,
but will be included in the Assets; and
(c) real estate and personal property Taxes and installments of
assessments, if any, on or with respect to the Assets.
Notwithstanding the foregoing, Buyer shall be liable for and pay such
items set forth in clauses (a), (b) and (c) above to the extent such items
are included as liabilities on the Final Closing Statement.
(d) The U.S. Sellers will use commercially reasonable efforts to
cause all utility bills of the U.S. Sellers to be closed and billed by
their respective utility companies as of the Closing Date in order that
utility charges may be separately billed for the period on or prior to the
Closing Date and the period after the Closing Date. If any such utility
charges are not separately billed, they will be prorated presuming that
such charges were uniformly incurred during the period in question."
3. Each reference in Section 2.04(a) to "on the day immediately preceding
the Closing Date" shall be amended to read "on the Closing Date."
4. The reference in Section 2.05(a) to "on the day immediately preceding
the Closing Date" shall be amended to read "on the Closing Date."
5. Section 3.01 of the Agreement is hereby amended as follows:
(a) Each reference in such Section 3.01 to "February 16, 2005" is
hereby replaced by the words "February 18, 2005"; and
(b) the last sentence of Section 3.01 is hereby amended to read in
its entirety as follows:
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"The date on which the Closing shall occur is hereinafter referred to as
the "Closing Date" and the Closing shall be considered effective as of
12:01 a.m., Minneapolis time, on the Closing Date, provided that solely
for certain financial, Tax and accounting purposes (including preparation
of the Closing Statement and the Final Closing Statement) the Closing
shall be deemed effective at 11:59 p.m., Minneapolis time on the Closing
Date. For financial, Tax and accounting purposes, the parties agree that
Sellers shall be entitled to cash collected by the Business through the
Closing Date and cash and cash equivalents held by the Companies as of the
end of the Closing Date and shall be responsible for payroll, benefits,
Taxes and certain other items expressly provided for in this Agreement
through the Closing Date; provided, that Sellers shall not be responsible
for any Taxes or other liabilities or obligations relating to or arising
from any transactions that occur on the Closing Date and are initiated by
the Buyer Entities or any of their affiliates, all of which Taxes,
liabilities and obligations shall be the sole responsibility of the Buyer
Entities."
6. Section 3.02(b)(i) of the Agreement is hereby amended to read in its
entirety as follows:
"(i) the Closing Cash Payment, payable as provided in Section 2.02,
plus a cash payment to IMC of $180,000 in immediately available United
States funds (the "Benefit Prepayment") to the bank account designated in
writing by IMC prior to the Closing (which Benefit Prepayment shall
constitute the "Benefit Prepayment" to be made by Buyer at Closing
pursuant to Schedule 2-A to the Transition Services Agreement (as defined
in Section 6.09));"
7. Section 4.01(i)(G)(ii) of the Agreement is hereby amended by deleting
therefrom the words "other than any such Tax incurred on the Closing Date in the
ordinary course of business or as a result of transactions occurring after the
transfer of the Shares on the Closing Date".
8. The reference in Section 10.01(b) to "the date immediately preceding
the Closing Date" shall be amended to read "the Closing Date" and the clause
beginning with the word "except" shall be deleted.
9. Exhibit 1.02(k) to the Agreement is hereby amended to read in its
entirety as set forth on Exhibit 1.02(k) hereto.
10. Exhibit 1.07 to the Agreement is hereby amended to read in its
entirety as set forth on Exhibit 1.07 hereto.
11. The Buyer Entities acknowledge that Sellers delivered to the Buyer
Entities the Supplement to Disclosure Schedule attached hereto as Exhibit A
prior to Closing pursuant to Section 6.11 of the Agreement.
12. Except as amended by the foregoing, the Agreement and each provision
thereof shall remain in full force and effect.
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13. Each reference to the Agreement in any document or instrument
delivered pursuant to or in connection with the Agreement shall be deemed to be
a reference to the Agreement, as amended by this Amendment.
14. This Amendment may be executed by facsimile and in counterparts, all
of which shall be considered one and the same agreement, and shall become
effective when counterparts have been signed by each of the parties and
delivered to each other party.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
INTERNATIONAL MULTIFOODS CORPORATION
(IMC)
By: /s/ M. ▇▇▇ ▇▇▇▇▇▇
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Name: M. ▇▇▇ ▇▇▇▇▇▇
Title: Vice President, General Counsel &
Secretary
MULTIFOODS BRANDS, INC.
(MBI)
By: /s/ M. ▇▇▇ ▇▇▇▇▇▇
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Name: M. ▇▇▇ ▇▇▇▇▇▇
Title: Vice President and Secretary
FANTASIA CONFECTIONS, INC.
(FCI)
By: /s/ M. ▇▇▇ ▇▇▇▇▇▇
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Name: M. ▇▇▇ ▇▇▇▇▇▇
Title: Vice President and Secretary
▇▇▇▇▇▇▇ FOODS OF CANADA CO. (FORMERLY KNOWN
AS ▇▇▇▇▇ ▇▇▇▇ MULTIFOODS CORPORATION)
(▇▇▇▇▇ ▇▇▇▇)
By: /s/ M. ▇▇▇ ▇▇▇▇▇▇
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Name: M. ▇▇▇ ▇▇▇▇▇▇
Title: Vice President and Secretary
THE ▇. ▇. ▇▇▇▇▇▇▇ COMPANY
(▇▇▇▇▇▇▇)
By: /s/ M. ▇▇▇ ▇▇▇▇▇▇
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Name: M. ▇▇▇ ▇▇▇▇▇▇
Title: Vice President, General Counsel &
Secretary
IMCB CORP.
(Buyer)
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇. ▇▇▇▇▇▇▇▇▇▇
Title: EVP
VALUE CREATION PARTNERS INC.
(VCP)
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇. ▇▇▇▇▇▇▇▇▇▇
Title: EVP
BEST BRANDS CORP.
(BBC)
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇. ▇▇▇▇▇▇▇▇▇▇
Title: EVP