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EXHIBIT 10.3
SECURITIES PURCHASE AGREEMENT
by and among
DLJ MERCHANT BANKING PARTNERS, L.P.,
DLJ INTERNATIONAL PARTNERS, C.V.,
DLJ OFFSHORE PARTNERS, C.V.,
DLJ MERCHANT BANKING FUNDING, INC.,
DLJ CAPITAL CORPORATION,
SPROUT GROWTH II, L.P.,
SPROUT CEO FUND, L.P.,
DLJ MERCHANT BANKING PARTNERS II, L.P.,
DLJ MERCHANT BANKING PARTNERS ▇▇-▇, ▇.▇.,
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇, ▇.▇.,
▇▇▇ DIVERSIFIED PARTNERS, L.P.,
DLJ DIVERSIFIED PARTNERS-A, L.P.,
DLJ MILLENNIUM PARTNERS, L.P.,
DLJMB FUNDING II, INC.,
DLJ FIRST ESC LLC,
DLJ EAB PARTNERS, L.P.,
UK INVESTMENT PLAN 1997 PARTNERS,
NEBCO ▇▇▇▇▇ HOLDING COMPANY,
AND
▇▇▇▇▇▇▇ INDUSTRIES, INC.
dated as of
July 11, 1997
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TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions......................................................2
ARTICLE 2
PURCHASE AND SALE
SECTION 2.01. Purchase and Sale................................................9
SECTION 2.02. Closing..........................................................9
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF NEBCO AND ▇▇▇▇▇▇▇
SECTION 3.01. Corporate Existence and Power..................................10
SECTION 3.02. Corporate Authorization........................................10
SECTION 3.03. Governmental Authorization.....................................10
SECTION 3.04. Non-contravention..............................................11
SECTION 3.05. Capitalization.................................................11
SECTION 3.06. Subsidiaries...................................................12
SECTION 3.07. Financial Statements...........................................13
SECTION 3.08. Absence of Certain Changes.....................................13
SECTION 3.09. No Undisclosed Material Liabilities............................15
SECTION 3.10. Material Contracts.............................................15
SECTION 3.11. Litigation.....................................................16
SECTION 3.12. Compliance with Laws and Court Orders; No Defaults.............16
SECTION 3.13. Properties.....................................................16
SECTION 3.14. Insurance Coverage.............................................17
SECTION 3.15. Licenses and Permits...........................................18
SECTION 3.16. Due Diligence Documents; Disclosure............................18
SECTION 3.17. Finders' Fees..................................................18
SECTION 3.18. Labor Matters..................................................18
SECTION 3.19. Environmental Matters..........................................18
SECTION 3.20. Employee Benefit Plans.........................................20
SECTION 3.21. Meaning of Nebco...............................................21
SECTION 3.22. Nebco's Taxes..................................................21
SECTION 3.23. Certain Interests..............................................22
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SECTION 3.24. Charter and Bylaws.............................................22
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE BUYERS
SECTION 4.01. Existence and Power............................................23
SECTION 4.02. Authorization..................................................23
SECTION 4.03. Governmental Authorization.....................................23
SECTION 4.04. Non-contravention..............................................23
SECTION 4.05. Financing......................................................23
SECTION 4.06. Purchase for Investment........................................23
SECTION 4.07. Litigation.....................................................24
SECTION 4.08. Finders' Fees..................................................24
ARTICLE 5
COVENANTS OF THE BUYERS AND NEBCO
SECTION 5.01. Best Efforts...................................................24
SECTION 5.02. Certain Filings................................................25
SECTION 5.03. Public Announcements...........................................25
SECTION 5.04. Allocation of Value............................................25
ARTICLE 6
▇▇▇▇▇▇▇ OBLIGATIONS
SECTION 6.01. ▇▇▇▇▇▇▇'▇ Taxes................................................25
SECTION 6.02. Nebco's Current Tax Sharing Agreement..........................26
SECTION 6.03. Tax Sharing....................................................27
SECTION 6.04. Tax Assets.....................................................29
SECTION 6.05. Apportionment of Section 382 Limitation........................30
SECTION 6.06. Indemnification................................................31
ARTICLE 7
CONDITIONS TO CLOSING
SECTION 7.01. Conditions to Obligations of Nebco and the Buyers...............31
SECTION 7.02. Conditions to Obligations of the Buyers.........................32
SECTION 7.03. Conditions to Obligations of Nebco..............................34
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PAGE
ARTICLE 8
SURVIVAL; INDEMNIFICATION
SECTION 8.01. Survival.......................................................35
SECTION 8.02. Indemnification................................................35
SECTION 8.03. Procedures.....................................................35
SECTION 8.04. Waiver of Subrogation..........................................36
ARTICLE 9
TERMINATION
SECTION 9.01. Grounds for Termination.........................................36
SECTION 9.02. Effect of Termination...........................................36
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Notices.......................................................37
SECTION 10.02. Amendments and Waivers........................................38
SECTION 10.03. Expenses......................................................38
SECTION 10.04. Successors and Assigns........................................38
SECTION 10.05. Governing Law.................................................39
SECTION 10.06. Jurisdiction..................................................39
SECTION 10.07. Counterpart; Third Party Beneficiaries........................39
SECTION 10.08. Entire Agreement..............................................39
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ANNEXES
Annex A Senior Preferred Stock Purchased by the New Buyers
Annex B Junior Preferred Stock Purchased by the New Buyers
Annex C Warrants to be Issued to the New Buyers
Annex D 12.5% Senior Secured Notes of Nebco to be Redeemed
by the Original Buyers
Annex E Form of Certificate of Designations of 13 1/2% Senior
Exchangeable Preferred Stock Due 2009
Annex F Form of Certificate of Designations of 15% Junior
Exchangeable Preferred Stock Due 2009
Annex G Form of Warrant
Annex H Certificate of Incorporation
Annex I Bylaws
Annex J Sideletter of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SCHEDULES
Schedule 3.05 Owners of Capital Stock
Schedule 3.06 Subsidiaries
Schedule 3.08 Absence of Certain Changes
Schedule 3.09 Material Liabilities
Schedule 3.10 Material Contracts
Schedule 3.11 Litigation
Schedule 3.23 Certain Interests
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SECURITIES PURCHASE AGREEMENT
AGREEMENT dated as of July 11, 1997 by and among DLJ Merchant Banking
Partners, L.P., a Delaware limited partnership ("DLJMB PARTNERS"); DLJ
International Partners, C.V., a Netherlands Antilles limited partnership; DLJ
Offshore Partners, C.V., a Netherlands Antilles limited partnership; DLJ
Merchant Banking Funding, Inc., a Delaware corporation, DLJ Capital Corporation,
a Delaware corporation, Sprout Growth II, L.P., a Delaware limited partnership,
Sprout CEO Fund, L.P., a Delaware limited partnership, DLJ First ESC LLC, a
Delaware limited liability company, (each of DLJ First ESC LLC, except in
connection with it's acquisition of Securities (as defined below) pursuant to
this Agreement in which case it shall be referred to as a New Buyer (as defined
below), and the other foregoing entities, an "ORIGINAL BUYER", and collectively,
the "ORIGINAL BUYERS"), DLJ Merchant Banking Partners II, L.P., a Delaware
limited partnership, DLJ Merchant Banking Partners II-A, L.P., a Delaware
limited partnership, DLJ Offshore Partners II, C.V., a Netherlands Antilles
limited partnership, DLJ Diversified Partners, L.P., a Delaware limited
partnership, DLJ Diversified Partners-A, L.P., a Delaware limited partnership,
DLJ Millennium Partners, L.P., a Delaware limited partnership, DLJMB Funding II,
Inc., a Delaware corporation, DLJ EAB Partners, L.P., a Delaware limited
partnership, UK Investment Plan 1997 Partners, a Delaware partnership (each of
the foregoing, excluding the Original Buyers, but including DLJ First ESC LLC in
its capacity as described above, a "NEW BUYER", and collectively, the "NEW
BUYERS", and each of the foregoing, including the Original Buyers, a "BUYER",
and collectively, the "BUYERS"), ▇▇▇▇▇▇▇ Industries, Inc., a Delaware
corporation ("▇▇▇▇▇▇▇"), and Nebco ▇▇▇▇▇ Holding Company, a Delaware corporation
("NEBCO").
WITNESSETH:
WHEREAS, the New Buyers desire to purchase from Nebco, and Nebco desires to
issue and sell to the New Buyers, upon the terms and subject to the conditions
set forth herein, Senior Preferred Stock (as defined below), Junior Preferred
Stock (as defined below) and Warrants (as defined below) to purchase up to 22.5%
of the fully-diluted Nebco Common Stock (as defined below); and
WHEREAS, the Original Buyers and Nebco desire to have repaid in full all of
the issued and outstanding 12.5% Senior Secured Notes of Nebco, upon the terms
and subject to the conditions set forth herein;
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NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, agreements and conditions hereinafter
set forth, and intending to be legally bound hereby, the parties hereto agree as
follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. (a) The following terms, as used herein, have
the following meanings:
"ACCOUNTING REFEREE" means a nationally recognized accounting firm having
no material relationship with the Buyers, ▇▇▇▇▇▇▇, Nebco or their Affiliates,
acceptable to all parties to the dispute which such Referee is to resolve and
appointed within 15 days after the need for such Referee arises.
"AFFILIATE" means, with respect to any Person, any other Person, directly
or indirectly, controlling, controlled by, or under common control with such
Person. For the purposes of this definition, "CONTROL" (including, with
correlative meanings, the terms "CONTROLLING", "CONTROLLED BY" and "UNDER COMMON
CONTROL WITH"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting securities, by
contract or otherwise; provided, that none of the Buyers or other stockholders
of Nebco shall be deemed to be an Affiliate of any other Buyer solely by virtue
of their beneficial ownership of securities of Nebco.
"AMERISERVE" means AmeriServe Food Distribution, Inc., a Nebraska
corporation.
"AMERISERVE DOCUMENTS" means the Asset Purchase Agreement (the "ASSET
PURCHASE AGREEMENT") dated as of May 23, 1997 between PepsiCo, Inc., a North
Carolina corporation, and Nebco, and each other document relating to the
acquisition, directly or indirectly, by Nebco of the assets and properties of
PepsiCo, Inc. contemplated thereby.
"AMERISERVE SENIOR PREFERRED STOCK" means the Senior Non-Convertible
Preferred Stock, par value $1.00 per share, of AmeriServe.
"BALANCE SHEET" means the audited balance sheet of Nebco and its
Subsidiaries as of December 28, 1996.
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"BALANCE SHEET DATE" means December 28, 1996.
"BENEFIT ARRANGEMENT" means, with respect to Nebco, any employment,
severance or similar contract, arrangement or policy, or any plan or arrangement
(whether or not written) providing for severance benefits, insurance coverage
(including any self-insured arrangements), workers' compensation, disability
benefits, supplemental unemployment benefits, vacation benefits, retirement
benefits, deferred compensation, profit-sharing, bonuses, stock options, stock
appreciation rights or other forms of incentive compensation or post-retirement
insurance, compensation or benefits that (i) is not an Employee Plan, (ii) is
entered into or maintained, as the case may be, by Nebco or any of its
Affiliates and (iii) covers any employee or former employee of Nebco or any of
its Subsidiaries.
"BUSINESS DAY" means any day except a Saturday, Sunday or other day on
which commercial banking institutions in The City of New York are authorized by
law or executive order to close.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, and any regulations promulgated thereunder.
"CLOSING DATE" means the date of the Closing.
"CODE" means the Internal Revenue Code of 1986, as amended.
"CREDIT AGREEMENT" means the Second Amended and Restated Credit Agreement
dated as of July 11, 1997 among AmeriServe, Bank of America National Trust and
Savings Association, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation and
certain other financial institutions listed therein.
"DLJMB II" means DLJ Merchant Banking II, Inc., a Delaware corporation,
acting on behalf of the New Buyers.
"EMPLOYEE PLAN" means, with respect to Nebco, any "EMPLOYEE BENEFIT PLAN",
as defined in Section 3(3) of ERISA, that (i) is subject to any provision of
ERISA, (ii) is maintained, administered or contributed to by Nebco or any of its
Affiliates and (iii) covers any employee or any former employee of Nebco or any
of its Subsidiaries.
"ENVIRONMENTAL LAWS" means any and all federal, state, local and foreign
statutes, laws, treaties, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, codes, plans, injunctions, permits, concessions,
grants, franchises,
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licenses, agreements and governmental restrictions, whether now or hereafter in
effect, relating to human health, the environment or to pollutants,
contaminants, wastes or chemicals or any toxic, radioactive, ignitable,
corrosive, reactive or otherwise hazardous substances, wastes or materials.
"ENVIRONMENTAL LIABILITIES" means, with respect to Nebco, any and all
liabilities of or relating to Nebco or any of its Subsidiaries (including any
entity which is, in whole or in part, a predecessor of Nebco or any of its
Subsidiaries), whether vested or unvested, contingent or fixed, actual or
potential, known or unknown, which (i) arise under or relate to matters covered
by Environmental Laws (including without limitation any matters disclosed or
required to be disclosed in Schedule 3.19 hereto) and (ii) relate to actions
occurring or conditions existing on or prior to the Closing Date.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto, and the rules and regulations
promulgated thereunder.
"ERISA AFFILIATE" of any entity means any other entity which, together with
such entity, would be treated as a single employer under Section 414 of the
Code.
"FINAL DETERMINATION" means (i) with respect to federal Taxes, a
"determination" as defined in Section 1313(a) of the Code or execution of an
Internal Revenue Service Form 870AD and, with respect to Taxes other than
federal Taxes, any final determination of liability in respect of a Tax that,
under applicable law, is not subject to further appeal, review or modification
through proceedings or otherwise (including the expiration of a statute of
limitations or a period for the filing of claims for refunds, amended returns or
appeals from adverse determinations) or (ii) the payment of Tax by the Buyers,
▇▇▇▇▇▇▇, Nebco or any of their Affiliates, whichever is responsible for payment
of such Tax under applicable law, with respect to any item disallowed or
adjusted by a Taxing Authority, provided that such responsible party determines
that no action should be taken to recoup such payment and the other party
agrees.
"HAZARDOUS SUBSTANCES" means any pollutant, contaminant, waste or
chemical or any toxic, radioactive, corrosive, reactive or otherwise hazardous
substance, waste or material, or any substance having any constituent elements
displaying any of the foregoing characteristics, including, without limitation,
petroleum, its derivatives, by-products and other hydrocarbons, and any
substance regulated under Environmental Laws.
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"▇▇▇▇▇▇▇ GROUP" means (i) with respect to federal Taxes, the affiliated
group of corporations (as defined in Section 1504(a) of the Code) of which
▇▇▇▇▇▇▇ is a member, and (ii) with respect to state and local taxes, the
consolidated, combined, unitary or similar group of which ▇▇▇▇▇▇▇ is a member.
"INDENTURE" means the Indenture dated as of the Closing Date, by and among
Nebco and State Street Bank and Trust Company, as trustee ("TRUSTEE"), as
thereafter amended or supplemented from time to time, relating to the Senior
Discount Notes.
"INTELLECTUAL PROPERTY RIGHT" means any trademark, service ▇▇▇▇, trade
name, invention, patent, trade secret, copyright, know-how (including any
registrations or applications for registration of any of the foregoing) or any
other similar type of proprietary intellectual property right.
"INVESTORS AGREEMENT" means the Amended and Restated Investors Agreement
dated as of the date hereof by and among the Buyers, Nebco, Nebco ▇▇▇▇▇
Distributors, Inc. and ▇▇▇▇▇▇▇.
"JUNIOR PREFERRED STOCK" means the 15% Junior Exchangeable Preferred Stock
Due 2009 of Nebco issued pursuant to the Certificate of Designations attached
hereto as Annex F.
"LIEN" means, with respect to any property or asset, any mortgage, lien,
pledge, charge, security interest, encumbrance or other adverse claim of any
kind in respect of such property or asset. For the purposes of this Agreement, a
Person shall be deemed to own subject to a Lien any property or asset which it
has acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
relating to such property or asset.
"MARCH CREDIT AGREEMENT" means the Amended and Restated Credit Agreement
dated as of March 26, 1997 among AmeriServe, Bank of America National Trust and
Savings Association, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation and
certain other financial institutions listed therein, which, when amended and
restated as of July 11, 1997, shall be the Credit Agreement.
"MATERIAL ADVERSE EFFECT" means, with respect to Nebco, a material adverse
effect on the condition (financial or otherwise), business, assets or results of
operations of Nebco and its Subsidiaries, taken as a whole.
"MULTIEMPLOYER PLAN" means each Employee Plan that is a multiemployer Plan
as defined in Section 3(37) of ERISA.
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"NEBCO, CLASS A COMMON STOCK" means the Class A Common Stock, par value
$.01 per share, of Nebco.
"NEBCO CLASS B COMMON STOCK" means the Class B Non-Voting Common Stock, par
value $.01 per share, of Nebco.
"NEBCO COMMON STOCK" means Nebco Class A Common Stock and Nebco Class B
Common Stock.
"NEBCO, PREFERRED STOCK" means the Preferred Stock, par value $.01 per
share, of Nebco.
"NEBCO SENIOR PREFERRED STOCK" means the Junior Non-Convertible Preferred
Stock, par value $.01 per share, of Nebco (previously the Senior Non-Convertible
Preferred Stock).
"NEW NEBCO, BYLAWS" means the Bylaws of Nebco as in effect immediately
prior to the Closing and in the form attached hereto as Annex I.
"NEW NEBCO CHARTER" means the Certificate of Incorporation of Nebco, as
amended, as in effect immediately prior to the Closing and in the form attached
hereto as Annex H
"1934 ACT" means the Securities Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
"ORIGINAL WARRANTS" means the warrants issued by Nebco on January 25, 1996
to the Original Buyers for the purchase of Nebco Common Stock.
"PERSON" means an individual, corporation, partnership, association, trust
or other entity or organization, including a government or political subdivision
or an agency or instrumentality thereof.
"PFS BUSINESS" shall have the meaning ascribed to such term in the Asset
Purchase Agreement.
"SECURITIES" means, collectively, the Senior Discount Notes, the Senior
Preferred Stock, the Junior Preferred Stock and the Warrants.
"SENIOR DISCOUNT NOTES" means the 12 3/8% Senior Discount Notes due 2007 of
Nebco to be issued pursuant to the Indenture.
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"SENIOR PREFERRED STOCK" means the 13 1/2% Senior Exchangeable Preferred
Stock Due 2009 of Nebco issued pursuant to the Certificate of Designations
attached hereto as Annex E.
"SUBSIDIARY" means, with respect to any Person, any corporation or any
entity of which securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other persons performing
similar functions are at the time directly or indirectly owned by such Person.
"TAX" (and with correlative meaning, "TAXES") means, except to the extent
otherwise provided in Section 6.01 of this Agreement, (i) any net income,
alternative or add-on minimum tax, gross income, gross receipts, sales, use, ad
valorem, value added, transfer, franchise, profits, license, payroll,
employment, excise, severance, stamp, occupation, premium, property,
environmental or windfall profit tax, custom, duty or other tax, governmental
fee or other like assessment or charge of any kind whatsoever, together with any
interest or any penalty, addition to tax or additional amount imposed by any
governmental authority (a "TAXING AUTHORITY") responsible for the imposition of
any such tax (domestic or foreign), (ii) liability of Nebco or any of its
Subsidiaries for the payment of any amounts of the type described in (i) as a
result of being a member of an affiliated, consolidated, combined or unitary
group, or being a party to any agreement or arrangement whereby liability of
Nebco or any of its Subsidiaries for payment of such amounts was determined or
taken into account with reference to the liability of any other person for any
Pre-Closing Tax Period and (iii) liability of Nebco or any of its Subsidiaries
for the payments of any amounts as a result of being party to any tax sharing
agreement (including, without limitation, the Tax Sharing Agreement) or with
respect to the payment of any amounts of the type described in (i) or (ii) as a
result of any express or implied obligation to indemnify any other Person.
"TAX ASSET" means any net operating loss, net capital loss, investment tax
credit, foreign tax credit, charitable deduction or any other credit or tax
attribute which could reduce Taxes (including, without limitation, deductions
and credits related to alternative minimum Taxes).
"TITLE IV PLAN" means an Employee Plan, other than any Multiemployer Plan,
subject to Title IV of ERISA.
"TRANSACTION DOCUMENTS" means this Agreement, the Investors Agreement, the
Senior Discount Notes, the Certificate of Designations of the Senior Preferred
Stock and the Junior Preferred Stock and the Warrants and each such document is
sometimes referred to individually as a "TRANSACTION DOCUMENT."
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"TRANSACTIONS" means the transactions contemplated by the Transaction
Documents.
"TRUSTEE" shall have the meaning set forth in the definition of
"INDENTURE."
"WARRANTS" means the warrants in the form attached hereto as Annex G,
issued by Nebco to the New Buyers for the purchase of those numbers of shares of
Nebco Common Stock (subject to adjustments) set forth on Annex C hereto.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
Term Section
Closing 2.02
Damages 8.02
Indemnified Party 8.03
Indemnifying Party 8.03
Interim Financial Statements 3.07(b)
Nebco Securities 3.05(b)(iii)
Nebco Tax Asset 6.04(e)
Other Payments 6.03(f)
Party 3.22(b)
Permits 3.15
Pre-Closing Tax Period 3.22(a)(i)
Purchase Prices 2.01(a)(ii)
Recipient 6.05
Returns 3.22(a)(i)
Series $50,000 Preferred Stock 3.05(b)
Series $25,000 Preferred Stock 3.05(b)
Stub Period 6.03(b)
Subsidiary Securities 3.06(b)(ii)
Tax Provision 6.03(f)
Tax Sharing Agreement 3.22(b)
Tax Sharing Amount 6.03(b)
True-Up Schedule 6.03(b)
Unadjusted Tax Sharing Amount 6.03(f)
USRPHC 3.22(a)(vi)
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ARTICLE 2
PURCHASE AND SALE
SECTION 2.01. Purchase and Sale. Upon the terms and subject to the
conditions of this Agreement, (i) Nebco agrees to sell to each New Buyer and
each New Buyer agrees, severally and not jointly, to purchase from Nebco at the
Closing, the Senior Preferred Stock, the Junior Preferred Stock and Warrants set
forth opposite its name on Annex A, Annex B and Annex C hereto, respectively,
(ii) Nebco agrees to redeem and each Original Buyer agrees to have redeemed that
principal amount of 12.5% Senior Secured Notes of Nebco held by such Original
Buyers as is set forth opposite its name on Annex D, upon the terms and subject
to the conditions set forth herein. The purchase price for the Senior Preferred
Stock (the "SENIOR PREFERRED PURCHASE PRICE") applicable to each New Buyer is
set forth opposite its name on Annex A hereto. The purchase price for the Junior
Preferred Stock (the "JUNIOR PREFERRED PURCHASE PRICE", and together with the
Senior Preferred Purchase Price, the "PURCHASE PRICES") applicable to each New
Buyer is set forth opposite its name on Annex B hereto. The Purchase Prices
shall be paid as provided in Section 2.02.
SECTION 2.02. Closing. The closing (the "CLOSING") of the purchase and sale
of the Securities hereunder shall take place at the offices of Wachtell, Lipton,
▇▇▇▇▇ & ▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ as soon as possible after
satisfaction of the conditions set forth in Article 7 or at such other time or
place as the Buyers and Nebco may agree. At the Closing:
(a) Each New Buyer shall deliver to Nebco the amount of (i) the applicable
Senior Preferred Purchase Price, and (ii) the applicable Junior Preferred
Purchase Price, in immediately available funds by wire transfer to the accounts
of Nebco, designated by Nebco.
(b) Each Original Buyer shall deliver to Nebco the aggregate principal
amount of 12.5% Senior Secured Notes of Nebco set forth opposite such Original
Buyer's name in Annex D.
(c) Nebco shall issue and deliver to each New Buyer the Securities being
purchased hereunder by such New Buyer, in each case registered in the name of
such Buyer, and to each Original Buyer the amount being paid in redemption by
Nebco for all 12.5% Senior Secured Notes of Nebco held by such Original Buyer.
Each Warrant shall be for the amount of Warrant Shares set forth opposite such
applicable New Buyer's name on Annex C and the Senior Preferred Stock and Junior
Preferred Stock shall be in such denominations as such Buyer may designate by
notice to Nebco not later than one Business Day prior to the Closing.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF NEBCO AND ▇▇▇▇▇▇▇
Each of Nebco and ▇▇▇▇▇▇▇ represents and warrants to each Buyer as of the
date hereof that:
SECTION 3.01. Corporate Existence and Power. Each of Nebco and ▇▇▇▇▇▇▇ (i)
is a corporation duly incorporated, validly existing and in good standing under
the laws of its jurisdiction of incorporation, (ii) has all corporate powers and
all governmental licenses, authorizations, permits, consents and approvals
required to carry on such Person's business as now conducted and (iii) is duly
qualified to do business as a foreign corporation and is in good standing in
each jurisdiction where such qualification is necessary, except for purposes of
clauses 3.01(a)(ii) and 3.01(a)(iii) where the failure to have such licenses,
authorizations, permits, consents or approvals or to be in good standing as a
foreign corporation would not reasonably be expected to have a Material Adverse
Effect. Nebco has heretofore delivered to the Buyers true and complete copies of
the certificate of incorporation and bylaws of Nebco and its Subsidiaries as
currently in effect.
SECTION 3.02. Corporate Authorization. The execution, delivery and
performance by Nebco, AmeriServe and ▇▇▇▇▇▇▇ of each of the Transaction
Documents and the AmeriServe Documents to which such Person is a party are
within such Person's corporate powers and have been duly authorized by all
necessary corporate action on the part of such Person. This Agreement
constitutes (and when executed and delivered, each other Transaction Document
and AmeriServe Document to which Nebco, AmeriServe or ▇▇▇▇▇▇▇ is a party will
constitute) a valid and binding agreement of Nebco, AmeriServe and ▇▇▇▇▇▇▇,
enforceable against such Person in accordance with its terms, except as such
validity, enforceability and binding effect may be limited by bankruptcy,
insolvency, moratorium and other laws affecting creditors' rights generally and
by equitable principles.
SECTION 3.03. Governmental Authorization. The execution, delivery and
performance by Nebco, AmeriServe and ▇▇▇▇▇▇▇ of each of the Transaction
Documents and the AmeriServe Documents to which such Person is a party require
no action by or in respect of, or filing with, any governmental body, agency or
official for the consummation of the transactions contemplated thereby, other
than as required pursuant to the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, as amended, and the Competition Act (Canada), as amended.
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SECTION 3.04. Non-contravention. The execution, delivery and performance by
Nebco, AmeriServe and ▇▇▇▇▇▇▇ of each of the Transaction Documents and the
AmeriServe Documents to which such Person is a party and the consummation by
such Person of the Transactions and the transactions contemplated by the
AmeriServe Documents do not and will not (i) violate the certificate of
incorporation or bylaws of any such Person, (ii) assuming compliance with the
matters referred to in Section 3.03, violate any applicable material law, rule,
regulation, judgment, injunction, order or decree, (iii) other than pursuant to
the Credit Agreement, require any consent or other action by any Person under,
constitute a default under, or give rise to any right of termination,
cancellation or acceleration of any material right or obligation of such Person
or any of its Subsidiaries to a loss of any material benefit to which such
Person or any of its Subsidiaries is entitled under, any agreement or other
instrument binding upon such Person or any of its Subsidiaries or any license,
franchise, permit or other similar authorization held by such Person or any of
its Subsidiaries or (iv) result in the creation or imposition of any Lien on any
material asset of such Person or any of its Subsidiaries.
SECTION 3.05. Capitalization. (a) As of the date hereof, and after giving
effect to the Transactions, the authorized capital stock of Nebco consists of
(i) 50,000 shares of Nebco Common Stock, consisting of 30,000 shares of Nebco
Class A Common Stock and 20,000 shares of Nebco Class B Common Stock and (ii)
30,000,000 shares of Nebco Preferred Stock, of which 600 shares of Nebco Senior
Preferred Stock, 5,000,000 shares of Senior Preferred Stock, 5,000,000 shares of
Junior Preferred Stock and 300 shares of 8% Senior Convertible Preferred Stock
are authorized. As of the date hereof and after giving effect to the
Transactions, there are outstanding 6,508 shares of Nebco Class A Common Stock,
1,733 shares of Class B Common Stock, 2,400,000 shares of Senior Preferred
Stock, 2,200,000 shares of Junior Preferred Stock, 600 shares of Nebco Senior
Preferred Stock and 235 shares of 8% Senior Convertible Preferred Stock. As of
the date hereof and after giving effect to the Transactions, (i) 1,759 Original
Warrants have been issued to the Original Buyers and are outstanding, and 1,389
shares of Nebco Class A Common Stock and 370 shares of Nebco Class B Common
Stock are reserved for issuance in connection with the exercise of the Original
Warrants; and (ii) 2,904 Warrants have been issued to the New Buyers and are
outstanding, and 2,904 shares of Nebco Class A Common Stock are reserved for
issuance in connection with the exercise of such Warrants. The record owners of
all of the issued and outstanding capital stock of Nebco as of the moment
immediately prior to the Closing are as set forth on Schedule 3.05(a) attached
hereto and effective upon the Closing shall be as set forth on Schedule 3.05(b)
attached hereto. ▇▇▇ shall, effective on the Closing, own no other assets other
than the securities it owns as set forth on Schedule 3.05(b).
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(b) All outstanding shares of capital stock of Nebco have been duly
authorized and validly issued and are fully paid and non-assessable and free and
clear of any preemptive or similar rights except as contemplated by the
Investors Agreement. The issuance and sale of the Senior Preferred Stock, the
Junior Preferred Stock and the Warrants have been duly authorized by Nebco and
all necessary corporate and shareholder action in respect thereof have been
taken, the Senior Preferred Stock, the Junior Preferred Stock and the Warrants
issued to the Buyers on the date hereof are valid and binding obligations of
Nebco, except as may be limited by bankruptcy, insolvency, moratorium or other
laws affecting the enforcement of creditors' rights generally and by laws of
general application limiting the availability of equitable remedies. The Senior
Preferred Stock and Junior Preferred Stock when issued pursuant hereto will be
validly issued and fully paid and nonassessable. All shares of Nebco Common
Stock to be issued upon the exercise of the Warrants and Original Warrants, when
issued, will be duly authorized and validly issued, fully paid and nonassessable
and free and clear of any preemptive or similar rights except as contemplated by
the Investors Agreement. Except as set forth in this Section 3.05, there are no
outstanding (i) shares of capital stock or voting securities of Nebco, (ii)
securities of Nebco convertible into or exchangeable for shares of capital stock
or voting securities of Nebco or (iii) options or other rights to acquire from
Nebco, or other obligation of Nebco to issue, any capital stock, voting
securities or securities convertible into or exchangeable for capital stock or
voting securities of Nebco (the items in clauses 3.05(b)(i), 3.05(b)(ii) and
3.05(b)(iii), collectively, with respect to Nebco, the "NEBCO SECURITIES").
Other than as provided in the Transaction Documents, there are no outstanding
obligations of Nebco or any of its Subsidiaries to repurchase, redeem or
otherwise acquire any Nebco Securities.
SECTION 3.06. Subsidiaries. (a) Each Subsidiary of Nebco is a corporation
duly incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation, has all corporate powers and all governmental
licenses, authorizations, permits, consents and approvals required to carry on
its business as now conducted, is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where such
qualification is necessary, except where the failure to have such licenses,
authorizations, permits, consents or approvals or to be in good standing as a
foreign corporation would not reasonably be expected to have a Material Adverse
Effect. All Subsidiaries of Nebco and their respective jurisdictions of
incorporation are identified in Schedule 3.06.
(b) Except as disclosed in Schedule 3.06, all of the outstanding capital
stock of, or other voting securities or ownership interests in, each Subsidiary
of Nebco is owned by Nebco, directly or indirectly, free and clear of any Lien
and free of any other limitation or restriction (including any restriction on
the right to vote, sell or otherwise dispose of such capital stock or other
voting securities or ownership
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interests). Except as disclosed in Schedule 3.06, there are no outstanding (i)
securities of Nebco or any of its Subsidiaries convertible into or exchangeable
for shares of capital stock or other voting securities or ownership interests in
any of Nebco's Subsidiaries or (ii) except for the Original Warrants, options or
other rights to acquire from Nebco or any of its Subsidiaries, or other
obligation of Nebco or any of its Subsidiaries to issue, any capital stock or
other voting securities or ownership interests in, or any securities convertible
into or exchangeable for any capital stock or other voting securities or
ownership interests in, any of Nebco's Subsidiaries (the items in clauses
3.06(b)(i) and 3.06(b)(ii), the "SUBSIDIARY SECURITIES"). Other than as
expressly contemplated by the Transaction Documents, there are no outstanding
obligations of Nebco or any of its Subsidiaries to repurchase, redeem or
otherwise acquire any outstanding Subsidiary Securities of Nebco.
SECTION 3.07. Financial Statements. (a) The audited consolidated financial
statements of Nebco and its Subsidiaries as of December 28, 1996 present fairly,
in all material respects, the consolidated financial position of Nebco and its
Subsidiaries as of such date and their consolidated results of operations and
cash flows for the periods then ended in conformity with generally accepted
accounting principles applied on a consistent basis.
(b) The unaudited interim consolidated financial statements of Nebco and
its Subsidiaries as of March 29, 1997 (the "INTERIM FINANCIAL STATEMENTS")
present fairly, in all material respects, the consolidated financial position of
Nebco and its Subsidiaries as of such date and their consolidated results of
operations and cash flows for the period then ended in conformity with generally
accepted accounting principles applied on a consistent basis.
SECTION 3.08. Absence of Certain Changes. Since the Balance Sheet Date and
except pursuant to the March Credit Agreement, as contemplated by the AmeriServe
Documents or the Credit Agreement, or as set forth on Schedule 3.08, the
business of Nebco and its Subsidiaries has been conducted in the ordinary course
consistent with past practices and there has not been:
(i) any event, occurrence, development or state of circumstances or
facts which has had or could reasonably be expected to have a Material
Adverse Effect;
(ii) any declaration, setting aside or payment of any dividend or
other distribution with respect to any Nebco Securities, or any repurchase,
redemption or other acquisition by Nebco or any of its Subsidiaries of any
Nebco Securities or Subsidiary Securities, except the repurchases by The
▇▇▇▇▇ ▇. Post Company of all of its Class B Common Stock;
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(iii) any amendment of any material term of any outstanding Nebco
Security or Subsidiary Security by Nebco or any of its Subsidiaries, except
for amendments to the Certificate of Designations of the Senior
Non-Convertible Preferred Stock and a sideletter from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
consenting to the amendment of the Certificate of Designations of 8% Senior
Convertible Preferred Stock of Nebco;
(iv) other than pursuant to the Credit Agreement, any incurrence,
assumption or guarantee by Nebco or any of its Subsidiaries of any
indebtedness for borrowed money other than in the ordinary course of
business consistent with past practices and in no event for an aggregate
amount greater than $150,000;
(v) any creation or assumption by Nebco or any of its Subsidiaries of
any Lien on any material asset other than in the ordinary course of
business consistent with past practices;
(vi) any making of any loan, advance or capital contribution to or
investment in any Person other than loans, advances or capital
contributions to or investments in wholly-owned Subsidiaries of Nebco made
in the ordinary course of business consistent with past practices;
(vii) any damage, destruction or other casualty loss (whether or not
covered by insurance) affecting the business or assets of Nebco or any of
its Subsidiaries which, individually or in the aggregate, has had or would
reasonably be expected to have a Material Adverse Effect;
(viii) any transaction or commitment made, or any contract or
agreement entered into, by Nebco or any of its Subsidiaries relating to its
assets or business (including the acquisition or disposition of any assets)
or any relinquishment by Nebco or any of its Subsidiaries of any contract
or other right, in either case, material to Nebco and its Subsidiaries,
taken as a whole, other than transactions and commitments in the ordinary
course of business consistent with past practices and those contemplated by
this Agreement or by the AmeriServe Documents;
(ix) any material change in any method of accounting or accounting
practice by Nebco or any of its Subsidiaries;
(x) other than as set forth on Schedule 3.08, any (A) employment,
deferred compensation, severance, retirement or other similar agreement
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entered into with any director, officer or employee of Nebco or any of its
Subsidiaries (or any amendment to any such existing agreement), (B) grant
of any severance or termination pay to any director, officer or employee of
Nebco or any of its Subsidiaries or (C) change in compensation or other
benefits payable to any director, officer or employee of Nebco or any of
its Subsidiaries pursuant to any severance or retirement plans or policies
thereof, other than any such change made in the ordinary course of business
but in no event greater than $500,000;
(xi) any labor dispute, other than routine individual grievances or
disputes involving an amount less than $50,000, or any activity or
proceeding by a labor union or representative thereof to organize any
employees of Nebco or any if its Subsidiaries, which employees were not
subject to a collective bargaining agreement at the Balance Sheet Date, of
Nebco, or any lockouts, strikes, slowdowns, work stoppages or, to its
knowledge, threats thereof by or with respect to any employees of Nebco or
any of its Subsidiaries; or
(xii) any resignation, retirement or any termination of employment of
any executive officer or other key employee of Nebco or any of its
Subsidiaries nor has Nebco or any of its Subsidiaries received any notice
of any such resignation or retirement from any such officer or employee.
SECTION 3.09. No Undisclosed Material Liabilities. There are no liabilities
of Nebco or any of its Subsidiaries of any kind whatsoever, whether accrued,
contingent, absolute, determined, determinable or otherwise, and there is no
existing condition, situation or set of circumstances which could reasonably be
expected to result in such a liability, other than:
(a) liabilities provided for in the Balance Sheet or disclosed in the notes
thereto;
(b) liabilities disclosed on Schedule 3.09; and
(c) other undisclosed liabilities which, individually or in the aggregate,
are not material to Nebco or any of its Subsidiaries, as applicable, and in any
event do not exceed $1,000,000 in the aggregate.
SECTION 3.10. Material Contracts. (a) Except as disclosed in Schedule 3.10,
neither Nebco nor any of its Subsidiaries is a party to or bound by:
(i) any agreement with any director or officer of Nebco or any of its
Subsidiaries or with any "ASSOCIATE" or any member of the "IMMEDIATE
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FAMILY" (as such terms are respectively defined in Rules 12b-2 and 16a-1 of
the ▇▇▇▇ ▇▇▇) of any such director or officer; or
(ii) any other agreement, commitment, arrangement or plan not made in
the ordinary course of business that is material to Nebco and its
Subsidiaries, taken as a whole.
(b) Each agreement, commitment, arrangement or plan disclosed in any
Schedule to this Agreement or required to be disclosed pursuant to this Section
3.10 is a valid and binding agreement of Nebco or its Subsidiaries, as the case
may be, and is in full force and effect (except as such validity and binding
effect may be limited by bankruptcy, insolvency, moratorium or other laws
affecting creditors' rights generally and by equitable principles), and neither
Nebco nor any of its Subsidiaries is nor, to the knowledge of Nebco, is any
other party thereto in default or breach in any material respect under the terms
of any such agreement, contract, plan, lease, arrangement or commitment except
for defaults or breaches which, individually or in the aggregate, would not
reasonably be expected to have Material Adverse Effect.
SECTION 3.11. Litigation. Other than as set forth on Schedule 3.11,
there is no action, suit, investigation or proceeding pending against, or to the
knowledge of Nebco threatened against or affecting, Nebco or any of its
Subsidiaries or any of their respective properties before any court or
arbitrator or any governmental body, agency or official which individually or in
the aggregate would reasonably be expected to have a Material Adverse Effect or
which in any manner challenges or seeks to prevent, enjoin, alter or materially
delay the transactions contemplated by the Transaction Documents.
SECTION 3.12. Compliance with Laws and Court Orders; No Defaults. (a)
Neither Nebco nor any of its Subsidiaries is in violation of, and has not since
January 1, 1995, violated, any applicable law, rule, regulation, judgment,
injunction, order or decree, except for violations which are not material.
(b) Neither Nebco nor any of its Subsidiaries is in material default under,
and no condition exists that with notice or lapse of time or both would
constitute a material default under, any agreement or other instrument binding
upon Nebco or any of its Subsidiaries or any license, franchise, permit or
similar authorization held by Nebco or any of its Subsidiaries.
SECTION 3.13. Properties. (a) Except as set forth on Schedule 3.13, Nebco
and its Subsidiaries have good title to, or in the case of leased property have
valid leasehold interests in, all property and assets (whether real or personal,
tangible or intangible) reflected on the Balance Sheet or material property and
assets acquired after
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the Balance Sheet Date, and none of such property or assets is subject to any
Liens, except:
(i) Liens reflected on the Balance Sheet;
(ii) Liens for taxes not yet due or being contested in good faith (and
for which adequate accruals or reserves have been established on the
Balance Sheet);
(iii) Liens which do not materially detract from the value or
materially interfere with any present or intended use of such property or
assets; or
(iv) Liens created pursuant to the Credit Agreement.
(b) There are no developments affecting any such property or assets
(whether real or personal) pending or, to the knowledge of Nebco threatened,
which might materially detract from the value of such property or assets, or
materially interfere with any present or intended use of any such property or
assets.
(c) All such leases of real property are valid, binding and enforceable in
accordance with their respective terms and there does not exist under any such
lease any material default by Nebco or its Subsidiaries beyond the expiration of
any applicable notice or grace period.
(d) The plant and equipment owned by Nebco and/or its Subsidiaries is in
good operating condition, and is reasonably adequate and suitable for its
present and intended uses and, in the case of plants, buildings and other
structures is structurally sound, subject to ordinary wear and tear and except
for such instances where the failure to meet such operating condition or
structural soundness would not have a Material Adverse Effect.
SECTION 3.14. Insurance Coverage. All insurance policies and fidelity bonds
relating to the assets, business, operations, employees, officers or directors
of Nebco or any of its Subsidiaries are in full force and effect, and such
policies and bonds are of the type and in amounts customarily carried by Persons
conducting businesses similar to those of Nebco and each of its Subsidiaries.
There is no material claim by Nebco or any of its Subsidiaries pending under any
of such policies or bonds as to which coverage has been questioned, denied or
disputed by the underwriters of such policies or bonds or in respect of which
such underwriters have reserved their rights. All premiums payable under all
such policies and bonds have been paid timely and Nebco and its Subsidiaries
have otherwise complied fully with the terms and conditions of all such policies
and bonds. Nebco does not know of any threatened termination of,
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premium increase with respect to, or material alteration of coverage under, any
of such policies or bonds. Except as disclosed in Schedule 3.14, Nebco and its
Subsidiaries shall after the Closing continue to have coverage under such
policies and bonds with respect to events occurring prior to the Closing.
SECTION 3.15. Licenses and Permits. Each license, franchise, permit or
other similar authorization affecting, or relating in any way to, the assets or
business of Nebco and its Subsidiaries (the "Permits") is valid and in full
force and effect and none of the Permits will be terminated or impaired or
become terminable, in whole or in part, as a result of the transactions
contemplated hereby, except to the extent that the failure of the
representations contained in this Section 3.15 to be true is not, and could not
reasonably be expected to be, a Material Adverse Effect.
SECTION 3.16. Due Diligence Documents; Disclosure. The documents or
information delivered to the Buyers in connection with the Transactions and the
AmeriServe Documents, taken as a whole, contain no untrue statement of a
material fact and do not omit to state any material fact necessary in order to
make the statements contained therein not misleading, which untrue statements or
omissions could reasonably be expected to be material to the Buyers' evaluation
of such information. The financial projections relating to Nebco, any of its
Subsidiaries, AmeriServe and the combination thereof delivered to the Buyers are
made in good faith and are based upon reasonable assumptions, and neither Nebco
nor ▇▇▇▇▇▇▇ is aware of any fact or set of circumstances that would lead it to
believe that such projections are incorrect or misleading in any material
respect.
SECTION 3.17. Finders' Fees. Except as previously disclosed to the Buyers,
there is no investment banker, broker, finder or other intermediary which has
been retained by or is authorized to act on behalf of ▇▇▇▇▇▇▇, Nebco or any of
its Subsidiaries who might be entitled to any fee or commission in connection
with any of the Transactions.
SECTION 3.18. Labor Matters. Nebco and its Subsidiaries are in compliance
with all currently applicable laws respecting employment and employment
practices, terms and conditions of employment and wages and hours, and are not
engaged in any unfair labor practice, except for such failures to comply which
or such engagements which, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect. Except as set forth on
Schedule 3.11, there is no unfair labor practice complaint pending or, to the
knowledge of Nebco, threatened against Nebco or any of its Subsidiaries before
the National Labor Relations Board.
SECTION 3.19. Environmental Matters. (a) Except as disclosed on Schedule
3.19 and except for liabilities (whether accrued, contingent, absolute,
determined,
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determinable or otherwise) resulting from the matters set forth in clauses
3.19(a)(ii), 3.19(a)(iii) and 3.19(a)(iv) below that in the aggregate do not
exceed $1,000,000:
(i) no notice, notification, demand, request for information,
citation, summons, complaint or order has been issued, no complaint has
been filed, no penalty has been assessed and no investigation or review is
pending, or to ▇▇▇▇▇▇▇'▇ or to Nebco's knowledge, threatened by any
governmental entity or other Person with respect to any matters relating to
Nebco or any of its Subsidiaries and relating to or arising out of any
Environmental Law;
(ii) no polychlorinated biphenyls, radioactive material, lead, lead
paint, asbestos, asbestos-containing material or underground storage tank
(active or abandoned) is or has been present at any property now or
previously owned, leased or operated by Nebco or any of its Subsidiaries;
(iii) no Hazardous Substance has been discharged, disposed of, dumped,
injected, pumped, deposited, spilled, leaked, emitted or released at, on or
under any property now or previously owned, leased or operated by Nebco or
any of its Subsidiaries;
(iv) there are no facts, conditions or set of circumstances which
could result in or be the basis for any liability of Nebco or any of its
Subsidiaries arising under or relating to any Environmental Law;
(v) Nebco and its Subsidiaries are in material compliance with all
Environmental Laws and have obtained all permits, licenses and
authorizations necessary or proper for the business of Nebco and its
Subsidiaries as currently conducted relating to or required by
Environmental Laws; and
(vi) no property now or previously owned, leased or operated by Nebco
or any of its Subsidiaries or, to the knowledge of Nebco, any property to
which Nebco or any of its Subsidiaries has, directly or indirectly,
transported or arranged for the transportation of any Hazardous Substances
is listed or, to the knowledge of Nebco, proposed for listing, on the
National Priorities List promulgated pursuant to CERCLA, on CERCLIS (as
defined in CERCLA) or on any similar federal, state or foreign list of
sites requiring investigation or clean-up.
(b) There has been no environmental investigation, study, audit, test,
review or other analysis conducted by Nebco or which Nebco has in its possession
in relation to the current or prior business of Nebco or any of its Subsidiaries
or any property or
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facility now or previously owned or leased by Nebco or any of its Subsidiaries
which has not been delivered to the Buyers at least five days prior to the date
hereof.
(c) Neither Nebco nor any of its Subsidiaries owns or leases or has owned
or leased any property in New Jersey constituting an "industrial establishment"
as defined in the Industrial Site Recovery Act, N.J. Stat Section 13: 1K-6 et
seq.
(d) For purposes of this Section 3.19, the terms "Nebco" and "Subsidiary"
shall include any entity which is, in whole or in part, a predecessor of Nebco
or such Subsidiary.
SECTION 3.20. Employee Benefit Plans. (a) No Employee Plan and no employee
plan or arrangement maintained or contributed to by any ERISA Affiliate of Nebco
is (i) a Multiemployer Plan, (ii) a Title IV Plan or (iii) maintained in
connection with any trust described in Section 501(c)(9) of the Code. No
"prohibited transaction", as defined in Section 406 of ERISA or Section 4975 of
the Code, has occurred with respect to any Employee Plan or any other employee
benefit plan or arrangement maintained by Nebco, or any ERISA Affiliate of Nebco
which is covered by Title I of ERISA, excluding transactions effected pursuant
to a statutory or administrative exemption. Each Employee Plan is and has been
maintained in substantial compliance with its terms and with the requirements
prescribed by any and all statutes, orders, rules and regulations, including but
not limited to ERISA and the qualification and other provisions of the Code,
which are applicable to such plan, except where the failure to do so would not
have a Material Adverse Effect.
(b) Each Benefit Arrangement has been maintained in substantial compliance
with its terms and with the requirements prescribed by any and all applicable
statutes, orders, rules and regulations, except where the failure to do so would
not have a Material Adverse Effect.
(c) Neither Nebco nor any of its ERISA Affiliates has any current or
projected liability in respect of post-employment or post-retirement health or
medical or life insurance benefits for retired or former employees of Nebco or
any of its Subsidiaries, except pursuant to the continuation coverage
requirements of Section 4980B of the Code and Section 601 et seq. of ERISA or
other applicable law.
(d) Except as set forth on Schedule 3.20(d), there has been no amendment
to, written interpretation of or announcement (whether or not written) by Nebco
or any of its ERISA Affiliates relating to, or change in employee participation
or coverage under, any Employee Plan or Benefit Arrangement that would increase
materially the expense of maintaining such Employee Plan or Benefit Arrangement
above the level of the expense incurred in respect thereof for the fiscal year
ended prior to the date hereof.
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(e) Neither Nebco nor any of its ERISA Affiliates has incurred, or
reasonably expects to incur prior to the Closing Date, any material unsatisfied
liability under Title I or any liability under Title IV of ERISA (or any
corresponding section of the Code) arising in connection with the funding or the
termination of, or complete or partial withdrawal from, any plan covered or
previously covered by Title I or Title IV of ERISA, which liability could become
a liability of Nebco or any of its Subsidiaries after the Closing Date.
SECTION 3.21. Meaning of Nebco. Except as otherwise specifically provided,
references to Nebco contained in this Article 3 shall be construed to refer to
Nebco immediately prior to the consummation of the transactions contemplated by
the AmeriServe Documents.
SECTION 3.22. Nebco's Taxes. (a) Nebco and each of its Subsidiaries: (i)
has filed or will file, in accordance with all applicable laws, all Tax returns,
statements, reports and forms (collectively, the "RETURNS") required to be filed
by it with any Taxing Authority on or before the Closing Date (taking into
account any extension of a required filing date) with respect to any Tax period
ending on or before the Closing Date (a "PRE-CLOSING TAX PERIOD"); (ii) will
file all other Returns required to be filed by it when due (taking into account
any extension of a required filing date); (iii) has timely paid all material
Taxes shown as due and payable on the Returns that have been filed by it; (iv)
has not been a member of an affiliated, consolidated, combined or unitary group
other than one of which ▇▇▇▇▇▇▇ or NEHC was the common parent; (v) has provided
the Buyers or their representatives with any tax sharing agreements to which it
is a party; and (vi) after giving effect to the transactions contemplated by the
AmeriServe Documents, Nebco is not a United States real property holding
corporation (a "USRPHC") within the meaning of section 897 of the Internal
Revenue Code of 1986, as amended, nor has it been a USRPHC within 5 years of the
date hereof.
(b) Each Party (as defined below) has, at all times during the period
beginning on (and including) the later of (i) April 14, 1989 or (ii) the date on
which such Party became a member of the ▇▇▇▇▇▇▇ Group and ending on (and
including) the date hereof, (A) acknowledged and acted in a manner consistent
with its status as a party to the Tax sharing agreement dated April 14, 1989 and
signed by ▇▇▇▇▇▇▇, Nebco Distribution of Omaha, Inc., Nebco Distribution of Des
Moines, Inc., Nebco Distribution of Kansas City, Inc., Nebco Distribution of
Minneapolis, Inc. and Wisconsin Concession Supply, Inc. (the "TAX SHARING
AGREEMENT") and (B) treated each of the other Parties as a party to the Tax
Sharing Agreement at all times during such period that such other Party was a
member of the ▇▇▇▇▇▇▇ Group and complied with such Party's obligations to such
other Party under the Tax Sharing Agreement. For purposes of this Section
3.22(b), each of ▇▇▇▇▇▇▇, Nebco and Nebco's Subsidiaries shall be a "PARTY."
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(c) Nebco represents further that (i) the charges, accruals and reserves
for Taxes reflected on the Balance Sheet (excluding any provision for deferred
income taxes) are adequate to cover the Tax liabilities of Nebco and its
Subsidiaries accruing through the date thereof; (ii) all state sales and use Tax
Returns (with the exception of such Returns for Iowa, North Dakota and
Wisconsin), all state income or franchise Tax Returns (with the exception of
such Returns for Minnesota and Wisconsin), and all other Returns filed with
respect to Tax years of Nebco and its Subsidiaries through the Tax year ended
December 31, 1991, have been examined and closed or are Returns with respect to
which the applicable period for assessment under applicable law, after giving
effect to extensions or waivers, has expired; (iii) none of Nebco or any of its
Subsidiaries is delinquent in the payment of any Tax or has requested any
extension of time within which to file any Return and, has not yet filed such
Return; (iv) none of Nebco or any of its Subsidiaries (or any member of any
affiliated, consolidated, combined or unitary group of which Nebco or any of its
Subsidiaries is or has been members) has been granted any extension or waiver of
the statute of limitations period applicable to any Return, which period (after
giving effect to such extension or waiver) has not yet expired; (v) there is no
claim, audit, action, suit, proceeding, or investigation now pending or
threatened against or with respect to Nebco or any of its Subsidiaries in
respect of any Tax or Tax Asset; and (vi) there are no requests for rulings or
determinations in respect of any Tax or Tax Asset pending between Nebco or any
of its Subsidiaries and any Taxing Authority.
SECTION 3.23. Certain Interests. Except as set forth in Schedule 3.23, no
stockholder, officer or director of Nebco or any of its Subsidiaries or any
relative or Affiliate of such stockholder, officer or director (a) has any
interest in any material property, real or personal, tangible or intangible,
including licenses, agencies or Intellectual Property Rights, used in or
pertaining to the business of Nebco or any of its Subsidiaries (b) has any
material interest in any business, corporate or otherwise, that is in
competition with the business of Nebco or any of its Subsidiaries or (c) has
received any loan or advance, other than for amounts not exceeding $100,000 in
the aggregate, that remains unpaid as of the date hereof or is otherwise a
debtor of, or made any loan to or advance to or is otherwise a creditor of,
Nebco or any of its Subsidiaries. Since the Balance Sheet Date, there has not
been any asset sold by Nebco or any of its Subsidiaries to, or to Nebco or any
of its Subsidiaries by, any stockholder.
SECTION 3.24. Charter and Bylaws. The New Nebco Charter, and the New Nebco
Bylaws have been approved and adopted by all required action on the part of the
shareholders and the board of directors of Nebco. The New Nebco Charter shall be
filed with the Secretary of State of the State of Delaware on or before the
Closing Date, and such document and the New Nebco Bylaws will be in full force
and effect on the Closing Date.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE BUYERS
Each New Buyer, severally as to itself and not jointly, represents and
warrants to Nebco as of the date hereof that:
SECTION 4.01. Existence and Power. Such Buyer is either a limited
partnership, limited liability company or a corporation duly organized, validly
existing and in good standing, to the extent applicable, under the laws of its
jurisdiction of organization.
SECTION 4.02. Authorization. The execution, delivery and performance by
such Buyer of each Transaction Document to which it is a party are within the
powers (corporate, partnership or otherwise) of such Buyer and have been duly
authorized by all necessary action on the part of such Buyer. This Agreement
constitutes (and, when executed and delivered by such Buyer, each other
Transaction Document to which such Buyer is a party will constitute) a valid and
binding agreement of such Buyer enforceable against such Buyer in accordance
with its terms, except as such validity, enforceability and binding effect may
be limited by bankruptcy, insolvency, moratorium and other laws affecting
creditors rights generally and by equitable principles.
SECTION 4.03. Governmental Authorization. The execution, delivery and
performance by such Buyer of each of the Transaction Documents to which it is a
party require no material action by or in respect of, or material filing with,
any governmental body, agency or official.
SECTION 4.04. Non-contravention. The execution, delivery and performance by
such Buyer of each of the Transaction Documents to which it is a party do not
and will not (i) violate the organizational documents of such Buyer or (ii)
violate any applicable material law, rule, regulation, judgment, injunction,
order or decree.
SECTION 4.05. Financing. Such Buyer has sufficient cash, commitments,
available lines of credit or other sources of immediately available funds to
enable it to make payment of the applicable Purchase Prices and any other
amounts to be paid by it hereunder.
SECTION 4.06. Purchase for Investment. (a) Such Buyer is purchasing its
portion of the Securities to be sold pursuant hereto for investment for its own
account and not with a view to, or for sale in connection with, any distribution
or resale thereof in violation of applicable law. Such Buyer (either alone or
together with its advisors)
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has sufficient knowledge and experience in financial and business matters so as
to be capable of evaluating the merits and risks of its investments in the
Securities and is capable of bearing the economic risks of such investment.
(b) Such Buyer understands that the Securities to be sold to such Buyer
shall bear a legend substantially as follows:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD EXCEPT
IN COMPLIANCE THEREWITH. THIS SECURITY IS ALSO SUBJECT TO AND HAS THE
BENEFIT OF AN INVESTORS AGREEMENT (AS HEREIN DEFINED), COPIES OF WHICH MAY
BE OBTAINED UPON REQUEST FROM THE COMPANY.
SECTION 4.07. Litigation. There is no action, suit, investigation or
proceeding pending against, or to the knowledge of such Buyer threatened against
or affecting, such Buyer before any court or arbitrator or any governmental
body, agency or official which in any manner challenges or seeks to prevent,
enjoin, alter or materially delay the Transactions.
SECTION 4.08. Finders' Fees. Except as previously disclosed to Nebco, there
is no investment banker, broker, finder or other intermediary which has been
retained by or is authorized to act on behalf of such Buyer who might be
entitled to any fee or commission from Nebco upon consummation of the
Transactions.
ARTICLE 5
COVENANTS OF THE BUYERS AND NEBCO
Each New Buyer and Nebco agree that:
SECTION 5.01. Best Efforts. Subject to the terms and conditions of this
Agreement, such Buyer and Nebco will use their best efforts to take, or cause to
be taken, all actions and to do, or cause to be done, all things necessary or
desirable under applicable laws and regulations to consummate the Transactions.
Such Buyer and Nebco agree, and Nebco agrees to cause each of its Subsidiaries,
to execute and deliver such other documents, certificates, agreements and other
writings and to take such other actions as may be necessary or desirable in
order to consummate or implement expeditiously the Transactions.
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SECTION 5.02. Certain Filings. Such Buyer and Nebco shall cooperate with
each other (i) in determining whether any action by or in respect of, or filing
with, any governmental body, agency, official or authority is required, or any
actions, consents, approvals or waivers are required to be obtained from parties
to any material contracts, in connection with the consummation of the
Transactions and (ii) in taking such actions or making any such filings,
furnishing information required in connection therewith and seeking timely to
obtain any such actions, consents, approvals or waivers.
SECTION 5.03. Public Announcements. Nebco, DLJMB Partners and DLJMB II
shall agree upon the timing and content of the initial press release or public
statement describing the Transaction Documents or the Transactions and shall
consult with each other before issuing any press release or making any public
statement with respect to the Transaction Documents or the Transactions and,
except as may be required by applicable law or any listing agreement with any
national securities exchange, shall not issue any such press release or make any
such public statement prior to such consultation.
SECTION 5.04. Allocation of Value. If, at any time, an allocation of value
among or between the Senior Preferred Stock, the Junior Preferred Stock and the
Warrants is required or otherwise deemed appropriate or advisable by Nebco, then
Nebco (or its representative) shall determine such allocation; provided that any
such allocation shall be subject to the review and approval of the DLJ Entities,
which approval shall not be unreasonably withheld by the DLJ Entities.
ARTICLE 6
▇▇▇▇▇▇▇ OBLIGATIONS
SECTION 6.01. ▇▇▇▇▇▇▇'▇ Taxes. (a) ▇▇▇▇▇▇▇ and each of its subsidiaries:
(i) has filed or will file, in accordance with all applicable laws, all Tax
Returns required to be filed by or with respect to ▇▇▇▇▇▇▇ or any of its
subsidiaries with any Taxing Authority on or before the Closing Date (taking
into account any extension of a required filing date) with respect to any
Pre-Closing Tax Period; (ii) will file all other Returns required to be filed by
or with respect to ▇▇▇▇▇▇▇ or any of its subsidiaries when due (taking into
account any extension of a required filing date); (iii) has timely paid all
material Taxes shown as due and payable on the Returns that have been filed; and
(iv) has not been a member of an affiliated, consolidated, combined or unitary
group other than one of which ▇▇▇▇▇▇▇ or NEHC was the common parent.
(b) ▇▇▇▇▇▇▇ represents further that (i) the charges, accruals and reserves
for Taxes reflected on the Balance Sheet (excluding any provision for deferred
income taxes)
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are adequate to cover the Tax liabilities of Nebco and its Subsidiaries accruing
through the date thereof; (ii) all Returns filed with respect to Tax years of
▇▇▇▇▇▇▇ through the Tax year ended December 31, 1992 have been examined and
closed or are Returns with respect to which the applicable period for assessment
under applicable law, after giving effect to extensions or waivers, has expired;
(iii) ▇▇▇▇▇▇▇ is not delinquent in the payment of any Tax and has not requested
any extension of time within which to file any Return and not yet filed such
Return; (iv) ▇▇▇▇▇▇▇ has not been granted any extension or waiver of the statute
of limitations period applicable to any Return, which period (after giving
effect to such extension or waiver) has not yet expired; (v) there is no claim,
audit, action, suit, proceeding, or investigation now pending or threatened
against or with respect to ▇▇▇▇▇▇▇ in respect of any Tax or Tax Asset and (vi)
there are no requests for rulings or determinations in respect of any Tax or Tax
Asset pending between ▇▇▇▇▇▇▇ and any Taxing Authority.
(c) For purposes of this Section 6.0l,the term "TAX" (and with the
correlative meaning, "TAXES") shall have the same meaning as set forth in
Section 1.01(a), with the term "▇▇▇▇▇▇▇" substituted for "NEBCO"; provided,
that for purposes of Section 6.01(b)(i), "TAX" and "TAXES" shall have the
meaning set forth in Section 1.01(a), without the substitution described in the
first part of this sentence being made.
SECTION 6.02. Nebco's Current Tax Sharing Agreement. (a) For purposes of
construing and applying the provisions of this Agreement (including, without
limitation, Sections 6.02(b), 6.03 and 6.04 and clause (iii) of the definition
of "TAXES" set forth in Section 1.01(a)), Nebco and each Subsidiary of Nebco
shall be treated as if Nebco or such Subsidiary, as the case may be, were a
party to the Tax Sharing Agreement at all times during the period beginning on
(and including) the later of (i) January 1, 1989 or (ii) the date on which Nebco
or such Subsidiary became a member of the ▇▇▇▇▇▇▇ Group and ending on (and
including) the day before the Closing Date; provided, that this Section 6.02(a)
shall not create any inference to the effect that Nebco and its Subsidiaries
were not, at any time prior to the Closing Date, parties to such Agreement.
(b) Effective as of the Closing Date, the Tax Sharing Agreement and any
other Tax sharing agreements or arrangements to which Nebco or any of its
Subsidiaries is a party shall be terminated. Beginning on the Closing Date,
neither Nebco nor any of its Subsidiaries shall have any further rights or
liabilities thereunder. As of the Closing Date, this Agreement shall be the sole
Tax sharing agreement relating to each of Nebco and its Subsidiaries for all
Pre-Closing Tax Periods. Between the date hereof and the Closing Date, neither
▇▇▇▇▇▇▇ nor Nebco or any of its Subsidiaries shall amend the Tax Sharing
Agreement or enter into any agreement (other than this Agreement) superseding
the Tax Sharing Agreement.
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SECTION 6.03. Tax Sharing. (a) Following the Closing Date, Nebco and its
Subsidiaries shall pay to ▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇ shall pay to Nebco and its
Subsidiaries, such amounts on such dates with respect to Pre-Closing Tax Periods
as would have been required under the Tax Sharing Agreement if such Agreement
had remained in effect beyond the Closing Date; provided, however, that to the
extent that the provisions of the Tax Sharing Agreement and this Agreement are
inconsistent, this Agreement shall be controlling.
(b) On September 30, 1997 with respect to 1996 and September 30, 1998 with
respect to the period beginning on January 1, 1997 and ending on the Closing
Date (the "STUB PERIOD"), ▇▇▇▇▇▇▇ shall deliver to Nebco and the Buyers a
schedule (each such schedule, a "TRUE-UP SCHEDULE") showing the total amount
owed to ▇▇▇▇▇▇▇ by Nebco and each of Nebco's Subsidiaries with respect to
federal income Taxes (such amount, the "TAX SHARING AMOUNT") for, respectively,
1996 and the Stub Period. The Tax Sharing Amount shall be computed according to
the rules set forth in Sections 6.03(e) and 6.03(f) and without taking into
account any payments made prior to the date of such computation to ▇▇▇▇▇▇▇ by
Nebco and its Subsidiaries with respect to such Taxes. Each True-Up Schedule
shall set forth, in reasonable detail, the method used and calculations made in
computing the Tax Sharing Amount.
(c) A True-Up Schedule duly delivered by ▇▇▇▇▇▇▇ shall be binding on the
parties to this Agreement unless, within 30 days after delivery to Nebco or a
Buyer of such True-Up Schedule, Nebco or such Buyer notifies ▇▇▇▇▇▇▇ of an
objection thereto. In the event that Nebco or any Buyer timely notifies ▇▇▇▇▇▇▇
of such an objection, ▇▇▇▇▇▇▇ and Nebco or such Buyer shall negotiate in good
faith regarding such objection and, if they cannot reach an agreement within 15
days after notice has been given by Nebco or such Buyer, shall jointly retain an
Accounting Referee to render a decision on the merits of such objection. The
parties to this Agreement shall use their best efforts to cause the Accounting
Referee to render its decision within 15 days after being retained. ▇▇▇▇▇▇▇
shall pay 50 percent of the costs and expenses of such Accounting Referee, and
the other party to the dispute resulting in appointment of the Accounting
Referee shall pay the remainder of such Referee's costs and expenses. Any
decision reached by the Accounting Referee shall be binding on the parties to
this Agreement.
(d) Within 30 days after the Tax Sharing Amount for 1996 or for the Stub
Period, as the case may be, is finally determined pursuant to Section 6.03(c),
Nebco (acting on its own behalf and on behalf of its Subsidiaries) shall pay
▇▇▇▇▇▇▇ the excess of (i) such Tax Sharing Amount over (ii) the sum of all
amounts previously paid by Nebco and its Subsidiaries to ▇▇▇▇▇▇▇ with respect to
federal income Taxes for the period in question; provided, however, that if the
amount specified in clause (ii) exceeds the Tax Sharing Amount, ▇▇▇▇▇▇▇ shall
(within such 30-day period) pay such excess to Nebco.
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(e) For purposes of Sections 6.03(b), 6.03(c) and 6.03(d), the Tax Sharing
Amount shall be computed by applying the rules of the Tax Sharing Agreement as
if such Agreement had remained in effect beyond the Closing Date; provided,
however, that the Tax Sharing Amount shall be computed without taking into
account (I) the restoration of any deferred gain or loss under Treasury
Regulations Sections 1.1502-13 or -13T or (II) the inclusion in income of any
excess loss account under Treasury Regulations Section 1.1502-19, if the
restoration or inclusion described in clause (I) or clause (II) occurs as a
result of the consummation of the transactions described in Article 2 of this
Agreement.
(f) Notwithstanding any other provision of this Section 6.03, if, as of the
date on which the True-Up Schedule for 1996 is delivered to Nebco, the sum of
(i) the Tax Sharing Amount for 1996, computed without regard to this Section
6.03(f) (the "UNADJUSTED TAX SHARING AMOUNT") and (ii) the excess, if any, of
(A) all payments made by Nebco and its Subsidiaries of Taxes that are
attributable to Pre-Closing Tax Periods (or portions thereof) ending on or
before the Balance Sheet Date, over (B) the aggregate amount of any payments
made to ▇▇▇▇▇▇▇ by Nebco and its Subsidiaries with respect to federal income
Taxes for 1996 (such excess of (A) over (B), the "OTHER PAYMENTS"), is
materially greater than the charges, accruals and reserves for Taxes of Nebco
and its Subsidiaries reflected on the Balance Sheet (the "TAX PROVISION"), then
Nebco and its Subsidiaries shall have no obligation to pay, and shall not be
treated as owing for purposes of this Section 6.03, to ▇▇▇▇▇▇▇ that portion of
the Unadjusted Tax Sharing Amount which, if subtracted from such Amount, would
result in the sum of such Amount and the Other Payments no longer being
materially greater than the Tax Provision. Whether the sum of the Unadjusted Tax
Sharing Amount and the Other Payments is materially greater than the Tax
Provision shall be determined by reference to the amount of the Tax Provision
and not by reference to the business or results of operations of Nebco and its
Subsidiaries or the aggregate amount of assets or liabilities reflected on the
Balance Sheet.
(g) Except as specifically provided in this Agreement, Nebco and its
Subsidiaries shall not make any payment to ▇▇▇▇▇▇▇ (or any other person or
entity other than a Taxing Authority) on account of Taxes attributable to
Pre-Closing Tax Periods at any time after the date hereof.
(h) ▇▇▇▇▇▇▇, Nebco and each Subsidiary of Nebco shall promptly make
available to each other and to any Buyer such documents, records, Returns or
information as may reasonably be requested by, as the case may be, such other
party or such Buyer for purposes of exercising rights under, or complying with
obligations imposed by, this Section 6.03.
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SECTION 6.04. Tax Assets. (a) Subject to Section 6.04(d), if at any time
the ▇▇▇▇▇▇▇ Group uses a Nebco Tax Asset to reduce the Tax liability of the
▇▇▇▇▇▇▇ Group for any Tax period of such Group, then ▇▇▇▇▇▇▇ shall pay to Nebco
an amount equal to the Tax benefit to the ▇▇▇▇▇▇▇ Group resulting from such
Group's use of such Nebco Tax Asset. The Tax benefit to which the preceding
sentence refers shall equal the excess (if any) of (i) the Taxes that would have
been payable by the ▇▇▇▇▇▇▇ Group for the relevant Tax period had the Nebco Tax
Asset in question not been available for use by the ▇▇▇▇▇▇▇ Group (which amount
of Taxes shall be determined without taking into account any other Nebco Tax
Assets) over (ii) the Taxes actually payable by, or taken into account in
determining any adjustment arising on audit of (or made during any other
administrative or judicial proceeding concerning the Tax liability of), the
▇▇▇▇▇▇▇ Group in respect of such Tax period. Payment of the amount of such
benefit shall be made within 90 days after, as applicable, (y) the filing of a
Return (or claim for refund) by or on behalf of the ▇▇▇▇▇▇▇ Group with respect
to the relevant Tax period which reflects the utilization of the Nebco Tax Asset
in question by such Group or (z) a Taxing Authority (or other governmental body)
adjusts the amount of the Tax liability of the ▇▇▇▇▇▇▇ Group for the Tax period
in question during an audit (or other administrative or judicial proceeding) in
a manner which takes into account such Nebco Tax Asset.
(b) If a Nebco Tax Asset that arises in a Tax period (or portion thereof)
beginning after the Closing Date must, under applicable law, be carried back to
a Tax period of the ▇▇▇▇▇▇▇ Group, ▇▇▇▇▇▇▇ shall promptly file an amended Return
or claim for refund reflecting the utilization of such Nebco Tax Asset by the
▇▇▇▇▇▇▇ Group in such Tax period.
(c) To the extent that a Nebco Tax Asset (i) is taken into account in
determining the amount of any payment which Nebco or a Subsidiary of Nebco, as
the case may be, is required to make to ▇▇▇▇▇▇▇ pursuant to Section 6.03(d) or
(ii) is (or has been) taken into account in determining the amount of any
payment that Nebco or such Subsidiary, as the case may be, makes (or has made)
to ▇▇▇▇▇▇▇ pursuant to Sections 2(a) and 4 of the Tax Sharing Agreement prior to
the Closing Date, ▇▇▇▇▇▇▇ shall not be required to make a payment to Nebco
pursuant to Section 6.04(a) in respect of such Nebco Tax Asset.
(d) If, after ▇▇▇▇▇▇▇ makes a payment to Nebco pursuant to Section 6.04(a)
in respect of a Tax Asset of Nebco or its Subsidiaries, there is a Final
Determination which results in (i) a disallowance or a reduction of such Tax
Asset or (ii) a decrease in the amount of the Tax benefit of the ▇▇▇▇▇▇▇ Group
resulting from its use of such Tax Asset, then Nebco shall repay to ▇▇▇▇▇▇▇
within 90 days of such event described in (i) or (ii) any amount which would not
have been payable to Nebco pursuant to Section 6.04(a) had the amount of the
benefit been determined in light of such event. Nebco shall hold ▇▇▇▇▇▇▇
harmless for any penalty or interest payable by any member of the ▇▇▇▇▇▇▇ Group
as a
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result of any such event. Any such amount shall be paid by Nebco to ▇▇▇▇▇▇▇
within 90 days of the payment by ▇▇▇▇▇▇▇ of any such interest or penalty.
(e) For purposes of this Section 6.04, "NEBCO TAX ASSET" shall mean any Tax
Asset of Nebco or any of its Subsidiaries that (i) is stated on the Balance
Sheet or in the notes thereto (without taking into account any valuation
allowance or similar adjustment to the gross amount of such Asset) or, although
not stated on the Balance Sheet or in the notes thereto, is in existence as of
the Balance Sheet Date, or (ii) arises after the Balance Sheet Date.
(f) Each of ▇▇▇▇▇▇▇, Nebco and Nebco's Subsidiaries shall promptly provide
such information as is reasonably requested by Nebco or a Buyer regarding any
Nebco Tax Asset or the utilization of Nebco Tax Assets by the ▇▇▇▇▇▇▇ Group. In
the event that there is a dispute between any of the parties to this Agreement
relating to any Nebco Tax Asset or the application of the rules of this Section
6.04, such parties shall jointly appoint an Accounting Referee to resolve such
dispute and shall use their best efforts to cause such Accounting Referee to
render its decision within 30 days after being appointed. Any Buyer or Buyers
which are parties to a dispute necessitating the appointment of an Accounting
Referee pursuant to this Section 6.04(f) shall pay 50 percent of the costs and
expenses of such Referee, and the portion of the costs or expenses of such
Referee not paid by a Buyer or Buyers shall be borne in equal amounts by each of
the other parties to such dispute. Any decision reached by the Accounting
Referee pursuant to this Section 6.04(f) shall be binding on the parties to this
Agreement.
SECTION 6.05. Apportionment of Section 382 Limitation. In the event that
(i), as of the date hereof, and without taking into account the transactions
described in Article 2 of this Agreement, the utilization of any Tax Asset of
Nebco or a Subsidiary of Nebco is subject to a limitation under Section 382 or
383 of the Code, the Regulations issued thereunder or Treasury Regulations
Sections 1.1502-91T, -92T, -93T, -94T, -95T, -96T, - 98T or -99T and (ii)
▇▇▇▇▇▇▇ is permitted under Treasury Regulations Section 1.1502- 95T to elect to
apportion, on or following the Closing Date, such limitation to (A) Nebco, (B) a
Subsidiary of Nebco or (C), in the event that Nebco and/or any one or more of
its Subsidiaries are members of a "loss subgroup" (as defined in Treasury
Regulations Section 1.1502-91 T(d)), to such loss subgroup (the entity or
entities referred to in clause (A), (B) or (C), as applicable, the "Recipient"),
▇▇▇▇▇▇▇ shall timely file a valid election pursuant to such Treasury Regulation
to apportion to the Recipient a portion of such limitation, which portion shall
be computed according the rules set forth in the remainder of this Section 6.05.
With respect to the "value element" (as defined in Treasury Regulations Section
1.1502-95T(c)(2)(i)) of the limitation to which the preceding sentence refers,
▇▇▇▇▇▇▇ shall elect to apportion to the Recipient an amount equal to the product
of (A) the equity value of the Recipient (which equity value shall be calculated
in accordance with the principles of Sections 382 and 383 of the Code, the
Treasury
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Regulations issued thereunder and, if the Recipient is a loss subgroup, Treasury
Regulations Section 1.1502-93T) and (B) the applicable "long-term tax-exempt
rate" (as defined in Section 382(f) of the Code). With respect to the
"adjustment element" (as defined in Treasury Regulations Section
1.1502-95T(c)(2)(ii)) of such limitation, ▇▇▇▇▇▇▇ shall elect to apportion to
the Recipient an amount corresponding to the portion of the value element of
such limitation described in the previous sentence which has been carried
forward from prior Tax periods (provided, that the amount of such carryforward
shall be determined by taking into account only items of income, gain, loss,
expense or credit accrued of the Recipient and by applying the principles of
Section 382(b)(2) of the Code). To the extent that (i) the law of any state,
local or foreign jurisdiction contains provisions similar to those to which the
first sentence of this Section 6.05 refers and (ii) such provisions are
applicable with respect to any Tax Asset of Nebco or any of its Subsidiaries,
▇▇▇▇▇▇▇ shall take such actions to preserve the utility of such Tax Assets as
correspond to the actions described in the preceding sentences of this Section
6.05.
SECTION 6.06. Indemnification. ▇▇▇▇▇▇▇ agrees to indemnify the Buyers and
Nebco for any liability imposed under Treasury Regulations Section 1.1502-6 or
any state or local equivalent as a result of Nebco's membership in the
affiliated group of corporations of which ▇▇▇▇▇▇▇ is the common parent.
ARTICLE 7
CONDITIONS TO CLOSING
SECTION 7.01. Conditions to Obligations of Nebco and the Buyers. The
obligations of Nebco and the Buyers to consummate the Closing are subject to the
satisfaction of the following conditions:
(i) No provision of any applicable law or regulation and no judgment,
injunction, order or decree shall prohibit the consummation of the Closing.
(ii) The closing of the transactions contemplated by the AmeriServe
Documents shall have been consummated simultaneously herewith in accordance
with their terms and without any waiver of any condition to closing
thereunder, except for such changes to the terms or waivers of conditions
to closing as are acceptable to the New Buyers.
(iii) Each of the Transaction Documents shall have been executed and
delivered by the parties thereto and each such Transaction Document shall
be in full force and effect; provided that this condition shall benefit and
be enforceable only by parties who have executed and delivered the
Transaction Documents to which they are to be parties.
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SECTION 7.02. Conditions to Obligations of the Buyers. The obligation of
the Buyers to consummate the Closing is subject to the satisfaction of the
following further conditions:
(i) (A) The representations and warranties of Nebco contained in this
Agreement shall be true and correct in all material respects at and as of
the Closing Date (it being understood that where any such representation
and warranty already includes a material adverse effect or materiality
exception, no further materiality exception is to be permitted by this
Section 7.02(a)(i)(A) and that any representation and warranty made only as
of specific date shall be true and correct only as of such date), (B) Nebco
shall have performed in all material respects all of its obligations
hereunder required to be performed by it on or prior to the Closing Date
and (C) each Buyer shall have received a certificate from Nebco signed by
an executive officer of Nebco to the foregoing effect.
(ii) (A) The representations and warranties of ▇▇▇▇▇▇▇ contained in
this Agreement shall be true and correct in all material respects at and as
of the Closing Date (it being understood that where any such representation
and warranty already includes a materiality exception, no further
materiality exception is to be permitted by this Section 7.02(a)(ii)(A) and
that any representation and warranty made only as of specific date shall be
true and correct only as of such date), (B) ▇▇▇▇▇▇▇ shall have performed in
all material respects all of its obligations hereunder required to be
performed on or prior to the Closing Date and (C) each Buyer shall have
received a certificate signed by an executive officer of ▇▇▇▇▇▇▇ to the
foregoing effect.
(iii) Each Buyer shall have received all documents they may reasonably
request relating to the existence of the other parties hereto and the
Subsidiaries of such other parties and the authority of the other parties
for the Transaction Documents, all in form and substance reasonably
satisfactory to each of the Buyers.
(iv) There shall not be threatened, instituted or pending any action
or proceeding by any Person before any court or governmental authority or
agency, domestic or foreign, (A) seeking to restrain or prohibit the
ownership or operation by any of Nebco or its Subsidiaries of all or any
material portion of the PFS Business or the business or assets of Nebco or
AmeriServe or any Subsidiary of Nebco or to compel Nebco to dispose of all
or any material portion of the PFS Business or the business or assets of
Nebco or AmeriServe or any Subsidiary of Nebco, (B) seeking to impose or
confirm material limitations on the ability of any Buyer or any of its
Affiliates effectively to
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38
exercise full rights of ownership of its Securities or (C) seeking to
require divestiture by any Buyer or any of its Affiliates of any of its
Securities.
(v) There shall not be any action taken, or any statute, rule,
regulation, injunction, order or decree proposed, enacted, enforced,
promulgated, issued or deemed applicable to the purchase of their
Securities, by any court, government or governmental authority or agency,
domestic or foreign, that, in the reasonable judgment of any Buyer, has a
significant possibility of, directly or indirectly, resulting in any of the
consequences referred to in clauses (A) through (C) above of Section
7.02(a)(iv) hereof.
(vi) The New Nebco Charter shall have been duly delivered for filing
at the office of the Secretary of State of the State of Delaware, and such
Charter and the New Nebco Bylaws shall be in full force and effect.
(vii) Nebco shall have paid in full all reasonable fees and expenses,
including any out-of-pocket expenses, of the Buyers then due and required
to be paid by Nebco in connection with the Transactions, including in
accordance with Section 10.03 hereof.
(viii) The Buyers shall have received an opinion of Wachtell, Lipton,
▇▇▇▇▇ & ▇▇▇▇, counsel for Nebco and ▇▇▇▇▇▇▇, in form and substance
satisfactory to such Buyers.
(ix) Nebco shall have delivered a certification to the effect that
Nebco is not nor has it been within five years of the date hereof a "UNITED
STATES REAL PROPERTY HOLDING CORPORATION" as defined in Section 897 of the
Code.
(x) The board of directors of each of Nebco and AmeriServe shall have
appointed one designee of each of DLJMB Partners and DLJMB II as a director
pursuant to the Investors Agreement.
(xi) The Credit Agreement shall have been executed and delivered by
the parties thereto, the conditions to closing and the conditions to
effectiveness thereof shall have been satisfied, AmeriServe shall have
borrowed at least $205,000,000 thereunder and the Credit Agreement shall be
in full force and effect.
(xii) All outstanding shares of AmeriServe Senior Preferred Stock
shall have been duly converted into shares of common stock, par value
$10.00 per share, of AmeriServe or cancelled.
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(xiii) Since the Balance Sheet Date there shall have been no
disruption or adverse change in the financial or capital markets which
DLJMB II, in its reasonable discretion, deems material in connection with
any of the Transactions or Transaction Documents.
(xiv) A Certificate of Designation and Amendment to the Restated
Certificate of Incorporation whereby the Senior Non-Convertible Preferred
Stock of Nebco shall be redesignated as Junior Non-Convertible Preferred
Stock of Nebco ranking junior to the Junior Preferred Stock shall have been
duly delivered for filing at the office of the Delaware Secretary of State
of the State of Delaware and such certificate shall be in full force and
effect.
(xv) All outstanding 12.5% Senior Secured Notes of Nebco shall have
been redeemed in full and the indenture relating thereto shall have been
terminated, satisfied and discharged.
(xvi) Receipt of a sideletter from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ in the form
attached hereto as Annex J.
SECTION 7.03. Conditions to Obligations of Nebco. The obligation of
Nebco to consummate the Closing is subject to the satisfaction of the
following further conditions:
(i) (A) The representations and warranties of each of the Buyers
contained in this Agreement or in any certificate or other writing
delivered by such Buyer pursuant hereto or thereto shall be true in all
material respects at and as of the Closing Date (it being understood that
where any such representation and warranty already includes a material
adverse effect or materiality exception, no further materiality exception
is to be permitted by this Section 7.03(a)(i)(A) and that any
representation and warranty made only as of specific date shall be true and
correct only as of such date), (B) each of the Buyers shall have performed
in all material respects all of its obligations hereunder required to be
performed by such Buyer at or prior to the Closing Date and (C) Nebco shall
have received a certificate signed by an executive officer in the case of a
Buyer which is a corporation and an executive officer of a general partner
in the case of a Buyer which is a limited partnership to the foregoing
effect.
(ii) Nebco shall have received all documents it may reasonably request
relating to the existence of each Buyer and the authority of each Buyer for
the Transaction Documents, all in form and substance reasonably
satisfactory to Nebco.
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ARTICLE 8
SURVIVAL; INDEMNIFICATION
SECTION 8.01. Survival. The representations and warranties of the parties
hereto contained in this Agreement or in any certificate or other writing
delivered pursuant hereto or in connection herewith shall survive the Closing
until the date which is eighteen (18) months after the Closing Date; provided
that representations and warranties contained in Section 3.22 and Article 6
shall survive until expiration of the statute of limitations applicable to the
matters covered thereby (giving effect to any waiver, mitigation or extension
thereof), if later. Notwithstanding the preceding sentence, any representation
or warranty in respect of which indemnity may be sought under this Agreement
shall survive the time at which it would otherwise terminate pursuant to the
preceding sentence, if notice of the inaccuracy or breach thereof giving rise to
such right of indemnity shall have been given to the party against whom such
indemnity may be sought prior to such time.
SECTION 8.02. Indemnification. (a) Nebco and ▇▇▇▇▇▇▇ hereby jointly and
severally indemnify each Buyer against, and agree to hold each Buyer harmless
from, any and all damage, loss, liability and expense (including without
limitation reasonable expenses of investigation and reasonable attorneys' fees
and expenses in connection with any action, suit or proceeding) ("DAMAGES")
incurred or suffered by such Buyer arising out of any misrepresentation or
breach of warranty, covenant or agreement made or to be performed by Nebco or
▇▇▇▇▇▇▇ pursuant to any of the Transaction Documents to which it is a party.
Notwithstanding the foregoing, liability of ▇▇▇▇▇▇▇ under Article 6 shall be
governed by Article 6 and Section 8.03.
(b) Each Buyer severally and not jointly hereby indemnifies Nebco against
and agrees to hold it harmless from any and all Damages incurred or suffered by
Nebco arising out of any misrepresentation or breach of warranty, covenant or
agreement made or to be performed by such Buyer pursuant to this Agreement.
SECTION 8.03. Procedures. The party seeking indemnification under Section
6.06 or 8.02 (the "INDEMNIFIED PARTY") agrees to give prompt notice to the party
against whom indemnity is sought (the "INDEMNIFYING PARTY") of the assertion of
any claim, or the commencement of any suit, action or proceeding in respect of
which indemnity may be sought under such Section. The Indemnifying Party may,
and at the request of the Indemnified Party shall, participate in and control
the defense of any such suit, action or proceeding at its own expense. The
Indemnifying Party shall not be liable under Section 6.06 or 8.02 for any
settlement effected without its consent of any claim, litigation or proceeding
in respect of which indemnity may be sought hereunder.
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SECTION 8.04. Waiver of Subrogation. ▇▇▇▇▇▇▇ hereby waives any and all
rights of indemnification, contribution or subrogation against Nebco with
respect to any indemnification payment made by ▇▇▇▇▇▇▇ pursuant to this Article
8.
ARTICLE 9
TERMINATION
SECTION 9.01. Grounds for Termination. This Agreement may be terminated
at any time prior to the Closing:
(i) by mutual written agreement of Nebco and the Buyers;
(ii) by any of Nebco or the Buyers if the Closing shall not
have been consummated on or before July 31, 1997; or
(iii) by either Nebco on the one hand or any of the Buyers on
the other hand if there shall be any law or regulation that makes
consummation of the transactions contemplated hereby illegal or
otherwise prohibited or if consummation of the transactions
contemplated hereby would violate any nonappealable final order, decree
or judgment of any court or governmental body having competent
jurisdiction.
The party desiring to terminate this Agreement shall give notice of
such termination to the other parties.
SECTION 9.02. Effect of Termination. If this Agreement is terminated as
permitted by Section 9.01, such termination shall be without liability of any
party (or any stockholder, director, officer, employee, agent, consultant or
representative of such party) to the other parties to this Agreement; provided
that if such termination shall result from the willful failure of any party to
fulfill a condition to the performance of the obligations of the other parties,
failure to perform a covenant of this Agreement or breach by any party hereto of
any representation or warranty or agreement contained herein, such party shall
be fully liable for any and all Damages incurred or suffered by the other
parties as a result of such failure or breach. The provisions of Section 10
shall survive any termination hereof pursuant to Section 9.01.
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ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including facsimile transmission)
and shall be given,
If to any Buyer except DLJ International Partners, C.V., DLJ Offshore
Partners, C.V. or DLJ Offshore Partners II, C.V., to such Buyer, at:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Fax: ▇▇▇-▇▇▇-▇▇▇▇
If to DLJ International Partners, C.V., or DLJ Offshore Partners, C.V.,
or DLJ Offshore Partners II, C.V., to:
DLJ Offshore Management N.V.
▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ Antilles
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
MeesPierson Trust (Curacao) N.V.
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43
if to Nebco or ▇▇▇▇▇▇▇, to:
▇▇▇▇▇▇▇ Industries, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ 0. ▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
All such notices, requests and other communications shall be deemed received on
the date of receipt by the recipient thereof if received prior to 5:00 p.m. in
the place of receipt and such day is a business day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to have
been received until the next succeeding business day in the place of receipt.
SECTION 10.02. Amendments and Waivers. (a) Any provision of this
Agreement may be amended or waived prior to the Closing Date if, but 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 failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 10.03. Expenses. All costs and expenses incurred in connection
with the Transaction Documents shall be paid by the party incurring such cost or
expense, except that if the Closing shall occur, Nebco shall be obligated to pay
all of the fees and expenses of the Buyers (including but not limited to its
fees and expenses of counsel and other outside professionals).
SECTION 10.04. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective
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44
successors and assigns; provided that no party may assign, delegate or otherwise
transfer any of its rights or obligations under this Agreement without the
consent of each other party hereto.
SECTION 10.05. Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of New York, without regard to
the conflicts of law rules of such state.
SECTION 10.06. Jurisdiction. Except as otherwise expressly provided in
this Agreement, any suit, action or proceeding seeking to enforce any provision
of, or based on any matter arising out of or in connection with, this Agreement
or the transactions contemplated hereby may be brought in the United States
District Court for the Southern District of New York or any other New York State
court sitting in New York City, and each of the parties hereby consents to the
jurisdiction of such courts (and of the appropriate appellate courts therefrom)
in any such suit, action or proceeding and irrevocably waives, to the fullest
extent permitted by law, any objection which it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding in any such court or
that any such suit, action or proceeding which is brought in any such court has
been brought in an inconvenient forum. Process in any such suit, action or
proceeding may be served on any party anywhere in the world, whether within or
without the jurisdiction of any such court. Without limiting the foregoing, each
party agrees that service of process on such party as provided in Section 10.01
shall be deemed effective service of process on such party.
SECTION 10.07. Counterpart; Third Party Beneficiaries. This Agreement
may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. No provision of this Agreement shall confer upon any Person other
than the parties hereto any rights or remedies hereunder.
SECTION 10.08. Entire Agreement. This Agreement, the Investors
Agreement, the Warrants, the Certificate of Designations of the Senior Preferred
Stock, the Certificate of Designations of the Junior Preferred Stock, constitute
the entire agreement among the parties with respect to the subject matter of
this Agreement and such other agreements and supersedes all prior agreements and
understandings, both oral and written, between the parties with respect to the
subject matter of this Agreement and such other agreements. No representation,
inducement, promise, understanding, condition or warranty not set forth herein
has been made or relied upon by either party hereto. Neither this Agreement nor
any provision hereof shall confer upon any Person other than the parties hereto
any rights or remedies hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
DLJ MERCHANT BANKING PARTNERS, L.P.
By DLJ MERCHANT BANKING, INC.
Managing General Partner
By: ______________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
DLJ INTERNATIONAL PARTNERS, C.V.
By DLJ MERCHANT BANKING, INC.
Advisory General Partner
By: ______________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
DLJ OFFSHORE PARTNERS, C.V.
By DLJ MERCHANT BANKING, INC.
Advisory General Partner
By: ______________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
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46
DLJ MERCHANT BANKING FUNDING, INC.
By: ______________________________
Name:
Title:
DLJ CAPITAL CORPORATION
By: ______________________________
Name:
Title:
SPROUT GROWTH II, L.P.
By DLJ CAPITAL CORPORATION,
General Partner
By: ______________________________
Name:
Title:
SPROUT CEO FUND, L.P.
By DLJ CAPITAL CORPORATION,
General Partner
By: ______________________________
Name:
Title:
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47
DLJ MERCHANT BANKING PARTNERS II, L.P.
By DLJ MERCHANT BANKING II, INC.,
Managing General Partner
By: ______________________________
Name:
Title:
DLJ MERCHANT BANKING PARTNERS II-A, L.P.
By DLJ MERCHANT BANKING II, INC.,
Managing General Partner
By: ______________________________
Name:
Title:
DLJ OFFSHORE PARTNERS II, C.V.
By DLJ MERCHANT BANKING II, INC.,
Advisory General Partner
By: ______________________________
Name:
Title:
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48
DLJ DIVERSIFIED PARTNERS, L.P.
By DLJ DIVERSIFIED PARTNERS, INC.,
Managing General Partner
By:_____________________________________
Name:
Title:
DLJ DIVERSIFIED PARTNERS-A, L.P.
By DLJ DIVERSIFIED PARTNERS, INC.,
Managing General Partner
By:_____________________________________
Name:
Title:
DLJ MILLENNIUM PARTNERS, L.P.
By DLJ MERCHANT BANKING II, INC.,
Managing General Partner
By:_____________________________________
Name:
Title:
DLJMB FUNDING II, INC.
By:_____________________________________
Name:
Title:
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49
DLJ FIRST ESC LLC
By DLJ LBO PLANS MANAGEMENT CORPORATION,
Manager
By:_____________________________________
Name:
Title:
DLJ EAB PARTNERS, L.P.
By DLJ LBO PLANS MANAGEMENT CORPORATION,
General Partner
By:_____________________________________
Name:
Title:
UK INVESTMENT PLAN 1997 PARTNERS
By ▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇, INC.,
General Partner
By:_____________________________________
Name:
Title:
NEBCO ▇▇▇▇▇ HOLDING COMPANY
By:_____________________________________
Name: A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
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50
▇▇▇▇▇▇▇ INDUSTRIES, INC.
By:_____________________________________
Name: A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
45
51
ANNEX A
SENIOR PREFERRED STOCK
PURCHASED
BY THE NEW BUYERS
SENIOR PREFERRED AGGREGATE PURCHASE
NEW BUYER STOCK ($25/SHARE) PRICE
---------------------------------------- ----------------- ------------------
DLJ Merchant Banking Partners II, L.P. 1,511,821 $37,795,525
DLJ Merchant Banking Partners II-A, L.P. 60,208 $ 1,505,200
DLJ Offshore Partners II, C.V. 74,343 $ 1,858,575
DLJ Diversified Partners, L.P. 88,388 $ 2,209,700
DLJ Diversified Partners-A, L.P. 32,824 $ 820,600
DLJ Millennium Partners, L.P. 29,212 $ 730,300
DLJMB Funding II, Inc. 292,416 $ 7,310,400
DLJ EAB Partners, L.P. 6,788 $ 169,700
UK Investment Plan 1997 Partners 40,000 $ 1,000,000
DLJ First ESC LLC 264,000 $ 6,600,000
--------- -----------
TOTAL: 2,400,000 $60,000,000
========= ===========
52
ANNEX B
JUNIOR PREFERRED STOCK
PURCHASED
BY THE NEW BUYERS
SHARES OF
JUNIOR PREFERRED AGGREGATE PURCHASE
NEW BUYER STOCK ($25/SHARE) PRICE
--------------------------------------- ---------------- ------------------
DLJ Merchant Banking Partners II, L.P. 1,385,836 $34,645,900
DLJ Merchant Banking Partners II-A, L.P. 55,190 $ 1,379,750
DLJ Offshore Partners II C.V. 68,148 $ 1,703,700
DLJ Diversified Partners, L.P. 81,022 $ 2,025,550
DLJ Diversified Partners-A, L.P. 30,089 $ 752,225
DLJ Millennium Partners, L.P. 26,778 $ 669,450
DLJMB Funding II, Inc. 268,048 $ 6,701,200
DLJ EAB Partners, L.P. 6,222 $ 155,550
UK Investment Plan 1997 Partners 36,667 $ 916,675
DLJ First ESC LLC 242,000 $ 6,050,000
--------- -----------
TOTAL: 2,200,000 $55,000,000
========= ===========
53
ANNEX C
WARRANTS TO BE ISSUED TO THE NEW BUYERS
CLASS A WARRANT
NEW BUYER SHARES
DLJ Merchant Banking Partners II, L.P. 1,830
DLJ Merchant Banking Partners II-A, L.P. 73
DLJ Offshore Partners II, ▇.▇. ▇▇
▇▇▇ Diversified Partners, L.P. 107
DLJ Diversified Partners-A, L.P. 40
DLJ Millennium Partners, L.P. 35
DLJMB Funding II, Inc. 354
DLJ EAB Partners, L.P. 8
DLJ First ESC LLC 319
UK Investment Plan 1997 Partners 48
-----
TOTAL: 2,904
=====
54
ANNEX D
12.5% SENIOR SECURED NOTES TO BE REDEEMED
PRINCIPAL AMOUNT AGGREGATE
OF REDEMPTION
ORIGINAL BUYER NOTES AMOUNT
----------------------------------- ----------------- -----------------
DLJ Merchant Banking Partners, L.P. $ 10,987,112.43 $ 12,387,206.27
DLJ International Partners, C.V. 4,902,528.69 5,527,260.66
DLJ Offshore Partners, C.V. 284,250.47 320,472.66
DLJ Capital Corporation 47,128.86 53,134.52
Sprout Growth II, L.P. 462,770.78 521,741.92
Sprout CEO Fund, L.P. 6,576.56 7,414.61
DLJ Merchant Banking Funding, Inc. 3,903,264.32 4,400,660.26
DLJ First ESC LLC 2,704,979.00 3,049,675.17
Orkla ASA 8,472,222.22 9,551,842.21
------------- -------------
TOTAL: 31,770,833.33 35,819,408.28
============= =============
55
Schedule 3.05 Owners of Capital Stock
OWNERS OF CAPITAL STOCK
56
Schedule 3.06 Subsidiaries
SUBSIDIARIES
57
Schedule 3.09 Material Liabilities
MATERIAL LIABILITIES
58
Schedule 3.10 Material Contracts
MATERIAL CONTRACTS
59
Schedule 3.11 Litigation
LITIGATION
60
Schedule 3.14 Insurance
INSURANCE
61
Schedule 3.15 Licenses and Permits
LICENSES AND PERMITS
62
Schedule 3.19 Environmental Matters
ENVIRONMENTAL MATTERS
63
Schedule 3.20 Employee Plans; Benefit Arrangements
EMPLOYEE PLANS; BENEFIT ARRANGEMENTS
64
Schedule 3.23 Certain Interests
CERTAIN INTERESTS
65
Schedule 6.2 Tax Representations
TAX REPRESENTATIONS
66
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
DLJ MERCHANT BANKING PARTNERS, L.P.
By DLJ MERCHANT BANKING, INC.
Managing General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
DLJ INTERNATIONAL PARTNERS, C.V.
By DLJ MERCHANT BANKING, INC.
Advisory General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
DLJ OFFSHORE PARTNERS, C.V.
By DLJ MERCHANT BANKING, INC.
Advisory General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
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67
DLJ MERCHANT BANKING FUNDING, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Secretary
DLJ CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary and Treasurer
SPROUT GROWTH II, L.P.
By DLJ CAPITAL CORPORATION,
General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary and Treasurer
SPROUT CEO FUND, L.P.
By DLJ CAPITAL CORPORATION,
General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary and Treasurer
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68
DLJ MERCHANT BANKING PARTNERS II, L.P.
By DLJ MERCHANT BANKING II, INC.,
Managing General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
DLJ MERCHANT BANKING PARTNERS II-A, L.P.
By DLJ MERCHANT BANKING II, INC.,
Managing General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
DLJ OFFSHORE PARTNERS II, C.V.
By DLJ MERCHANT BANKING II, INC.,
Advisory General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
41
69
DLJ DIVERSIFIED PARTNERS, L.P.
By DLJ DIVERSIFIED PARTNERS, INC.,
Managing General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
DLJ DIVERSIFIED PARTNERS-A, L.P.
By DLJ DIVERSIFIED PARTNERS, INC.,
Managing General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
DLJ MILLENNIUM PARTNERS, L.P.
By DLJ MERCHANT BANKING II, INC.,
Managing General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
DLJMB FUNDING II, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Attorney-in-Fact
DLJ FIRST ESC LLC
42
70
By DLJ LBO PLANS MANAGEMENT CORPORATION,
Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Attorney-in-Fact
DLJ EAB PARTNERS, L.P.
By DLJ LBO PLANS MANAGEMENT CORPORATION,
General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Attorney-in-Fact
UK INVESTMENT PLAN 1997 PARTNERS
By ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, INC.,
General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Attorney-in-Fact
NEBCO ▇▇▇▇▇ HOLDING COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer and President
43
71
▇▇▇▇▇▇▇ INDUSTRIES, INC.
By: /s/ A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Financial Officer
and Treasurer
44
72
▇▇▇▇▇▇▇ INDUSTRIES, INC.
By: /s/ A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Financial Officer
and Treasurer
44