ASSET PURCHASE AGREEMENT

Asset Purchase Agreement

You are currently viewing:

This Asset Purchase Agreement involves

FARMER BROTHERS CO | SARA LEE CORPORATION | Saramar, LLC | SL Realty, LLC

. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here.

Title: ASSET PURCHASE AGREEMENT
Governing Law: Illinois Date: 2/10/2009
Industry: Food Processing Law Firm: Sonnenschein Nath Sector: Consumer/Non-Cyclical

ASSET PURCHASE AGREEMENT, Parties: farmer brothers co , sara lee corporation , saramar llc , sl realty llc

Exhibit 10.1

EXECUTION VERSION

ASSET PURCHASE AGREEMENT

BY AND AMONG

SARA LEE CORPORATION,

SARAMAR, LLC

AND

FARMER BROS. CO.

DECEMBER 2, 2008

TABLE OF CONTENTS

		Page

ARTICLE I. PURCHASED ASSETS; ASSUMED LIABILITIES		1

1.1.	Purchased Assets	1
1.2.	Limitations on Assignability	5
1.3.	Excluded Assets	5
1.4.	Assumption of Liabilities	8
1.5.	Excluded Liabilities	9
1.6.	DISCLAIMER OF WARRANTIES	9

ARTICLE II. PURCHASE PRICE		10

2.1.	Purchase Price	10
2.2.	Allocation	11
2.3.	Prorations	11
2.4.	Income Taxes	12
2.5.	Closing Costs, Transfer Taxes and Fees	12
2.6.	Post-Closing Consumable Inventory and Prepaid Expense Adjustment	13
2.7.	Promotional Expense Proration	15

ARTICLE III. CLOSING		16

3.1.	The Closing	16
3.2.	Seller Parties’ Closing Deliveries	16
3.3.	Buyer’s Closing Deliveries	19

ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF SELLER		20

4.1.	Corporate Organization	20
4.2.	No Violation	21
4.3.	Authority	21
4.4.	Realty	22
4.5.	Compliance with Laws	22
4.6.	Financial Statements and Condition	22
4.7.	Consents and Approvals	23
4.8.	Absence of Certain Changes or Events	23
4.9.	Payment of Taxes	23
4.10.	Owned Real Property	24
4.11.	Leased Real Property	24
4.12.	Tangible Personal Property	25

4.13.	Vehicles; Routes; Personal Property Leases; Prepaid Expenses; Promotional Accruals	25
4.14.	Litigation	26
4.15.	Intellectual Property	26
4.16.	Permits	27
4.17.	Contracts	27
4.18.	No Other Agreement	29
4.19.	Employee Plans	30
4.20.	Labor and Employee Matters	31
4.21.	Hazardous Substances	32
4.22.	Brokers’ Fees and Commissions	33
4.23.	Consumable Inventory	33
4.24.	Certain Payments	33
4.25.	Customers	34
4.26.	LOI Compliance	34

ARTICLE V. REPRESENTATIONS AND WARRANTIES OF BUYER		34

5.1.	Corporate Organization	34
5.2.	Authority	34
5.3.	No Violation	35
5.4.	Consents and Approvals	35
5.5.	Brokers’ Fees and Commissions	35
5.6.	Litigation	35
5.7.	Investigation By Buyer	35
5.8.	Availability of Financing	36

ARTICLE VI. COVENANTS		36

6.1.	Conduct of DSD Business Prior to the Closing	36
6.2.	Employees and Employee Benefits	37
6.3.	Access to Information	40
6.4.	Historical Financial Statements	40
6.5.	Public Announcements	42
6.6.	Supplements to Schedules	42
6.7.	Mixed Use Contracts	43
6.8.	Release of Certain Obligations	44
6.9.	Access to Records; Facilities	44
6.10.	Buyer’s Insurance	44
6.11.	Confidentiality Agreement	45
6.12.	Tax Matters	46
6.13.	Use of Names	47
6.14.	Negative Covenant	47

6.15.	IT Carve Out	48
6.16.	Brew Equipment Service; DSD Referral	48
6.17.	Shared Customers	49
6.18.	Limited Non-Competition	49
6.19.	Nonsolicitation of Certain Employees	49
6.20.	Accounts Receivable	50
6.21.	Removal of Brew Equipment Inventory	51
6.22.	Return of Consumable Inventory	51
6.23.	Further Assurances	51
6.24.	Buyer’s Pre-Closing Conduct	52
6.25.	Labor Contracts	52
6.26.	Embodiments of DSD Intellectual Property	52
6.27.	Authorized Information	53
6.28.	Buyer Financing	53

ARTICLE VII. CONDITIONS TO CLOSING		54

7.1.	Conditions to Obligations of Buyer	54
7.2.	Conditions to Obligations of the Seller Parties	55

ARTICLE VIII. SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND INDEMNIFICATION		55

8.1.	Survival of Representations and Warranties	55
8.2.	Seller’s Indemnification	56
8.3.	Buyer’s Indemnification	57
8.4.	Indemnification Procedures	58
8.5.	Nature of Other Liabilities	60
8.6.	Indemnification Limits and Restrictions	60
8.7.	Additional Limitations of Liability	61
8.8.	Exclusive Remedy	62

ARTICLE IX. TERMINATION AND ABANDONMENT		62

9.1.	Methods of Termination	62
9.2.	Procedure and Effect of Termination	63

ARTICLE X. MISCELLANEOUS		63

10.1.	Notices	63
10.2.	Amendments; Waivers	64
10.3.	Successors and Assigns	64
10.4.	Construction; Interpretation; Certain Terms	64
10.5.	Severability	65

iii

10.6.	Counterparts	65
10.7.	Entire Agreement	65
10.8.	Governing Law; Consent to Jurisdiction; Venue	65
10.9.	Expenses	65
10.10.	Third-Party Beneficiaries	65
10.11.	Knowledge	66
10.12.	Title; Risk of Loss	66
10.13.	Waivers of Trial by Jury	66

ARTICLE XI. DEFINED TERMS		66

SCHEDULES AND EXHIBITS

Schedule

Schedule 1.1(a)-1: Certain DSD Business Marks

Schedule 1.1(a)-2: Certain DSD Business Marks

Schedule 1.1(c): Brew Equipment Inventory Methodology

Schedule 1.1(f): Personal Property Leases

Schedule 1.1(g)-1: Certain Included Contracts

Schedule 1.1(g)-2: Labor Contracts

Schedule 1.3(w): Other Excluded Assets

Schedule 2.1: Wire Transfer Instructions

Schedule 2.6(a): Historic Inventory Statement

Schedule 4.2: Consents

Schedule 4.4: Realty

Schedule 4.5: Compliance with Laws

Schedule 4.6-1: Seller’s Accounting Principles

Schedule 4.6-2: Financial Statements Exceptions

Schedule 4.6-3: DSD Business Definition

Schedule 4.7: Consents and Approvals

Schedule 4.8(a): Certain Developments

Schedule 4.8(b): Ordinary Course

Schedule 4.9: Payment of Taxes

Schedule 4.10(b): Subleasing Arrangements

Schedule 4.11: Leased Real Property

Schedule 4.12-1: Tangible Personal Property Liens

Schedule 4.12-2: Certain Tangible Personal Property

Schedule 4.13-1: Routes

Schedule 4.13-2: Owned Vehicles

Schedule 4.13-3: Certain Personal Property Leases

Schedule 4.13-4: Certain Personal Property Lease Exceptions

Schedule 4.13-5: Prepaid Expenses

Schedule 4.13-6: Promotional Accruals

Schedule 4.14: Litigation; Claims

Schedule 4.15: Intellectual Property

Schedule 4.16-1: Permits

Schedule 4.16-2: Compliance with Permits

Schedule 4.17(a): Material Contracts

Schedule 4.17(b): Enforceable Contracts

Schedule 4.19(a): Employee Plans

Schedule 4.19(c): Qualified Plans

Schedule 4.20(a): Labor Issues

Schedule 4.20(b): Information about Hired Personnel

Schedule 4.21: Hazardous Substances

Schedule 4.21(b): Third Party Reports

Schedule 4.23: Consumable Inventory

Schedule 4.26: LOI Compliance

Schedule 6.7: Mixed Use Contracts

Schedule 7.1(d): Permitted Exceptions

Schedule 7.1(e): Required Consents

Exhibit		Description

A		Facilities
B		Form of Note
C		Form of Security Agreement
D		Form of Seller Trademark License Agreement
E		Form of Buyer Trademark License Agreement
F		Form of Superior Trademark License Agreement
G		Form of Seller Transition Services Agreement
H		Form of Cappuccino and Cocoa Transition Agreement
I		Form of Buyer Co-Pack Agreement
J		Form of Seller Co-Pack Agreement
K		Form of Liquid Coffee Distribution Agreement
L		Form of Green Coffee and Tea Purchase Agreement
M		Form of Formula License Agreement
N		Form of Foreign Investment in Real Property Tax Act Affidavit
O		Form of Option Agreement
P		Historical Financial Statements

vii

ASSET PURCHASE AGREEMENT

This Asset Purchase Agreement (“ Agreement ”), dated December 2, 2008, is made by and among Sara Lee Corporation, a Maryland corporation (“ Seller ”), Saramar, LLC, a Delaware limited liability company (“ Saramar ”) (Seller and Saramar are sometimes herein collectively referred to as the “ Seller Parties ” and each as a “ Seller Party ”), and Farmer Bros. Co., a Delaware corporation (“ Buyer ”). Capitalized terms used herein have the definitions referred to, or set forth in, Article XI .

RECITALS:

A. The Seller Parties are engaged in, among other things, the DSD Business.

B. Seller owns, directly or indirectly, one hundred percent (100%) of the issued and outstanding ownership interests of Saramar.

C. On October 24, 2008, Seller formed SL Realty, LLC, a wholly owned subsidiary in the State of Delaware (“ Realty ”). Seller formed Realty for the sole purpose of transferring to Realty, and causing Realty to lease and operate the Leased Real Property which Seller wishes to transfer, and Buyer wishes to acquire, as part of the transactions contemplated by this Agreement.

D. Seller engages in the manufacturing, processing, packaging, marketing, distributing and selling of coffee, tea and related products through its DSD Business, NSO Business and other businesses, each of which uses different methods to distribute product (which in some instances is the same or similar product) to customers, many of which purchase product from more than one of these businesses.

E. The Seller Parties desire to sell to Buyer, and Buyer desires to purchase from the Seller Parties, the assets of the DSD Business identified in Section 1.1 , and the Seller Parties desire to delegate to Buyer and Buyer desires to assume the Assumed Liabilities, in each case on the terms and subject to the conditions hereinafter set forth.

Accordingly, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows.

ARTICLE I.
PURCHASED ASSETS; ASSUMED LIABILITIES

1.1. Purchased Assets . At the Closing and in reliance upon the representations, warranties and agreements and subject to the conditions set forth in this Agreement, the Seller Parties shall sell, assign, transfer, convey and deliver to Buyer, free and clear of all liens, Claims, options, charges, security interests, pledges, rights, mortgages or other encumbrances whatsoever (collectively, “ Liens ”), other than Permitted Liens, and Buyer shall purchase from the Seller Parties, for the Purchase Price, all of the Seller Parties’ right, title and interest in the following

items, other than any Excluded Assets (all of such assets, properties and rights being acquired hereby are collectively called the “ Purchased Assets ”):

(a) DSD Intellectual Property . (i) The Trademarks and Trade Names listed on Schedule 1.1(a)-1 attached hereto, including domain names incorporating the same, in each case whether registered or not, and wherever such rights exist, subject to the terms of the Buyer Trademark License Agreement and the Superior Trademark License Agreement, together with the right to recover for any past infringement thereof; (ii) all Seller Parties’ rights in the United States to the Trademarks and Trade Names listed on Schedule 1.1(a)-2 attached hereto, whether registered or not, together with the right to recover for any past infringement thereof (clauses (i) and (ii) being collectively called the “ DSD Business Marks ”), (iii) the Houston Software, and (iv) all Other Intellectual Property of the Seller Parties that relates only to the DSD Business or the DSD Business Marks, whether registered or not, the right to recover for any past infringement thereof, and the right to protection of interests therein (clauses (i) through (iv) being collectively called the “ DSD Intellectual Property ”);

(b) Tangible P&E . (i) All Owned Vehicles, (ii) all furniture, fixtures, equipment, machinery, spare parts, tools, supplies and other tangible personal property, other than Owned Vehicles, owned by Seller which at Closing are located at, or in transit to, the Transferred Facilities or on the Vehicles, (iii) all desktop computers which at Closing are located at or in transit to the Transferred Facilities, and all laptop computers and hand held computer devices which at Closing are in the possession of Hired Personnel, and (iv) the AS 400 computer server located at the Houston Plant (all of the foregoing, other than Consumable Inventory and Brew Equipment, whether or not exclusively related to the DSD Business, being collectively called the “ Tangible P&E ”). For the avoidance of doubt, Tangible P&E shall not include desktop computers located at Seller’s Downers Grove, IL location;

(c) Brew Equipment Inventory . (i) All Brew Equipment Inventory distributed by the DSD Business to DSD Customers and in the control of or in transit to such customers as of the Closing; (ii) twenty-one percent (21%) (or such greater percentage as Seller may choose to provide to Buyer) of the Brew Equipment Inventory related to Liquid Coffee (it being agreed that such Brew Equipment Inventory shall include both new Machines and Machines which are used/awaiting refurbishment in such proportion as Seller owns such Machines immediately prior to the Closing), which shall consist of (A) 100% of such Brew Equipment Inventory located on the Vehicles as of the Closing and (B) the remainder of such Brew Equipment Inventory to be selected from such Brew Equipment Inventory that is located at or in transit to the Facilities and Seller’s Washington, PA Facility as of the Closing, and (iii) forty-two percent (42%) (or such greater percentage as Seller may choose to provide to Buyer) of the Brew Equipment Inventory that is not related to Liquid Coffee (it being agreed that such Brew Equipment Inventory shall include both new Machines and Machines which are used/awaiting refurbishment in such proportion as Seller owns such Machines immediately prior to the Closing), which shall consist of (A) 100% of such Brew Equipment Inventory located on the Vehicles as of the Closing and (B) the remainder of such Brew Equipment Inventory to be selected from such Brew Equipment

Inventory that is located at or in transit to the Facilities and Seller’s Washington, PA Facility as of the Closing. Any Brew Equipment Inventory to be selected from the Facilities or Seller’s Washington, PA Facility as of the Closing shall be selected based upon the methodology set forth in Schedule 1.1(c) . Upon signing this Agreement, Seller is providing Buyer with a list maintained by Seller in the ordinary course of the DSD Business of the Brew Equipment Inventory located at DSD Customers as of October 2, 2008; provided , Seller makes no representation or warranty regarding the accuracy of such list;

(d) Consumable Inventory . All Consumable Inventory at Closing (i) located at the Transferred Facilities, Buyer Sites or, except for green coffee and tea, in transit to the Transferred Facilities or Buyer Sites regardless of whether related exclusively to the DSD Business; and (ii) in transit to the locations of DSD Customers pursuant to DSD Business transactions (the “ Purchased Consumable Inventory ”);

(e) Real Estate . One hundred percent (100%) of the equity interest of Realty (being all of the equity of Realty) and each parcel of the Owned Real Property;

(f) Personal Property Leases . (i) The leases listed on Schedule 1.1(f) , but only to the extent relating to the Leased Vehicles listed on Schedule 1.1(f) , including all Seller’s rights with respect to such Leased Vehicles, (ii) the leases of other personal property used exclusively by the DSD Business, including all Seller’s rights with respect to the underlying personal property, and (iii) the leases of personal property listed on Schedule 4.13-3 , to the extent related to the DSD Business, including all Seller’s rights with respect to the underlying personal property to the extent related to the DSD Business (clauses (i) through (iii) being collectively called the “ Personal Property Leases ”);

(g) Contracts . All Contracts to which either of the Seller Parties or Realty is a party or is bound which (i) relate exclusively to the DSD Business or the other Purchased Assets (excluding any individual employment contracts, collective bargaining agreements, employee welfare and pension plans, severance plans and related documents); (ii) are Contracts listed in Schedule 1.1(g)-1 , such schedule to include the Sauce Supply Agreement; or (iii) to the extent related to the Hired Personnel, are collective bargaining agreements and other contracts listed on Schedule 1.1(g)-2 (“ Labor Contracts ”) (clauses (i) through (iii) being called the “ DSD Contracts ”) (said DSD Contracts, together with the Real Property Leases and the Personal Property Leases, being collectively called the “ Purchased Contracts ”);

(h) Permits . All Permits relating exclusively to the DSD Business and all Permits relating exclusively to the Transferred Facilities (regardless of whether the Transferred Facilities relate exclusively to the DSD Business), to the extent such Permits are transferable and to the extent not transferred to Realty prior to the Closing;

(i) Mixed Use Contracts . The benefits arising after the Closing Date under the Mixed Use Contracts to the extent such benefits are related to the DSD Business, all pursuant to the terms and conditions of Section 6.7 ;

(j) Books and Records . All (i) business records, tangible data, documents, files, DSD Customer lists, supplier lists, sales records (but in the case of Shared Customers, relating only to DSD Business transactions), business and marketing plans, creative materials, advertising, promotional materials, price lists, returned goods records, blueprints, specifications, designs, drawings, plans, operation or maintenance manuals, bids, invoices, sales literature, and all other books and records (collectively, “ Information ”), in each case which relate exclusively to the DSD Business or DSD Business transactions (but excluding (A) all Tax returns and all worksheets, notes, files or documents primarily related thereto, wherever located, (B) all documents prepared in connection with the transactions contemplated by this Agreement and all minute books and corporate records of the Seller Parties, (C) all Information of the Seller Parties which is not related exclusively to the DSD Business or DSD Business transactions, it being agreed, however, that (i) all Information relating to Shared Customers to the extent such Information relates to DSD Business transactions shall be included in the Purchased Assets, and (ii) to the extent any Seller Party possesses Information which relates to the DSD Business and any other business operated by such Seller Party, Buyer shall have access to the portion of such Information relating exclusively to the DSD Business or DSD Business transactions to the extent set forth in Section 6.9(b) , (D) all Information which is more than three (3) years old other than any blueprints, specifications, designs, drawings, plans and operation or maintenance manuals related exclusively to the Tangible P&E or the Transferred Facilities; it being agreed, however, that Buyer shall have access to such Information to the extent set forth in Section 6.9(b) , and (E) all management information systems (other than the Houston Software and the assets described in Section 1.1(b) , subject to Buyer’s right to use the systems as described in Section 6.15 ) and (ii) personnel records relating to Hired Personnel who become employees of Buyer at Closing (collectively, the “ Books and Records ”);

(k) Telephone Numbers . All telephone numbers, facsimile numbers, and white- and yellow-page listings related only to the Transferred Facilities and cell phone accounts of the Hired Personnel maintained by Seller;

(l) Goodwill . All goodwill associated with the DSD Business and DSD Intellectual Property (including goodwill generated both with Exclusive Customers and Shared Customers to the extent related to DSD Business transactions);

(m) Prepaid Expenses . All prepaid expenses related solely to the DSD Business and characterized as such on the Books and Records in a manner consistent with Seller’s past practices and the Accounting Principles, including deposits held under Purchased Contracts (“ Prepaid Expenses ”), subject to adjustment under Section 2.1 ;

(n) Warranties . To the extent assignable to Buyer and subject to Section 1.3(u) below, all of the Seller Parties’ rights under or pursuant to all product and service warranties solely to the extent relating to or arising in connection with the Purchased Assets or operation of the DSD Business; and

(o) Closing Routes . The Closing Routes.

1.2. Limitations on Assignability . Subject to Section 1.4(b) , to the extent that any of the Purchased Assets are not assignable without the consent of a third party, neither this Agreement, nor any of the instruments or documents executed and delivered in connection herewith or contemplated hereby, shall constitute an assignment or assumption thereof, or attempted assignment or attempted assumption thereof, if such assignment or attempted assignment, or assumption or attempted assumption, would constitute a breach thereof. If there are assignment consents that are not obtained by the Seller Parties by the Closing Date, the Seller Parties shall use commercially reasonable efforts (but Seller Parties shall not be required to pay any third party in exchange for such consent) to obtain all such consents as soon as reasonably practicable after the Closing Date and thereafter assign to Buyer such non-assignable Purchased Assets. Following any such assignment, such assets shall be deemed Purchased Assets and the liabilities thereunder (to the extent provided herein) shall be deemed Assumed Liabilities for purposes of this Agreement. After the Closing and prior to obtaining any required consent, the Seller Parties shall cooperate with Buyer in any reasonable arrangement designed to provide Buyer with the benefits of the non-assignable Purchased Assets and Buyer shall perform all corresponding liabilities and obligations of Seller Parties relating thereto to the extent the same would have been Assumed Liabilities hereunder had the consent been obtained as of the Closing.

1.3. Excluded Assets . The “ Excluded Assets ” shall consist of all assets, properties, rights and interests not included in the definition of the term “Purchased Assets.” Without limiting the foregoing, and without creating any implication that an asset or property would be a Purchased Asset if not set forth below, the Excluded Assets shall include the following, together with any assets, Claims, causes of action, choses in action, rights of recovery or rights of set-off of any kind against any Person arising out of or relating to any of the following:

(a) Retained Coffee Food Service Business . The Coffee Food Service Business other than the DSD Business;

(b) Liquid Coffee Concentrate Business . Seller’s business of manufacturing, processing, packaging, marketing, distributing and selling to any customer, by any means of delivery or distribution, coffee in the form of liquid coffee concentrate and related products, including milk and chocolate (such liquid coffee concentrate and related products being called “ Liquid Coffee ” and said business being called the “ Liquid Coffee Business ”), including the Douwe Egberts brand and related products (other than liquid coffee Machines distributed in DSD Business transactions); provided that Buyer will be entitled to distribute and sell Liquid Coffee pursuant to the terms of the Liquid Coffee Distribution Agreement;

(c) Certain Tangible Personal Property . All furniture, fixtures, equipment, desktop computers, machinery, spare parts, tools, supplies and other tangible personal property which at Closing are not located at or in transit to a Transferred Facility or on any Vehicle (other than (A) the Owned Vehicles, (B) laptop computers and hand held computer devices which at Closing are in the possession of any Hired Personnel, and (C) the AS 400 computer server located at the Houston Plant, it being understood that the items in clauses (A) through (C) hereof shall be included in the Purchased Assets);

(d) Certain Brew Equipment Inventory . All Brew Equipment Inventory which is not part of the Purchased Assets.

(e) Excluded Contracts . All Contracts, including Mixed Use Contracts (other than those which are specifically Purchased Contracts) and Contracts for the purchase of green coffee, tea, liquid coffee concentrate, cappuccino and cocoa products, Machines and Spare Parts, and Contracts relating to software and information technology services or products, and Contracts marked with an asterisk (*) on Schedule 4.17(a) (it being understood that this clause (e) shall not limit the rights of Buyer under Section 1.1(i) );

(f) Cash and Cash Equivalents and Deposits . All cash, bank accounts, cash equivalents and other similar types of investments, certificates of deposit, U.S. Treasury bills and other marketable securities and all advances and deposits other than Prepaid Expenses included within the meaning of the Purchased Assets;

(g) Receivables; Etc . All accounts receivable and other receivables, billed and unbilled, and all negotiable instruments, or other instruments and chattel paper, as are payable to any Seller Party, and all Claims for refund or credit, including Tax refunds and any other Claims not part of the Purchased Assets;

(h) Insurance . All insurance policies, programs, reserves and related bonds of any nature (and any dividends or claims payable in respect thereof), including those covering the DSD Business prior to the Closing;

(i) Permits . All Permits not relating exclusively to the DSD Business (other than Permits exclusively relating to the Transferred Facilities, regardless of whether such Transferred Facilities are exclusively related to the DSD Business) and all Permits not transferable to Buyer. Permits that are Excluded Assets shall include all franchise, Tax, sales and use Permits of the Seller Parties;

(j) DSD Management Systems . Other than the Houston Software and the assets related to the management information systems described in Section 1.1(b) , (all of which constitute part of the Purchased Assets), the management information systems and related services utilized at any of the Facilities (subject to Buyer’s right to use the systems described in Section 6.15 ) (it being understood, however, that Seller shall have obligations to provide certain

IT services to Buyer following the Closing Date pursuant to the terms of the Seller Transition Services Agreement);

(k) Centralized Services . All administrative and corporate services of Seller, all services related to any business or operation of Seller or any of its Affiliates in addition to the DSD Business (it being understood, however, that Seller has obligations to provide certain services to Buyer following the Closing Date pursuant to the terms of the Seller Transition Services Agreement);

(l) Employee Plans . All Employee Plans and all rights and interests under (including those of sponsor and administrator, as applicable), and all assets of, any employee benefit plan maintained by Seller or any of its Affiliates for the benefit of employees which include, but are not limited to, the Hired Personnel;

(m) Cappuccino and Cocoa; Formulas and Blends . The cappuccino and cocoa recipes and all coffee and other formulas and blends of products sold by the DSD Business; provided that Buyer will be entitled to distribute and sell certain of Seller’s cocoa and cappuccino products pursuant to the terms of the Cappuccino and Cocoa Transition Agreements and shall have the right to use certain coffee, tea and other related product formulas set forth on Exhibit A of the Formula License Agreement which were used by Seller in the DSD Coffee Business or manufactured in the Houston Plant prior to the Closing Date, pursuant to the terms of the Formula License Agreement;

(n) Sauce Business . The Sauce Business other than the DSD Sauce Business;

(o) Retained Claims . Any and all Claims and rights to recovery of the Seller Parties against any Person, whether now existing or arising in the future, to the extent related to or arising from or in connection with the DSD Business prior to the Closing Date (other than as provided in Section 1.1(a) ), the Excluded Assets, or the Excluded Liabilities;

(p) Agreement Rights . The Seller Parties’ rights under this Agreement and any Additional Documents;

(q) Real Property . The property which is subject to the Option Agreement and all Facilities other than Transferred Facilities;

(r) Excluded Intellectual Property . All Trademarks, Trade Names and Other Intellectual Property including rights to recover for past infringement thereof, to the extent that such Trademarks, Trade Names and Other Intellectual Property are not DSD Intellectual Property. Without limiting the foregoing, (i) the Douwe Egberts Trade Name, related Trademarks and related Other Intellectual Property, and (ii) the Suntipt Trade Name, related Trademarks, and related Other Intellectual Property outside of the United States as well as domain names relating to the Suntipt Trade Name;

(s) Excluded Goodwill . All goodwill associated with the businesses of Seller other than the DSD Business and DSD Intellectual Property (including goodwill generated with Shared Customers to the extent not related to DSD Business transactions);

(t) Websites . All of Seller’s websites, including each such site’s content, look and feel, verbiage and images, but not including any domain names or DSD Intellectual Property (subject to the Buyer Trademark License Agreement and the Superior Trademark License Agreement) which are part of the Purchased Assets, it being understood that Buyer operates or will operate one or more websites using the domain names owned by Buyer which may contain information of a similar subject matter as one or more of Seller’s websites;

(u) Certain Warranty Rights . All rights under or pursuant to all product and service warranties relating to or arising in connection with (i) any Excluded Liability, or (ii) the ownership of the Purchased Assets or operation of the DSD Business on or prior to the Closing Date;

(v) Certain Consumable Inventory . All Consumable Inventory located at Seller’s Bensenville, IL distribution center and all green coffee and tea in transit to the Transferred Facilities and Buyer Sites; and

(w) Other Excluded Assets . The assets listed on Schedule 1.3(w) .

1.4. Assumption of Liabilities . At the Closing, Buyer shall assume and agree to discharge and perform when due the following Liabilities of the Seller Parties (the “ Assumed Liabilities ”).

(a) Permitted Liens . All Liabilities relating to the Permitted Liens;

(b) Executory Liabilities . Notwithstanding Section 1.2 to the contrary, obligations arising after the Closing Date for future performance and any Liabilities arising from or relating to such future performance under each of the Purchased Contracts and those obligations arising after the Closing Date for future performance and any Liabilities arising from or relating to such future performance under the portion of each of the Mixed Use Contracts required to be assumed or performed pursuant to Section 6.7 ; provided , however , Assumed Liabilities shall not include any Liabilities (i) for or resulting from a breach by any Seller Party of any Purchased Contracts or any Mixed Use Contracts occurring on or prior to the Closing Date (other than any breach arising on account of a transfer pursuant to this Agreement of any Purchased Contact or Mixed Use Contract without the receipt of any necessary consent or waiver), or (ii) under any Mixed Use Contracts (or portion thereof) not required to be assumed or performed by Buyer pursuant to Section 6.7 ;

(c) Environmental Liabilities . Environmental Liabilities related to the Transferred Facilities, subject to any indemnification obligation of Seller for breach of any of the representations and warranties set forth in Section 4.21 ;

(d) Pension Liabilities . Pension liabilities under Multiemployer Plans with respect to the employees of the DSD Business to be hired by Buyer at Closing; provided , however , that if Buyer discontinues operations at the Hayward, CA Facility during the 180-day period following the Closing, Seller will indemnify and hold Buyer harmless for any withdrawal liability in excess of $60,000.00 which is incurred by Buyer under the Multiemployer Plans related to said Facility on account of such shutdown. Notwithstanding the foregoing, any Liability under the Multiemployer Plans for contributions required to be paid for a period prior to Closing (but only for the dollar amount of contributions, charges or increases required to have been made by Seller on or prior to Closing and not for any contributions, charges or increases required to be paid after Closing or for any other adjustments to contribution amounts after the Closing), or for a withdrawal or partial withdrawal occurring prior to the Closing shall not be an Assumed Liability;

(e) Advertising and Trade Promotion Expenses . All Liabilities for advertising, trade promotions and customer rebates relating exclusively to the DSD Business (collectively, “ Promotional Expenses ”) with respect to the period after the Closing Date; provided , however , that in the case of Promotional Expenses that relate to periods that extend both before and after the Closing Date, the parties shall allocate such Promotional Expenses based upon the relative benefits received by Seller Parties prior to the Closing Date (such amount to be an Excluded Liability) and the benefits received by Buyer following the Closing Date (such amount to be an Assumed Liability) in accordance with Section 2.7 . The parties shall share with one another all relevant information to make this allocation in accordance with such relative benefits;

(f) Utilities, Taxes, Etc . Pursuant to Section 2.3 , a pro-rated portion of (i) the real property Taxes for Owned Real Property, (ii) in the case of the Houston Plant and the Oklahoma City Plant, water, gas, electricity and other utilities relating to such plants, and (iii) in the case of all the Purchased Assets, personal property Taxes, plus any additional amounts which may be due based on actual bills versus amounts estimated pursuant to Section 2.3 (it being agreed that if Seller paid more than its pro rata portion based on such estimates, Buyer shall have no refund obligation to Seller); and

(g) Accrued Vacation . Subject to Section 6.2(a) , accrued vacation as of the Closing Date for Hired Personnel.

Assumption by Buyer of the Assumed Liabilities shall not in any way enlarge any of the rights of any third parties relating to any such Assumed Liability.

1.5. Excluded Liabilities . The “ Excluded Liabilities ” shall consist of all Liabilities of the Seller Parties other than the Assumed Liabilities, except the foregoing shall not limit in any way Buyer’s indemnity obligation under Section 8.3(b) .

1.6. DISCLAIMER OF WARRANTIES . EXCEPT AS SET FORTH IN ARTICLE IV, THE PURCHASED ASSETS ARE SOLD “AS IS”, “WHERE IS” AND NO

SELLER PARTY MAKES OR HAS MADE ANY REPRESENTATION OR WARRANTY REGARDING THE PURCHASED ASSETS. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NO SELLER PARTY MAKES ANY REPRESENTATION OR WARRANTY AS TO THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OF ANY PURCHASED ASSETS OR ANY OTHER REPRESENTATIONS OR WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW, FROM A COURSE OF DEALING OR USAGE OF TRADE, OR OTHERWISE. ALL SUCH OTHER REPRESENTATIONS AND WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED BY THE SELLER PARTIES.

ARTICLE II.
PURCHASE PRICE

2.1. Purchase Price .

(a) The aggregate purchase price (the “ Purchase Price ”) to be paid by Buyer for the Purchased Assets shall be $45,390,000.00, as adjusted pursuant to this Article II . In accordance with Sections 2.1(b) and 3.1 , the Buyer shall pay to Seller an amount (“ Closing Payment ”) equal to $45,390,000.00, plus the amount of the Vacation Reimbursement, if any, plus the balance of any amounts owed to Seller by Buyer pursuant to Sections 6.4 and 6.15 , plus or minus the following: the amount of any Estimated Inventory and Prepaid Excess shall be added and the amount of any Estimated Inventory and the Prepaid Shortfall shall be subtracted. In order to calculate the Closing Payment, Seller shall deliver to Buyer at least two (2) business days before the Closing Date an estimated calculation, which shall be prepared by Seller in good faith, of the value of the Consumable Inventory to be reflected on the Closing Inventory Statement and the Prepaid Expenses (itemizing each Prepaid Expense) which are part of the Purchased Assets (the “ Estimated Inventory and Prepaid Value ”). The amount by which the Estimated Inventory and Prepaid Value exceeds $22,000,000.00 shall be called the “ Estimated Inventory and Prepaid Excess ” and the amount by which the Estimated Inventory and Prepaid Value is less than $22,000,000.00 shall be called the “ Estimated Inventory and Prepaid Shortfall ”. The Estimated Inventory and Prepaid Value shall be prepared, with respect to Consumable Inventory in accordance with the Valuation Methodology described in Section 2.6(a) , and with respect to the Prepaid Expenses which are part of the Purchased Assets, in accordance with Seller’s Accounting Principles.

(b) The Closing Payment shall be paid by wire transfer of same day funds to the account set forth in Schedule 2.1 at Closing, except that if Buyer has not consummated the Bank Financing as of the Closing Date, then Buyer shall have the right to pay up to $20,000,000 of the Closing Payment in the form of a secured promissory note, said note to be payable to Seller in the form attached hereto as Exhibit B (the “ Note ”). The Note shall be secured by the collateral set forth in that certain Continuing Security Agreement dated the Closing Date, duly executed and delivered to Seller by Buyer in the form of Exhibit C (the “ Security Agreement ”).

2.2. Allocation . The Purchase Price shall be allocated among the Purchased Assets as agreed to by the parties; provided that such allocation shall be subject to necessary adjustments, to be completed and reflected in such allocation within ten (10) days following the issuance of the Final Closing Statements, on account of the final Consumable Inventory and Prepaid Expense Valuation under Section 2.6 . The parties shall file Internal Revenue Service Form 8594 with the Internal Revenue Service (“ IRS ”) reflecting such allocation in accordance with Section 1060 of the Code, and shall agree and ensure that all federal, state, local and foreign Tax returns which they file reflect such allocation. Each party shall promptly provide the other party with any other information required to complete IRS Form 8594.

2.3. Prorations .

(a) On the Closing Date, (i) the real property Taxes relating to the Owned Real Property, (ii) in the case of the Houston Plant and the Oklahoma City Plant, the water, gas, electricity and other utilities, and (iii) in the case of all the Purchased Assets wherever located, personal property Taxes, shall each be prorated between Buyer and Seller effective as of the Closing Date. To the extent practicable, utility meter readings for the Houston Plant and the Oklahoma City Plant shall be determined as of the Closing Date and, if not available, will be estimated by the parties. If the final real property Tax rate or final assessed value for the current Tax year is not established by the Closing Date, the prorations shall be made on the basis of ninety-five percent (95%) of the rate or assessed value in effect for the most current ascertainable Tax year. Prorations shall be made on the principle that Seller shall be responsible for real property Taxes relating to the Owned Real Property, utilities relating to the Houston Plant and the Oklahoma City Plant, and personal property Taxes related to the Purchased Assets allocable to the periods or portions of periods ending on or prior to the Closing Date, and Buyer shall be responsible for real property Taxes relating to the Owned Real Property, utilities relating to the Houston Plant and the Oklahoma City Plant and personal property Taxes related to the Purchased Assets allocable to the period or portions of periods beginning after the Closing Date.

(b) With respect to each personal property tax return required to be filed on or prior to the Closing Date, Seller shall prepare and file each such tax return consistent with its past practice. The allocation of personal property Taxes between the parties shall be made at Closing (i) based upon the value of the Purchased Assets (and no other property) as reflected in the applicable personal property tax return in the case of returns filed for the year in which the Closing occurs, or (ii) in the case of returns not yet filed for the year in which the Closing occurs, based upon the value of the Purchased Assets (and no other property) determined by Seller consistent with its past practices in filing personal property tax returns (which in no event shall take into account the Purchase Price or any contrary methodologies advanced by Buyer).

2.4. Income Taxes . All Taxes in respect of the income of the DSD Business for the period or portions of periods ending on or prior to the Closing Date shall be borne by the Seller Parties. All Taxes in respect of the income of the DSD Business for the period or portions of periods beginning after the Closing Date shall be borne by Buyer.

2.5. Closing Costs, Transfer Taxes and Fees .

(a) Buyer and Seller shall each pay fifty percent (50%) of the cost of any transfer Taxes, sales, use or other Taxes or fees imposed by reason of the transfer of the Purchased Assets (provided that in no event shall Buyer be liable for any Tax in respect of income imposed on any of the Seller Parties resulting from their sale of the Purchased Assets to Buyer), costs of applying for new permits and obtaining the transfer of existing permits, all fees and costs of recording or filing all conveyancing instruments, all fees and costs of obtaining title insurance on the Owned Real Property as set forth in Section 7.1(d) herein, including the costs and surveys necessary to delete the standard printed form Title Policy exception for matters shown by survey (which title insurance fees and costs shall not exceed $50,000.00 in the aggregate, it being agreed that Buyer shall be liable for one hundred percent (100%) of title insurance fees and costs in excess of $50,000.00), and the fees and costs of recording or filing all UCC termination statements and other releases of Liens other than Permitted Liens (but not the amount of such Liens). For the avoidance of doubt, Buyer and Seller shall each pay fifty percent (50%) of the cost of any transfer, sales, use or other Taxes or fees imposed by reason of the transfer of the Leased Real Property to Realty. Notwithstanding anything to the contrary herein, Seller shall not be liable for the administrative cost of transferring title (tags only) imposed in connection with registering any Vehicles with any Governmental Authority in the name of Buyer following the Closing, it being understood, however, that the costs of all other transfer Taxes, sales, use or other Taxes or fees imposed by reason of the transfer of the Vehicles on the Closing Date shall be paid fifty percent (50%) by Seller and fifty percent (50%) by Buyer. The sales, use and transfer Tax returns required by reason of said transfer shall be timely prepared and filed by the party normally obligated by Applicable Law to make such filing. The parties agree to cooperate with each other in connection with the preparation and filing of such returns, in obtaining all available exemptions from such sales, use and transfer Taxes, and in timely providing each other with resale certificates and any other documents necessary to satisfy any such exemptions.

(b) If any party (or any of its Affiliates) pays any Tax or fee required to be shared by the parties or paid by the other party under Section 2.5(a) , the owing party shall promptly (within twenty (20) days) reimburse the paying party for the amounts so owed. If any party (or any of its Affiliates) receives any refund or credit of any Tax or fee to which another party is entitled under Section 2.5(a) , the receiving party shall promptly (within twenty (20) days) pay such amounts to the party entitled thereto.

2.6. Post-Closing Consumable Inventory and Prepaid Expense Adjustment.

(a) Schedule 2.6(a) is a statement setting forth the type and value of the Consumable Inventory of the DSD Business owned by Seller as of June 28, 2008, which statement was prepared by Seller in a manner consistent with past practices used by Seller to value Inventory of the DSD Business (said statement being called “ Historic Inventory Statement ”). Two (2) business days before the Closing Date, Seller shall cause a physical count of the Consumable Inventory constituting part of the Purchased Assets at both the Transferred Facilities and Buyer Sites (subject only to additions and deletions made by Seller in the ordinary course of the DSD Business from the time of the physical inventory to the Closing Date). Representatives of both parties and their respective agents, including auditors, may be present during the inventory count and each party shall be responsible for its costs, including fees of its auditors and Representatives. Based upon this physical inventory, Seller shall prepare and deliver to Buyer, within sixty (60) days following the Closing Date, a statement setting forth the type and value of the Consumable Inventory as of the Closing Date (“ Closing Inventory Statement ”), which shall be prepared in a manner consistent with the Historic Inventory Statement, meaning that the valuation of Consumable Inventory as of the Closing Date shall be determined first, in accordance with the valuation principles articulated in the Historic Inventory Statement; second, if not articulated, then in accordance with valuation principles applied by Seller in the valuation of Inventory reflected in the Historic Inventory Statement; and third, if not reflected in the Historic Inventory Statement, in accordance with valuation principles used by Seller in a manner consistent with Seller’s past practices in valuing Inventory of the DSD Business (all of said valuation principles being collectively called the “ Valuation Methodology ” and none of which are inconsistent with Seller’s Accounting Principles). Buyer shall provide to Seller and its auditors and Representatives upon reasonable advance notice and during normal business hours access to the books and records, any other information, including work papers of its auditors, and to any employees of Buyer reasonably necessary for Seller to prepare the Closing Inventory Statement, to respond to Buyer’s Objection (as defined below) and to prepare materials for presentation to the CPA Firm (as defined below) in connection with Section 2.6(c) . At the time Seller delivers the Closing Inventory Statement, Seller shall also deliver a statement of the Prepaid Expenses which were part of the Purchased Assets as of the Closing Date (the “ Prepaid Statement ” and, together with the Closing Inventory Statement being called “ Closing Statements ”).

(b) Buyer shall, within thirty (30) days after the delivery by Seller of the Closing Statements, complete its review thereof. After delivery of the Closing Statements, Seller shall make available to Buyer its auditors and Representatives, upon reasonable advance notice and during normal business hours, all books, records, work papers, personnel (including their accountants and employees) and other materials and sources used by Seller to prepare the Closing Statements. The Closing Statements shall be binding and conclusive upon, and deemed accepted by, Buyer unless Buyer shall have notified Seller in writing within thirty (30) days after delivery of the Closing Statements of any good faith objection thereto (the “ Buyer’s Objection ”). The Buyer’s Objection shall set forth a description of the basis of Buyer’s Objection and the adjustments to the value of Purchased Consumable Inventory reflected on the Closing Statements or adjustments to the Prepaid Expenses reflected on the Prepaid Statement which Buyer believes

should be made. Any items not disputed during the foregoing thirty (30) day period shall be deemed to have been accepted by Buyer.

(c) If Seller and Buyer are unable to resolve all of their disputes with respect to the Closing Statements within thirty (30) days following Seller’s receipt of Buyer’s Objection to such Closing Statements pursuant to Section 2.6(b) , they shall refer their remaining differences to a nationally recognized firm of independent public accountants as to which Seller and Buyer mutually agree (the “ CPA Firm ”) for decision, which decision shall be final and binding on the parties. Any expenses relating to the engagement of the CPA Firm shall be shared equally by Seller, on the one hand, and Buyer, on the other hand. Seller and Buyer shall each bear the fees of their respective auditors incurred in connection with the determination and review of the Closing Statements. Buyer and Seller shall instruct the CPA Firm not to assign a value to any item in dispute greater than the greatest value for such item assigned to it by Buyer, on the one hand, or Seller, on the other hand, or less than the smallest value for such item assigned to it by Buyer, on the one hand, or Seller, on the other hand. Buyer and Seller shall also instruct the CPA Firm to make its determination based solely on the presentations of Buyer and Seller that are in accordance with the guidelines and procedures set forth in this Section 2.6 (i.e., not on the basis of an independent review).

(d) The Closing Statements shall become final and binding on the parties upon the earliest of (i) if no Buyer’s Objection has been given, the expiration of the period within which Buyer must make its objection pursuant to Section 2.6(b) hereof, (ii) the date of an agreement in writing by Seller and Buyer that the Closing Statements, together with any modifications thereto agreed by Seller and Buyer, shall be final and binding, and (iii) the date on which the CPA Firm shall issue its written determination with respect to any dispute relating to such Closing Statements. The Closing Statements, as submitted by Seller if no timely Buyer’s Objection has been given or as adjusted pursuant to any agreement between the parties or as determined pursuant to the decision of the CPA Firm, when final and binding on all parties, is herein referred to as the “ Final Closing Statements .”

(e) Within five (5) business days following issuance of the Final Closing Statements, the net adjustment payment payable pursuant to this Section 2.6(e) (the “ Adjustment Payment ”) and interest thereon at the rate of three percent (3%) per annum shall be paid by wire transfer of immediately available funds to a bank account designated by Seller or Buyer, as the case may be, except that if the Note is outstanding at the time any Adjustment Payment is owed to Buyer, then in lieu of a wire transfer of the Adjustment Payment to Buyer, the Note shall be reduced by the amount of such Adjustment Payment plus any accrued interest thereon as required by this Section 2.6(e) , said reduction to be applied first to the accrued and unpaid interest and then the balance to the principal amount of the Note. The Adjustment Payment shall be the difference, if any, between (x) the value of Purchased Consumable Inventory and Prepaid Expenses, as reflected on the Final Closing Statements, minus (y) the Estimated Inventory and Prepaid Value. The Adjustment Payment, if any, shall be payable by Buyer to Seller, if positive, and by Seller to Buyer, if negative.

2.7. Promotional Expense Proration .

(a) No later than fifteen (15) days after Buyer notifies Seller of a Promotional Expense that relates to periods that extend both before and after the Closing Date (a “ Shared Promotional Expense ”), Buyer and Seller shall meet to determine the amount of such Shared Promotional Expense allocable to the period on or prior to the Closing Date (a “ Seller Expense Reimbursement ”). Seller and Buyer shall cooperate in good faith in an effort to reach agreement upon the amount of a Seller Expense Reimbursement within ten (10) days of the initial meeting of Buyer and Seller with respect to such Seller Expense Reimbursement. The Seller Expense Reimbursement due with respect to any Shared Promotional Expense shall be computed by multiplying (A) the ratio of the Seller’s Promotional Sales over the Total Promotional Sales by (B) the Shared Promotional Expense in question. For purposes of this Section 2.7 , the term “ Seller’s Promotional Sales ” means the sales of the DSD Business on or prior to the Closing Date that were attributable to the Shared Promotional Expense in question, and the term “ Total Promotional Sales ” means the total sales for the period attributable to the Shared Promotional Expense in question.

(b) In the event that Seller and Buyer are unable to reach an agreement on the Seller Expense Reimbursement within twenty (20) days of the initial meeting of Buyer and Seller with respect to such Seller Expense Reimbursement, they shall refer the calculation of the Seller Expense Reimbursement to the CPA Firm for decision, which decision shall be final and binding on the parties. Any expenses relating to the engagement of the CPA Firm shall be shared equally by Seller, on the one hand, and Buyer, on the other hand. Seller and Buyer shall each bear the fees of their respective auditors and other representatives incurred in connection with the determination and review of the Seller Expense Reimbursement. Buyer and Seller shall instruct the CPA Firm not to assign a value to the Seller Expense Reimbursement greater than the greatest value for such item assigned to it by Buyer, on the one hand, or Seller, on the other hand, or less than the smallest value for such item assigned to it by Buyer, on the one hand, or Seller, on the other hand. Buyer and Seller shall also instruct the CPA Firm to make its determination based solely on the presentations of Buyer and Seller that are in accordance with the guidelines and procedures set forth in this Section 2.7 (i.e., not on the basis of an independent review).

(c) Within five (5) business days following the determination of a Seller Expense Reimbursement pursuant to clause (a) or (b) above, Seller shall pay such Seller Expense Reimbursement to Buyer by wire transfer of immediately available funds to a bank account designated by Buyer, except that if the Note is outstanding at the time any Seller Expense Reimbursement is owed to Buyer, then in lieu of a wire transfer of the Seller Expense Reimbursement to Buyer, the Note shall be reduced by the amount of such Seller Expense Reimbursement, said reduction to be applied first to the accrued and unpaid interest and then the balance to the principal amount of the Note. In the event that Seller fails to timely pay any Seller Expense Reimbursement to Buyer, such Seller Expense Reimbursement shall accrue interest at the rate of three percent (3%) per annum. If Seller paid Buyer an amount in excess of the Seller

Expense Reimbursement prior to the resolution of such amount as provided in this Section 2.7 , then Buyer shall pay such excess to Seller by wire transfer of immediately available funds to a bank account designated by Seller, together with accrued interest from the date of determination of the Seller Expense Reimbursement pursuant to clauses (a) or (b) above.

ARTICLE III.
CLOSING

3.1. The Closing . Subject to Article VII , the exchange of documents required to consummate the transactions contemplated by this Agreement shall take place at 10:00 a.m., central standard time, on Friday, January 30, 2009, at the offices of Sonnenschein Nath & Rosenthal LLP, located in Chicago, but consummation of the transaction (the “ Closing ”) shall be effective as of 11:59 p.m., eastern standard time, on Saturday, January 31, 2009 (the “ Closing Date ”); provided, however , that the cash portion of the Closing Payment (determined pursuant to Section 2.1 ) shall be tendered by Buyer to Seller by wire transfer of same day funds at such time as federally insured financial institutions open for business on Monday, February 2, 2009, in New York, New York, and the Note, if applicable, shall be physically tendered to Seller or its representatives by 9:00 a.m., central standard time, on Monday, February 2, 2009, at the offices of Sonnenschein Nath & Rosenthal LLP, located in Chicago; provided further , however , that such transactions may occur on such other dates, times or places as agreed to in writing by Buyer and Seller.

3.2. Seller Parties’ Closing Deliveries . Subject to the conditions set forth in this Agreement and to Section 1.2 , at the Closing, simultaneous with Buyer’s deliveries hereunder, the Seller Parties shall deliver or cause to be delivered to Buyer the following documents, certificates and instruments, all in form and substance reasonably satisfactory to Buyer and its counsel.

(a) Realty Equity Interests . Assignment of membership interests (and a certificate issued in the name of Buyer in the event that such membership interests are certificated) evidencing the transfer of all the right, title and interest in and to all of the equity interest in Realty to Buyer.

(b) Instruments of Transfer . Duly-executed bills of sale, assignments of DSD Intellectual Property, vehicle title certificates and all such other instruments of sale, assignment and transfer as are necessary or appropriate to sell, assign and transfer to Buyer and to vest in Buyer all of the Seller Parties’ right, title and interest in the Purchased Assets, free and clear of all Liens other than Permitted Liens.

(c) Releases of Liens . Any necessary instrument or certificate, duly executed and in recordable form, to discharge or release, or cause to be discharged or released, any Lien, other than a Permitted Lien against the Purchased Assets or Lien related to any Assumed Liabilities.

(d) Operational Agreements . The following agreements, in each case duly executed by Seller Parties, it being agreed that only the agreement described in clause (viii) has been finalized by the parties and that the other agreements are to be negotiated and modified in a manner mutually satisfactory to the parties based upon the parties’ discussions and understandings as of the execution of this Agreement (collectively, the “ Operational Agreements ”):

(i) A Trademark License Agreement pursuant to which the Seller Parties grant to Buyer the right to use the Trademarks and Trade Names specified therein on the terms set forth therein (the “ Seller Trademark License Agreement ”), substantially in the form attached hereto as Exhibit D ;

(ii) A Trademark License Agreement pursuant to which Buyer grants to Seller the right to use the DSD Business Marks for the purposes and on the terms set forth therein (“ Buyer Trademark License Agreement ”), substantially in the form attached hereto as Exhibit E ;

(iii) A Trademark License Agreement pursuant to which Buyer grants to Seller the right to use the Trademarks and Trade Names specified therein in Canada and Mexico on the terms set forth therein (the “ Superior Trademark License Agreement ”), substantially in the form attached hereto as Exhibit F .

(iv) A Seller Transition Services Agreement (the “ Seller Transition Services Agreement ”) substantially in the form attached hereto as Exhibit G ;

(v) A Cappuccino and Cocoa Transition Agreement with each of Seller’s two manufacturers pursuant to which Seller’s designees may supply to Buyer certain cappuccino and cocoa products on the terms set forth therein (each a “ Cappuccino and Cocoa Transition Agreement ”), substantially in the form attached hereto as Exhibit H (and subject to any reasonable modifications required by said manufacturers);

(vi) A Co-Pack Agreement pursuant to which Buyer will co-pack for Seller at the Houston Plant, for Seller’s NSO Business, certain varieties of Sara Lee Foodservice roast and ground coffee, tea and related products presently produced at the Houston Plant, whether or not related to the DSD Business, on the terms set forth therein (“ Buyer Co-Pack Agreement ”), substantially in the form attached hereto as Exhibit I;

(vii) A Co-Pack Agreement pursuant to which Seller will co-pack for Buyer at the St. Louis Park, Moonachie and Harahan Facilities to be retained by Seller, for Buyer’s operation of the DSD Business, certain varieties of roast and ground coffee and related products presently produced at those Facilities for the DSD Business, on the terms set forth therein (“ Seller Co-Pack Agreement ”), substantially in the form attached hereto as Exhibit J ;

(viii) A Liquid Coffee Distribution Agreement pursuant to which Seller will sell Douwe Egberts brand Liquid Coffee concentrate and related products to Buyer and Buyer will distribute such Liquid Coffee concentrate and related products on the terms therein (“ Liquid Coffee Distribution Agreement ”), substantially in the form attached hereto as Exhibit K ;

(ix) A Green Coffee and Tea Purchase Agreement pursuant to which Seller will purchase and supply to Buyer green coffee and tea on the terms therein (“ Green Coffee and Tea Purchase Agreement ”), substantially in the form attached hereto as Exhibit L ; and

(x) A Formula License Agreement pursuant to which Seller will license to Buyer certain coffee, tea and other related product formulas set forth on Exhibit A to such agreement which were used by Seller in the DSD Coffee Business or manufactured in the Houston Plant prior to the Closing Date (“ Formula License Agreement ”), substantially in the form attached hereto as Exhibit M .

(e) Title Documents . The following documents, in each case duly executed by Seller:

(i) a Foreign Investment in Real Property Tax Act Affidavit in substantially the form of Exhibit N ;

(ii) with respect to Owned Real Property, such affidavits and documents as may be reasonably required by the Title Company in connection with issuing the Title Policies covering such Owned Real Property;

(iii) such other documents and instruments reasonably necessary for the Title Company to issue any Title Policy (e.g., good standing certificates, authorizing resolutions, etc.); and

(iv) a special warranty deed conveying fee simple title to each parcel of the Owned Real Property to Buyer, duly executed by Seller or Seller’s Affiliate as to any parcel owned by an Affiliate of Seller.

(f) Certificate . The following certificates:

(i) a certificate executed by an officer of each Seller Party and Realty certifying in such officer’s official capacity and not in his or her individual capacity, the organizational documents and resolutions of the board of directors (or equivalent managing body, as applicable) authorizing the execution and delivery of this Agreement, Additional Documents and the consummation of transactions contemplated hereby and thereby;

(ii) an incumbency certificate from each Seller Party and Realty;

(iii) a certificate certifying the existence and good standing of each Seller Party and Realty issued by their respective states of incorporation or organization as of a date not more than ten (10) days prior to the Closing Date; and

(iv) a certificate executed by an officer of each Seller Party certifying in such officer’s official capacity and not in his or her individual capacity, that (i) the representations and warranties of the Seller Parties contained herein are true and correct in all material respects (except those qualified by materiality, which are true and correct in all respects) on and as of the Closing Date, subject to any Changes reflected in updates to the Schedules (the effect of such Changes and updates shall be as set forth in Section 6.6(a) ), and (ii) the Seller Parties have performed and complied in all material respects with all of the agreements and covenants to be performed or complied with by them prior to and as of the Closing Date.

(g) Right of First Opportunity . An agreement in the form of Exhibit O duly executed by Seller, pursuant to which Buyer has the opportunity to acquire certain parcels of real property adjacent to the Houston Plant (“ Option Agreement ”).

(h) DSD Employee Information : Seller shall deliver (i) a listing setting forth the number, if any, of former full-time DSD Employees, by location of each such employee’s service, who left the employ of Seller within the ninety (90) day period preceding the Closing Date, whether the termination was voluntary or involuntary to the employee; and (ii) a list setting forth the accrued and unused vacation for DSD Employees as of a date no earlier than fourteen (14) days prior to the Closing Date.

(i) Real Property Lease Assignment . An Assumption and Assignment duly executed by Seller assigning the Real Property Leases to Realty and accepted by Realty.

(j) Security Agreement . A counterpart of the Security Agreement, if applicable, executed by Seller.

3.3. Buyer’s Closing Deliveries . Subject to the conditions set forth in this Agreement, at the Closing, simultaneous with the Seller Parties’ deliveries hereunder, Buyer shall deliver or cause to be delivered to Seller all of the following funds, documents and instruments, all in form and substance reasonably satisfactory to Seller and its counsel.

(a) Closing Payment . The Closing Payment, including, if applicable, the Note, in the form permitted under Section 2.1(b) and paid to Seller as set forth under Section 3.1 .

(b) Operational Agreements . The Operational Agreements, in each case duly executed by Buyer.

(c) Officer’s Certificate . A certificate executed by an officer of Buyer certifying in such officer’s official capacity and not in his or her individual capacity, the Organizational

Documents and resolutions of the Board of Directors of Buyer authorizing the execution and delivery of this Agreement and the Additional Documents, and the consummation of transactions contemplated hereby and thereby.

(d) Bring-Down Certificate . A certificate executed by an officer of Buyer certifying in such officer’s official capacity and not in his or her individual capacity, that (i) the representations and warranties of Buyer contained herein are true and correct in all material respects (except those qualified by materiality, which are true and correct in all respects) on and as of the Closing Date, and (ii) Buyer has performed and complied in all material respects with all of the agreements and covenants to be performed or complied with by it prior to and as of the Closing Date.

(e) Incumbency Certificate . An incumbency certificate from Buyer.

(f) Insurance Certificate . A certificate issued by Buyer’s insurance carrier (or its agent) evidencing that the insurance coverages described in Section 6.10 are in full force and effect.

(g) Assumption of Liabilities Agreement . An agreement whereby Buyer assumes and agrees to pay, defend, discharge and perform when due each of the Assumed Liabilities.

(h) Right of First Opportunity . The Option Agreement, duly executed by Buyer.

(i) Security Agreement . A counterpart of the Security Agreement, if applicable, duly executed by Buyer, together with all instruments, transfer powers and other items required to be delivered in connection therewith.

ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF SELLER

Subject to the disclosures set forth in the Schedules to this Agreement, Seller hereby represents and warrants to Buyer as set forth below as of the date hereof and, subject to Permitted Stipulated Updates pursuant to Section 6.6(a) , as of the Closing Date. The disclosure of information in any Schedule shall qualify all representations and warranties to the extent such information is sufficiently clear to communicate the representations and warranties which it qualifies. The disclosure of any item or information in any Schedule shall not be construed as an admission that such item or information is required to be disclosed or is material to the DSD Business or any representation or warranty made by Seller. Information may be set forth in Schedules for informational purposes only and the Schedules do not necessarily include other matters of a similar nature.

4.1. Corporate Organization . Each Seller Party and Realty is duly organized, validly existing and in good standing under the laws of the state of its organization and in each other jurisdiction in which the ownership and leasing of its properties and assets or the conduct of its

business requires such qualification, except where such failure to qualify, in the case of each other jurisdiction, would not have a Material Adverse Effect, with all requisite organizational power and authority to own, lease and operate its properties and assets and to conduct its business as now, or then, being conducted. Neither Seller Party has any direct or indirect stock or other ownership interest (whether controlling or not) in any Person which engages in the United States in a business utilizing such Person’s network of facilities and vehicles to deliver coffees and teas directly to customer locations where such products are consumed.

4.2. No Violation . The execution, delivery and performance by either Seller Party of this Agreement and the other Additional Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby do not and will not, (a) conflict with or result in any violation of, or constitute a breach of any provision of the charter document or bylaws or operating or limited liability company agreement of such Seller Party or Realty, (b) except for consents and approvals set forth in Schedule 4.2 , conflict with, result in a violation of or constitute a breach or default (or an event which, with notice or lapse of time or both, would constitute a default) under, result in the acceleration of, create in any party the right to accelerate, terminate, modify or cancel, require notice under, or permit the termination of any Material Contract or Real Property Lease, (c) violate any Applicable Law, or (d) impose any Lien, restriction or charge on the Purchased Assets, including the Transferred Facilities or the DSD Business, except for Liens, restrictions or charges that would not, individually or in the aggregate, result in a Material Adverse Effect.

4.3. Authority . Each Seller Party has full power and authority to enter into this Agreement and the other Additional Documents to which it is a party and to consummate the transactions contemplated hereby and thereby, and to perform its obligations hereunder and thereunder. The execution and delivery of this Agreement, the Additional Documents to which it is a party, the consummation of the transactions contemplated hereby and thereby and the performance of Seller Parties’ obligations hereunder and thereunder have been duly authorized by the Seller Parties, and no other proceedings on the part of Seller Parties are necessary to authorize such execution, delivery and performance. This Agreement and the other Additional Documents to which any Seller Party is a party have been or will be duly and validly executed and delivered by each such Seller Party and, assuming the due execution and delivery of this Agreement and the Additional Documents by the other parties thereto, constitute or will constitute valid and binding legal obligations of each Seller Party to the extent a party thereto, enforceable against each such Seller Party to the extent a party thereto in accordance with their respective terms, except to the extent enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity and the discretion of courts in granting equitable remedies.

4.4. Realty .

(a) Upon consummation of the transactions contemplated by this Agreement, Buyer will acquire good and valid title free and clear of all Liens to the equity interests of Realty, which represents 100% of the equity of Realty. The membership interests of Realty have been duly authorized and validly issued and are fully paid and non-assessable. There are no outstanding options, warrants or other rights exercisable for the purchase of, or securities convertible into, any equity interests of Realty or any agreements, contracts or commitments relating to the issuance, sale, transfer, redemption, acquisition or voting of any equity interests of Realty. The membership interests of Realty to be transferred to Buyer hereunder are the only issued and outstanding equity interests of Realty. Schedule 4.4 sets forth a true, correct and complete statement of the capitalization of Realty.

(b) Realty has not engaged in any business other than owning the Real Property Leases and operating the Leased Real Property and has no Liabilities other than those which constitute Assumed Liabilities in Section 1.4 .

4.5. Compliance with Laws . Except as set forth on Schedule 4.5 , to Seller’s knowledge, the DSD Business and the Transferred Facilities are being, and during the thirty-six (36) month period prior to the date hereof have been, conducted and operated, and the Consumable Inventory has been produced, in compliance with all Applicable Laws, except for those failures to comply which would not, individually or in the aggregate, have a Material Adverse Effect or those failures that have been cured by Seller. During the thirty-six (36) month period prior to the date hereof, neither Seller Party has received written notification from any Governmental Authority asserting that the conduct of the DSD Business, the operation of the Transferred Facilities or the production of the Consumable Inventory is not in compliance with any Applicable Law, except for those failures to comply which would not, individually or in the aggregate, have a Material Adverse Effect or any instances of noncompliance which have been cured by Seller.

4.6. Financial Statements and Condition . Seller has delivered to Buyer a copy of the unaudited pro forma statements of operations of the DSD Business for the twelve (12) month period ended June, 28, 2008, and the three (3) month period ended September 27, 2008 (collectively, the “ Financial Statements ”). The DSD Business is not a separately reported unit of Seller. As a result, the Financial Statements were not prepared as part of Seller’s normal reporting process. Instead, the Financial Statements have been compiled by management of the DSD Business from source documentation subject to the controls and procedures of Seller’s accounting systems. This source documentation was prepared in accordance with accounting principles set forth on Schedule 4.6-1 (the “ Accounting Principles ”) except that no allocation of cost has been made to reflect Seller’s corporate overhead, general and administrative expenses and services. Except as set forth on Schedule 4.6-2 or in the Financial Statements, the Financial Statements (a) have been prepared in conformity, in all material respects, with the Accounting Principles, and (b) present fairly, in all material respects, the results of operations of the DSD Business (other than the Excluded Assets and the Excluded Liabilities) for the time period specified therein. Except as set forth on Schedule 4.6-3 , the definition of the term “ DSD

Business ” set forth in Article XI of this Agreement accurately reflects and is consistent with the business of Seller reflected in the Financial Statements for the periods covered thereby.

4.7. Consents and Approvals . Except as set forth on Schedule 4.7 , no filing or registration with, no notice to and no permit, authorization, consent, approval or waiver, of any Governmental Authority is necessary to be made by any of the Seller Parties or Realty in connection with the execution, delivery or performance of this Agreement or the Additional Documents by Seller Parties or the consummation by Seller Parties of the transactions contemplated by this Agreement or the Additional Documents.

4.8. Absence of Certain Changes or Events .

(a) Except (i) with respect to matters relating to the proposed sale of the Purchased Assets and the DSD Business, (ii) for general economic conditions and conditions which affect the coffee, beverage or food service industry generally (and are not specific to the DSD Business), (iii) for any Banking Change, and (iv) as set forth in Schedule 4.8(a) , since September 27, 2008, there has not been, nor does any Seller Party have knowledge of any development, individually or in the aggregate, which would reasonably be expected to cause, any material adverse change in the financial condition, business, assets, liabilities, results or operations of the DSD Business, taken as a whole, or the ability of any Seller Party to execute, deliver and perform this Agreement and the other Additional Documents to which it is a party (collectively, “ Material Adverse Effect ”). For the avoidance of doubt, and without limiting the foregoing, Material Adverse Effect shall not include continuation of the downward trend in sales and financial performance of the DSD Business in a manner consistent with historic trends during the past three (3) years.

(b) Without limiting the foregoing, except as set forth in Schedule 4.8(b) and except with respect to matters not inconsistent with this Agreement and the Additional Documents relating to the proposed sale of the Purchased Assets and the DSD Business (including the separation of the DSD Business from the other businesses of the Seller Parties), since September 27, 2008, (i) the Seller Parties have conducted the DSD Business in the ordinary course, and (ii) there has not been any sale or other disposition, except in the ordinary course of the DSD Business, of any assets of the DSD Business, or any Liens (other than Permitted Liens) placed on the assets of the DSD Business.

4.9. Payment of Taxes . Except as set forth on Schedule 4.9 , Seller has filed all Business Returns required to be filed (or obtained an extension with respect thereto) with respect to the DSD Business, except for those failures to file or obtain an extension which would not, individually or in the aggregate, have a Material Adverse Effect. Except as set forth on Schedule 4.9 , Seller has timely paid, or made adequate provision for the payment of, all Taxes shown to be due on such Business Returns, all Tax assessments related to such Business Returns received, and all Taxes related to such Business Returns which have or may become due under Applicable Law with respect to all periods or portions thereof ending on or prior to the Closing

Date, and, with respect to all periods through September 27, 2008, adequate provision therefor is reflected in the Financial Statements. Except as set forth on Schedule 4.9 , Seller has not requested an extension of time within which to file any such Business Return which has not since been filed. Except as set forth on Schedule 4.9 , Seller has not received written notice of any claim by any Taxing Authority in any jurisdiction where it does not file Tax returns or pay Taxes that it is or may be subject to Tax by that jurisdiction solely as a result of its ownership or operation of the DSD Business.

4.10. Owned Real Property .

(a) A copy (including copies of all documents related to the exceptions listed therein) of a preliminary report with respect to each parcel of Owned Real Property (the “ Title Report ”) has been previously provided to Buyer. There is no pending or, to Seller’s knowledge, threatened condemnation or other form of eminent domain proceeding against all or any portion of the Owned Real Property. None of the Owned Real Property is subject to any commitment, right of first refusal or other arrangement for the sale, transfer or lease thereof to any third party.

(b) The structures, related improvements and fixtures located on the Owned Real Property and Leased Real Property (i) to Seller’s knowledge, have no material defects, and (ii) are in a condition sufficient for the operation of the DSD Business as presently conducted, subject to maintenance, repairs and improvements to address normal wear and tear. No Seller Party is a sublessor or sublessee of any of the Owned Real Property or the Leased Real Property except as set forth in Schedule 4.10(b) .

4.11. Leased Real Property . Schedule 4.11 sets forth an accurate and complete list of all Real Property Leases. Seller has provided Buyer with correct and complete copies of all Real Property Leases and all amendments thereto. Seller is in peaceable possession of the Leased Real Property. Except as set forth in Schedule 4.2 or Schedule 4.11 , with respect to each of the Real Property Leases:

(a) at Closing such Real Property Lease will be valid and binding upon Realty and, to the knowledge of Seller, enforceable against the other parties thereto in accordance with its terms;

(b) none of the Seller Parties, Realty or the DSD Business is in breach of or default under such Real Property Lease and, except for breaches or defaults caused by the sale of the Purchased Assets to Buyer and Seller’s performance hereunder, no event has occurred or circumstance exists which, with the delivery of notice, the passage of time or both, would constitute such a breach or default, or permit the termination, modification or acceleration of rent under such Real Property Lease, except where such breach or default would not, individually or in the aggregate, have a Material Adverse Effect;

(c) none of the Seller Parties, Realty or the DSD Business owes, or will owe in the future, any brokerage commissions or finder’s fees with respect to such Real Property Lease;

(d) the other party to such Real Property Lease is not an Affiliate of any of the Seller Parties;

(e) none of the Seller Parties or Realty has subleased, licensed or otherwise granted any person or entity the right to use or occupy such Leased Real Property or any portion thereof;

(f) none of the Seller Parties or Realty has collaterally assigned or granted any Lien in such Real Property Lease or any interest therein; and

(g) to the knowledge of Seller, no other party to any Real Property Lease is in breach thereof or default thereunder.

4.12. Tangible Personal Property . The tangible personal property, including the Tangible P&E and the Owned Vehicles, included in the Purchased Assets is owned by Seller, free and clear of all Liens other than Permitted Liens and Liens set forth in Schedule 4.12-1 , all of which Liens, except for Permitted Liens, shall be fully released prior to Closing. Schedule 4.12-2 contains an accurate and complete list of each item of Tangible P&E (other than any Owned Vehicles) located at the Transferred Facilities as of October 9, 2008, having a fair market value on Seller’s books and records of at least $25,000.00 as of such date.

4.13. Vehicles; Routes; Personal Property Leases; Prepaid Expenses; Promotional Accruals .

(a) Schedule 4.13-1 sets forth an accurate and complete list of all routes used in the DSD Business as of October 9, 2008 (collectively, the “ Routes ”). An accurate and complete list of the Owned Vehicles used in the DSD Business as of October 24, 2008, is attached as Schedule 4.13-2 . Since September 27, 2008, other than in the ordinary course of the DSD Business, Seller has not changed routes of the DSD Business or disposed of any Vehicles. The Routes, as changed by Seller prior to the Closing Date in the ordinary course of the DSD Business in accordance with Section 6.1 , shall be referred to as the “ Closing Routes ”.

(b) Schedule 4.13-3 is an accurate and complete list of each Personal Property Lease involving the payment by Seller of lease payments that in the aggregate exceed $25,000 per calendar year. Seller has provided Buyer with correct and complete copies of all Personal Property Leases listed on Schedule 4.13-3 . Except as set forth on Schedule 4.13-4 , (i) each Personal Property Lease is valid and binding upon the Seller Party who is a party thereto, and, to the knowledge of Seller, enforceable against the other parties thereto in accordance with its terms, except where the failure of such Personal Property Lease to be valid, binding or enforceable would not, individually or in the aggregate, have a Material Adverse Effect or such failures that have been cured by Seller, (ii) to the knowledge of Seller, none of the Seller Parties or the DSD Business is in breach of or default under such Personal Property Lease, and, except for breaches or defaults caused by the acquisition of the Purchased Assets by Buyer and Seller’s performance under this Agreement, no event has occurred or circumstance exists which, with the delivery of notice, the passage of time or both, would constitute such a breach or default by

Seller, or permit the termination, modification or acceleration of any obligation of Seller under such Personal Property Lease, except where such breach or default would not, individually or in the aggregate, have a Material Adverse Effect, and (iii) to the knowledge of Seller, no other party to any Personal Property Lease is in breach thereof or default thereunder, except where such breach or default would not, individually or in the aggregate, have a Material Adverse Effect.

(d) Schedule 4.13-6 contains an accurate and complete list of Promotional Accruals relating exclusively to the DSD Business as of June 28, 2008.

4.14. Litigation . Except as set forth in Schedule 4.14 , there are no claims, actions, suits, governmental audits or investigations, or proceedings, including Products Liability Claims (collectively, “ Claims ”), pending or, to the knowledge of Seller, threatened, before any Governmental Authority, or before any arbitrator of any nature, brought by or against any Seller Party or Realty involving, affecting or relating to (a) the DSD Business, the Purchased Assets, or the transactions contemplated by this Agreement or the other Additional Documents, (b) seeking to enjoin or rescind the transactions contemplated by this Agreement or the Additional Documents or (c) otherwise preventing Seller Parties from complying with the terms and provisions of this Agreement and the Additional Documents. None of the DSD Business or the Purchased Assets is subject to any Judgment. To Seller’s knowledge, none of the Claims set forth in Schedule 4.14 are expected to have a Material Adverse Effect.

4.15. Intellectual Property . To Seller’s knowledge, no DSD Intellectual Property has been registered with any Governmental Authority other than as set forth on Schedule 4.15 . For each registered DSD Business Mark, Schedule 4.15 lists the jurisdiction of registration and the applicable application, registration or serial number. Except as set forth on Schedule 4.15 , the Seller Parties own all right, title and interest in and to all of the DSD Business Marks in the United States free and clear of all Liens (other than the Permitted Liens). Except as set forth on Schedule 4.15 , no Seller Party receives and no Person has a right to receive any royalty or similar payment in respect of the DSD Business Marks. Except as set forth on Schedule 4.15 , neither Seller Party has licensed, sublicensed or given permission to anyone to use any of the DSD Business Marks. Except as set forth on Schedule 4.15 , no Seller Party is subject to any Judgment, nor have any of them entered into or become a party to any Contract, in either case which restricts or impairs the ability of any Seller Party to use, exploit, assert or enforce any of the DSD Business Marks anywhere in the United States. To the knowledge of Seller, the DSD Intellectual Property has not interfered with, infringed (directly, contributorily, by inducement or otherwise), misappropriated, or otherwise violated, and, to the knowledge of Seller, the DSD Intellectual Property does not infringe (directly, contributorily, by inducement or otherwise), misappropriate or otherwise violate any Proprietary Rights of any third party. Seller Parties have not received any written charge, complaint, claim, demand or notice alleging any such interference, infringement, misappropriation or violation (including any claim that the DSD

Business must license or refrain from using any Proprietary Rights of any third party). Except with respect to the unauthorized registered use by third parties of domain names, Seller Parties and the DSD Business have taken all reasonable and prudent steps in the United States to protect the DSD Business Marks from infringement in the United States by any other firm, corporation, association or Person and will continue to maintain and protect all of the DSD Business Marks in the United States prior to Closing so as not to adversely affect the validity or enforceability thereof. Except as set forth on Schedule 4.15 , to the knowledge of Seller, no Person in the United States has or is infringing on (directly, contributorily, by inducement or otherwise), interfering with, misappropriating or violating the DSD Business Marks and no Seller Party has received any written notice of the same. No interference, opposition, reissue, reexamination or other proceeding is pending or, to the Seller Parties’ knowledge, is threatened, which challenges the scope, legality, validity, enforceability, use or ownership of any item of the DSD Business Marks in the United States. All of Seller’s rights with respect to the DSD Business Marks are valid and enforceable rights of Seller Parties and will not cease to be valid and in full force and effect in the United States by reason of the execution, delivery and performance of this Agreement and the Additional Documents or the consummation of the transactions contemplated hereby and thereby. Except as set forth on Schedule 4.15 , no Seller Party has ever agreed to indemnify any Person for or against any interference, infringement or misappropriation, with respect to any DSD Intellectual Property outside the ordinary course of the DSD Business. To Seller’s knowledge, no Seller Party possesses a registration for any domain name using the DSD Business Marks listed on Schedule 1.1(a)-1 except for those domain names set forth on Schedule 4.15 . For purposes of this Section 4.15 , the term “DSD Intellectual Property” does not include any copyright which is not material.

4.16. Permits . To Seller’s knowledge, Seller or Realty possess the Permits set forth on Schedule 4.16-1 . To the knowledge of Seller, the Permits set forth on Schedule 4.16-1 include all of the Permits necessary for Seller and Realty to own and operate the DSD Business as conducted by them as of the Closing Date, except for those Permits the failure of which to possess would not, individually or in the aggregate, have a Material Adverse Effect. The DSD Business and the Transferred Facilities are operated in compliance with, all Permits, except for those failures to comply which would not, individually or in the aggregate, have a Material Adverse Effect. All of the Permits listed on Schedule 4.16-1 are in full force and effect, and no Seller Party has received during the past three (3) years any written notice to the contrary except as set forth on Schedule 4.16-2 .

4.17. Contracts .

(a) Set forth in Schedule 4.17(a) is an accurate and complete list of all Material Contracts other than those specifically identified in another Schedule to this Agreement. The Seller Parties have delivered or made available to Buyer a correct and complete copy of each Material Contract and all amendments thereto. The term “ Material Contract ” means each of the following Contracts relating to the DSD Business which are either Purchased Contracts or Mixed Use Contracts (other than Contracts for the purchase by Seller of green coffee, tea, Liquid Coffee

concentrate, cocoa and cappuccino products, Machines and Spare Parts, and Contracts relating to software and information technology services or products) to which a Seller Party or Realty is a party or is bound:

(i) Any Contract (or group of related Contracts) for the purchase or sale of commodities, supplies, products or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than one year or that involves expenditures or receipts of the DSD Business in excess of $87,500 annually and which cannot be terminated on sixty (60) or less days notice without penalty;

(ii) Any Contract not made in the ordinary course of the DSD Business;

(iii) Any distribution, franchise, license, sales or commission Contract related to the DSD Business;

(iv) Any Contract that contains covenants that in any way purport to restrict the business activity of the DSD Business (or any part thereof) or limit the freedom of the DSD Business (or any part thereof) to engage in any line of business or to compete with any Person;

(v) Any Contract (or group of related Contracts) involving annual revenues of more than $87,500 under which Seller has granted price protection provisions;

(vi) Any Contract with an indemnity obligation not made in the ordinary course of the DSD Business;

(vii) Any purchase, supply or other Contract imposing on Seller confidentiality covenants not made in the ordinary course of the DSD Business;

(viii) Any purchase, supply or other Contract, other than service Contracts, imposing on Seller nonsolicitation covenants;

(ix) Any purchase, supply or other Contract (or group of related Contracts) which provides for warranties or return of product, rebates, sharing of fees, grant of discounts or similar arrangements involving annual sales by Seller in excess of $87,500 or which provides a grant of exclusivity by Seller to another contracting party;

(x) Any Contract (or group of related Contracts) which provides for consignment or similar arrangement of tangible assets having a fair market value in excess of $87,500;

(xi) Any collective bargaining agreement relating to the DSD Business;

(xii) Any Contract for the employment of any individual on a full-time, part-time or other basis or providing severance benefits or any consulting agreement providing annual compensation in excess of $87,500;

(xiii) Any Contract under which it has advanced or loaned any amount to any of the employees of the DSD Business outside the ordinary course of the DSD Business;

(xiv) Any Contract which is a “futures” contract committing the DSD Business (or any part thereof) to purchase, or accept delivery of, product at future times at fixed prices;

(xv) Any Contract that is a joint venture agreement;

(xvi) Any Contract (or group of related Contracts) that involves receivables of the DSD Business in excess of $87,500 annually which contains a “most favored customer” or “most favored nation” clause in favor of any customer of the DSD Business; and

(xvii) Any Contract that is an amendment, supplement or modification (whether oral or written) in respect of any of the foregoing.

(b) Except as set forth on Schedule 4.17(b) , with respect to each of the DSD Contracts, (i) such DSD Contract is valid and binding upon the Seller Party who is a party thereto or Realty, as the case may be, and, to the knowledge of Seller, enforceable against the other parties thereto in accordance with its terms, except to the extent that any failure of such DSD Contract to be valid, binding or enforceable would not, individually or in the aggregate, have a Material Adverse Effect, (ii) none of the Seller Parties or Realty is in breach of or default under such DSD Contract and, except for breaches or defaults caused by the sale of the Purchased Assets to Buyer and Seller’s performance hereunder, no event has occurred or circumstance exists which, with the delivery of notice, the passage of time or both, would constitute a breach or default, or permit the termination, modification or acceleration of any obligation under such DSD Contract, except where such breach or default would not, individually or in the aggregate, have a Material Adverse Effect, and (iii) to the knowledge of Seller, no other party to any DSD Contract is in breach thereof or default thereunder, except to the extent that any such breach would not, individually or in the aggregate, have a Material Adverse Effect.

4.18. No Other Agreement . Other than for sales of assets in the ordinary course of the DSD Business, none of the Seller Parties or Realty, or any of their respective Affiliates or Representatives, has any commitment or legal obligation, absolute or contingent, to any other Person other than Buyer, to sell, assign, transfer or effect a sale or other disposition of any of the Purchased Assets or the DSD Business.

4.19. Employee Plans .

(a) Schedule 4.19(a) lists each material plan, agreement, arrangement or policy providing for compensation, bonuses, profit-sharing, stock option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance (including any self-insured arrangements), health or medical benefits, employee assistance program, disability or sick leave benefits, workers’ compensation, supplemental unemployment benefits, change in control benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits), or other employee benefits, in each case, which is either maintained, administered, sponsored or contributed to by a Seller Party or their ERISA Affiliates for the benefit of any Hired Personnel (each, individually, an “ Employee Plan ” and collectively, the “ Employee Plans ”).

(b) With respect to each of the Employee Plans that is not a Multiemployer Plan, Seller has made available to Buyer: (i) a true, correct and complete copy of such Employee Plan, (ii) the most recent Annual Report (Form 5500 Series) and accompanying schedule, if any, and (iii) the most recent determination letter from the IRS, if any. Seller has also made available to Buyer the current summary plan description and any material modifications thereto for each Employee Plan that is not a Multiemployer Plan in respect of which there exists a summary plan description.

(c) Schedule 4.19(c) identifies each Employee Plan intended to be a “qualified plan” within the meaning of Section 401(a) of the Code (“ Qualified Plans ”). Each Qualified Plan has received a favorable determination letter from the IRS or is a prototype plan that has received a favorable opinion letter from the IRS, and any such IRS letter has not been revoked.

(d) Except as would not reasonably be expected to have a Material Adverse Effect, Seller has timely made or accrued all contributions required with respect to any Qualified Plan.

(e) Except as would not be reasonably expected to have a Material Adverse Effect, the Seller Parties and their ERISA Affiliates have performed and complied with all of their obligations under or with respect to the Employee Plans and each Employee Plan that is not a Multiemployer Plan has been operated in all material respects in accordance with its terms and in compliance with all Applicable Laws including the Code and ERISA, and to Seller’s knowledge, each Multiemployer Plan has been operated in all material respects in accordance with its terms and in compliance with all Applicable Laws including the Code and ERISA. There are no pending or, to Seller’s knowledge, threatened claims or proceedings relating to the Employee Plans that are not Multiemployer Plans, other than routine claims for benefits that have not resulted in any pending or, to Seller’s knowledge, threatened litigation. Neither the Seller Parties nor their ERISA Affiliates have engaged in a transaction with respect to any Employee Plan that, assuming the taxable period of such transaction expired as of the date hereof, would be reasonably expected to subject Seller to a tax or penalty imposed by Sections 4975 through 4980 of the Code or Sections 502(i) or 502(l) of ERISA in an amount which would have a Material Adverse Effect. There are no material audits, inquiries or proceedings pending or, to Seller’s

knowledge, threatened by the IRS, Department of Labor, or any other Governmental Authority with respect to any Employee Plan.

4.20. Labor and Employee Matters .

(a) Except as set forth in Schedule 4.20(a) , Seller is not a party to, or otherwise bound by, a collective bargaining agreement (or any other agreement with any labor organization), which covers any of the Hired Personnel. To Seller’s knowledge, no labor unions or other organizations have filed a petition within the last 6 months with the National Labor Relations Board or any other Governmental Authority seeking certification as the collective bargaining representative of any employees of the DSD Business. To Seller’s knowledge, no labor union or organization is currently engaged in any organizing activity with respect to any employees of the DSD Business. During the past two (2) years, the DSD Business has not experienced any material work stoppage, labor dispute, grievance, slowdown, lockout or strike, and to the knowledge of Seller, none has been threatened against the DSD Business. To Seller’s knowledge, except as set forth in Schedule 4.20(a), there is no unfair labor practice charge or complaint against the DSD Business pending before the National Labor Relations Board or any other Governmental Authority.

(b) Schedule 4.20(b) lists all DSD Employees as of October 27, 2008, and for each such employee the: (i) job position; (ii) job location; (iii) classification as full-time or part-time as of November 13, 2008; (iv) classification as exempt or non-exempt under applicable state or federal overtime regulations; (v) current hourly rate of compensation or base salary (as applicable); (vi) eligible vacation; and (vii) the original date of hire. The last pay review day for DSD employees not covered by a Labor

SITE SEARCH

AGREEMENTS / CONTRACTS

CLAUSES

Search Contract Clauses >>

Browse Contract Clause Library>>

Get Email Updates