TRANSITION SERVICES AGREEMENT/
This Transition Services Agreement (this "Agreement") is made and entered
into as of the - day of June 2001 (the "Effective Date") by and among
Einstein/Noah Bagel Corp. ("ENBC") and Einstein/Noah Bagel Partners, L.P., with
their principal offices at 0000 Xxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxx 00000
(collectively, the "Sellers"), and Einstein Acquisition Corp., with its
principal offices at 000 Xxxxxxxxxx Xxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx, 00000 (the
"Buyer").
WHEREAS, pursuant to that certain Asset Purchase Agreement dated June 1,
2001 between the Sellers and the Buyer, as amended and/or restated through the
date hereof (the "Asset Purchase Agreement"), the Buyer agreed to acquire
certain assets and assume certain liabilities of the Sellers; and
WHEREAS, following the Closing, the Sellers will be (i) taking steps to
wind down the affairs of the Sellers, (ii) managing and winding down certain
benefit plans, (iii) preparing and reviewing the Closing Statement and (iv)
compl-eting other related activities (collectively, the "Post-Closing Matters");
WHEREAS, it is anticipated that each of the current officers and directors
of ENBC and New ENBPI, Inc., the general partner of Einstein/Noah Bagel
Partners, L.P., as of the Closing (the "Management") shall continue to serve in
such positions until the administrator (the "Administrator") assumes his/her
duties as the sole director and officer of ENBC and New ENBPI, Inc.; it being
the intention of the Sellers, after consultation with the major creditors in
their Chapter 11 cases and Bagel Store Development Funding, L.L.C., to select
the Administrator within thirty (30) days of the date hereof, and to receive
approval of such selection from the United States Bankruptcy Court for the
District of Arizona (the "Court"); and
WHEREAS, pursuant to the Asset Purchase Agreement, the Buyer agrees to
provide certain services to the Sellers to complete the Post-Closing Matters,
such services to be provided in a manner that does not cause substantial
disruption to the Buyer's business.
NOW, THEREFORE, in consideration of the foregoing and mutual covenants and
agreements contained herein, and for other valuable consider ation, the receipt
and sufficiency of which is hereby acknowledged, the Buyer and the Sellers agree
as follows:
1. TRANSITION SERVICES
1.1 Post-Closing Employees. Prior to the Closing, the Sellers shall
designate up to twelve (12) of the Sellers' current employees who are to be
retained by the Buyer (with such designation to be reasonably acceptable to the
Buyer) (the "Buyer-Retained Post-Closing Employees") who will, after the
Closing, perform such functions as the Management or the Administrator, as the
case may be, deem reasonably necessary to complete the Post-Closing Matters. The
Buyer-Retained Post-Closing Employees shall primarily consist of employees from
the Sellers' finance, legal and human resource departments. The Sellers may also
designate other current employees of the Sellers who are not retained by the
Buyer to be Post-Closing Employees (as defined below) and these parties,
together with such other parties who are necessary to complete the Post-Closing
Matters, are hereinafter sometimes referred to as an "Other Retained
Employee(s)." The Buyer-Retained Post-Closing Employees and Other Retained
Employees together are sometimes referred to as "Post-Closing Employees."
1.2 Service of the Buyer-Retained Post-Closing Employee. The Buyer may
terminate the employment of a Buyer-Retained Post-Closing Employee only upon
five (5) days written notice to Sellers, unless termination is for cause in
which case no prior notice to Sellers is required. A Buyer-Retained Post-Closing
Employee may not be terminated solely because he or she has been designated as a
Post-Closing Employee. Further, the Buyer shall not reduce the base salary of
any Buyer-Related Post-Closing Employee on account of his/her designation as a
Post-Closing Employee (provided, Buyer shall not be otherwise prohibited from
adjusting salaries) and shall provide any Buyer-Related Post-Closing Employee
with substantially similar benefits provided to the Buyer's other employees
during the term of this Agreement. In the event a Buyer-Retained Post-Closing
Employee is terminated or resigns, Management or the Administrator, as the case
may be, may designate a replacement Buyer-Retained Post-Closing Employee (with
such designa tion to be reasonably acceptable to the Buyer and subject to the
execution of a Severance Waiver (as defined in this Agreement), if required),
and the employment of such new Buyer-Retained Post-Closing Employee shall be
subject to all of the terms and provisions of this Agreement. Notwithstanding
the foregoing, nothing in this Agreement shall change, alter or modify a
Buyer-Retained Post-Closing Em ployee's status as an "at-will" employee of Buyer
(if such Buyer-Retained Post-Closing Employee was and "at-will" employee of
Sellers on the Closing Date). No provision of this Agreement is intended or
shall be construed to create an employment agreement or grant or confer any
right to enforce this Agreement to a Post-Closing Employee.
1.3 Scope. Consistent with the discharge of his/her duties as an employee
of the Buyer, each of the Buyer-Retained Post-Closing Employees shall be
required to devote a sufficient amount of his or her working time to the Sellers
as requested by the Management or the Administrator, as the case may be, to
complete the Post-Closing Matters; provided , however, that no Buyer-Retained
Post-Closing Employee shall be required to devote more than (i) fifteen percent
(15%) of his or her working time on Post-Closing Matters to the Sellers during
the period prior to the earlier of (a) sixty (60) days after the Closing or (b)
approval by the Bankruptcy Court of the appointment of the Administrator, and
(ii) thirty-three and one-third percent (331/3%) of his or her working time on
Post-Closing Matters thereafter, with such percentages to be measured on a
weekly and a monthly basis. The Buyer-Retained Post-Closing Employees will be
required to maintain complete and accurate records of all time spent by them on
Post-Closing Matters. The Buyer-Retained Post-Closing Employees will not act on
behalf of the Sellers in resolving disputes with the Buyer, including but not
limited to, preparation of the Closing Statement and handling of claims by or
against the Buyer, if they have accepted, or intend in the future to accept,
employment with the Buyer. The Sellers and the Buyer will reasonably cooperate
with one another so that the use of Buyer-Related Post-Closing Employees on
Post-Closing Matters will not disrupt the Buyer's business operations.
1.4 Resolution of Post-Closing Matters. The Sellers shall use their
commercially reasonable efforts to complete all Post-Closing Matters as soon as
practicable following the Closing.
1.5 Employment and Severance Agreements. The Sellers will use their
commercially reasonable efforts to cause each Buyer-Retained Post-Closing
Employee to enter into an agreement stating that the service provided by such
Buyer-Retained Post-Closing Employee with respect to Post-Closing Matters will
not trigger or give rise to the right of such Buyer Retained Post-Closing
Employee to receive any change of control or severance payment under any
employment agree ment or severance agreement (such agreement being referred to
as a "Severance Waiver"). To the extent the Sellers are unable to obtain such
agreement, the parties agree that such employee will not be considered
"reasonably acceptable" to the Buyer in accordance with Section 1.1 and such
employee shall not be deemed a Buyer-Retained Post-Closing Employee for any
purpose until such employee enters into a Severance Waiver.
2. REASONABLE ACCESS AND USE
2.1 Facilities and Equipment. The Buyer shall provide the Sellers, the
Management, the Administrator and the Post-Closing Employees (and profes
sion-als retained by them) with reasonable access to the same or substantially
similar phone, copying, computer and printer equipment used by them prior to the
Closing in the ordinary course of business, and reasonable access to the same or
substantially similar computer systems used by them prior to the Closing to the
extent necessary to complete the Post-Closing Matters, including, but not
limited to, the historical payables information, pre-Closing general ledgers and
the ability to process checks; provided that the Buyer may take reasonable steps
to ensure that the Buyer's post-Closing payables systems are separate and secure
from the historical payables system, the post-Closing general ledgers and other
post-Closing financial systems; and provided further that the Sellers may not
process a check from the Buyer's systems until the earlier of the date that is
(i) the date the Buyer determines that the post-Closing payables are separate
and secure from the historical payables system and (ii) ten (10) business days
from the Closing Date; provided, however, that if separation and/or securing of
the payable system has not occurred within such ten (10) business day period,
the Sellers and the Buyer shall reasonably cooperate in issuing any payments
that may be required to be made by the Sellers from the payable system.
2.2 Records. The Buyer shall provide to the Sellers, the Man age-ment, the
Administrator, the Post-Closing Employees (and their respective advisors,
including accountants and legal counsel) reasonable access during normal
business hours to pre-Closing accounting and other records and information neces
sary for the completion of the Post-Closing Matters. In this regard, the Buyer
shall be required to possess, retain and otherwise store such books and records
on its premises, and shall not abandon or destroy such materials, as long as
this Agreement is in effect, except as provided below. In the event that the
Buyer desires to abandon or destroy such books and records, the Buyer shall
first notify the Management or the Adminis-trator, as the case may be, of such
desire, and then allow the Management or the Administrator, as the case may be,
a reasonable opportunity to copy and/or take possession of all or any portion of
such records prior to abandoning or destroy ing such materials.
2.3 Reasonable Use . Subject to the provisions of Subsection 2.4 below
regarding personnel who are not Buyer-Retained Post-Closing Employees, the Buyer
shall allow the Management, the Administrator and the Post-Closing Employ ees to
use the offices, office space, supplies and equipment as assigned by the Buyer
during the time period that the Post-Closing Employees are working for the
Sellers on the Post-Closing Matters, including, but not limited to, (a) use of
the mailroom facilities for services provided in the ordinary course of business
and (b) use of the telephone systems. Notwithstanding the foregoing, the Buyer
shall use its commer cially reasonable best efforts to provide the
Buyer-Retained Post-Closing Employees office space which is comparable to their
current offices.
2.4 Facilities, Equipment and Records Relative to Other Retained Employees.
The Buyer shall make a reasonable amount of space available at the support
center in Golden, Colorado (or any replacement facility) for use by Other
Retained Employees with respect to completion of Post-Closing Matters (the
"Segre-gated Space"). Notwithstanding the foregoing, Other Retained Employees
shall have the use of the facilities, equipment and records as set forth in
subsections 2.1, 2.2 and 2.3 above, provided, however, that the Buyer shall
endeavor to set up separate support equipment within the Segregated Space
(telephones, copiers, computers, etc.) to the extent practical for use by the
Other Retained Employees. Documents and other records retained by the Sellers
that were not transferred to the Buyer pursuant to the Asset Purchase Agreement
shall, at the Sellers' option, be removed by the Sellers to the Segregated Space
or to such other places as the Sellers may designate. Notwithstanding anything
contained in subsection 2.3 to the con trary, no person who is not a
Buyer-Retained Post-Closing Employee shall maintain his/her current office or
equipment unless the Buyer otherwise agrees in writing. Further, with respect to
the Other Retained Employees' use and access to the Buyer's facilities (other
than the Segregated Space) and equipment as described in subsec tions 2.1 and
2.3, the Sellers and the Buyer agree to discuss in good faith and to make
reasonable accommodations for the Other Retained Employees' access to such
facilities and equipment prior to such Other Retained Employee being granted
reasonable access to such facilities and equipment.
2.5 Buyer's Use. The Sellers and the Buyer will reasonably xxxxxx-ate with
one another to assure that the Sellers use of the designated facilities,
equipment and records with respect to Post-Closing Matters will not disrupt the
Buyer's business operations.
2.6 Confidentiality.
(a) The Buyer and the Sellers agree that (i) the offices, equip-ment,
computers and other resources made available to the Sellers pursuant to this
Agreement may be secured by reasonable means by the Sellers, the Manage ment,
the Administrator or the Post-Closing Employees as they pertain to Post-Closing
Matters and/or assets not purchased or liabilities not assumed by the Buyer,
(ii) all of the Sellers' records and information related to Post-Closing Matters
and/or assets not purchased or liabilities not assumed by the Buyer shall remain
confidential, and (iii) the Buyer shall use the same level of care with respect
to protecting the confidential information of the Sellers, the Management, the
Adminis trator and the Post-Closing Employees as it would to maintain the same
confidential information as if it were its own except to the extent that the
Buyer is required to disclose such confidential information pursuant to the
Securities Exchange Act of 1934, as amended or the Securities Act of 1933, as
amended.
(b) Each party hereby acknowledges it may have access to certain
confidential documents and information belonging to the other parties hereto,
and hereby agrees it will use commercially reasonable efforts to maintain the
confi-dentiality of such documents and information. The obligation of the
parties to hold any such information in confidence shall be satisfied if such
parties shall exercise the same level of care with respect to such information
as they would take to preserve the confidentiality of their own information.
3. FEES
3.1 Fees. During the term of this Agreement, the Sellers shall pay the
Buyer a monthly fee for all materials, services and other items provided to the
Sellers under this Agreement equal to the sum of the following:
(a) the percentage of the base salary of each Buyer-Retained Post-Closing
Employee equal to the percentage of time each such Buyer-Retained Post-Closing
Employee works on behalf of the Sellers plus an amount equal to thirty percent
of such percentage of the Buyer-Retained Post-Closing Employee's base salary
(for purposes of this Section 3(a), a member of the Management shall be
considered a Buyer-Retained Post-Closing Employee if he or she is employed by
the Buyer while acting as a member of the Management); and
(b) a sum of not more than $5,000.00 per month for the use of the Buyer's
facilities and equipment (other than the Segregated Space), provided that the
Sellers and the Buyer will confer on a periodic basis to discuss reduction of
this amount based upon the Sellers actual usage of the Buyer's facilities and
equipment.
3.2 Other Expenses. The Sellers shall be responsible for the costs and
expenses of establishing and operating the Segregated Space and procuring and
operating any support equipment located therein and shall pay monthly rental to
the Sellers based upon the size of the Segregated Space in relation to the total
premises of which it is a part. All out-of-pocket expenses incurred by the
Post-Closing Employees, Management or the Administrator that are directly
attributable to the performance of duties relating to the Post-Closing Matters
shall be the responsibility of the Sellers
3.3 Payment. Within ten (10) business days after the Closing, the Sellers
shall deposit the sum of twenty-five thousand ($25,000) dollars with a mutually
acceptable escrow agent (the "Retainer Account") as a retainer for payment of
fees and expenses under this Agreement. The fees and expenses contemplated in
the prior subsection shall be invoiced by the Buyer at the end of each calendar
month. The Buyer may draw on the Retainer Account in an amount equal to such
invoice. In the event Sellers dispute all or part of the invoice (with the
exception of the amount referenced in subsection 3(b) which may not be the
subject of dispute) in writing within three (3) business days of receipt of the
invoice, the Buyer shall deposit an amount equal to the disputed amount back
into the Retainer Account. The Sellers shall replenish the Retainer Account
within twenty (20) business days after notice of each draw so that the balance
equals $25,000.
4. INDEMNITY
4.1 Indemnity.
(a) The Sellers jointly and severally hereby agree to indemnify and hold
harmless the Buyer (and each of its respective officers, stockholders,
directors, and employees, including, but not limited to, the Buyer-Retained
Post-Closing Employees, as applicable) from and against any and all claims,
liabili ties, losses, damages, costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses) related to or arising,
directly or indirectly, from any act or omission by the Management, the
Administrator or a Post-Closing Employee (but not with respect to acts or
omissions of Buyer-Retained Post-Closing Employees that occur or do not occur,
as the case may be, at the direction of the Buyer) on behalf of the Sellers
relating to Post-Closing Matters and the use of the Buyer's employees,
facilities, equipment and records as contemplated hereby, but only as to any
such act or omission occurring prior to the termination of this Agreement
pursuant to Section 5.6 hereof.
(b) The party entitled to indemnification pursuant to this Section 4 (the
"Indemnitee") shall give to the party obligated to provide indemnifica-tion
pursuant to this Section 4 (the "Indemnifying Party") written notice of any
claim, suit, judgment or matter for which indemnity may be sought under this
Section 4, promptly but in any event within fifteen (15) days after the
Indemnitee receives actual notice of the matter that may give rise to the claim
for indemnifica tion; provided, however, that failure by the Indemnitee to give
such actual notice shall not relieve the Indemnifying Party from any liability
it may otherwise have pursuant to this Section 4 unless such Indemnifying Party
has been materially prejudiced by the delay.
(c) The Indemnifying Party shall have the right, at its option, to be
represented by counsel of its choice and to assume the defense or otherwise
control the handling of any claim, suit, judgment or matter for which indemnity
is sought, as set forth in the notice sent by the Indemnitee, by notifying the
Indemnitee in writing to such effect within thirty (30) days of receipt of such
notice. If the Indemnifying Party does not give timely notice in accordance with
the preceding sentence, the Indemnifying Party shall be deemed to have given
notice that it does not wish to control the handling of such claim, suit or
judgment. Whether or not the Indemnifying Party elects (by notice in writing
within such thirty (30) day period) to assume the defense of or otherwise
control the handling of any such claim, suit, judgment or matter for which
indemnity is sought, the Indemnifying Party shall indemnify and hold harmless
the Indemnitee from and against any and all costs, demands, losses, liabilities,
obligations, claims, causes of action and expenses suffered. The Indemnitee may
retain counsel, the reasonable fees and expenses of which shall be treated as an
indemnifiable expense hereunder, to defend such claim, suit, judgment or matter
in the event the Indemnifying Party does not assume the defense or otherwise
control the handling of the matter; provided, however, that all indemnifiable
expenses incurred by the Indemnitee shall be considered fees due the Indemnitee
by Sellers pursuant to Section 3 of this Agreement.
(d) The parties shall cooperate in the defense of any such claim,
litigation or matter and each shall make available all books and records which
are relevant in connection with such claim or litigation. The Indemnifying Party
will not consent to the entry of any judgment or enter into any settlement with
respect to any matter which does not include a provision whereby the plaintiff
or claimant in the matter releases the Indemnitee from all liability with
respect thereto, without the written consent of the Indemnitee.
5. GENERAL
5.1 Cooperation.
(a) The Buyer shall from time to time, at the request of the Sellers, the
Management or the Administrator, make its employees (the "Transferred
Employees") reasonably available to the Sellers, the Management, the
Administrator and the Post-Closing Employees to the extent necessary to complete
the Post-Closing Matters. The Buyer acknowledges that the Sellers, the
Management, the Administra-tor and the Post-Closing Employees require reasonably
significant access to the Transferred Employees and Pre-Closing records after
the Closing, and the Buyer agrees to provide access to the Transferred Employees
and Pre-Closing records of the Buyer after the Closing. The Sellers agree that
such services shall be provided in a manner that does not cause substantial
disruption to the Buyer's business.
(b) To the extent necessary to complete the Sellers' Form W-2's and any
necessary benefit plan audits, the Sellers, the Management, the Administra tor
and the Post-Closing Employees may have reasonable access to the working time of
the employees of the Seller who were previously engaged in handling such matters
(the "Benefits Employees"); provided, however, that the Sellers, the Management,
the Administrator or the Post-Closing Employees provide notice to the Buyer
regarding such access to the Benefits Employees and access is provided to the
Buyer to the working time of the Benefits Employees upon the Buyer's reasonable
request.
5.2 Entire Agreement. This Agreement (including any exhibits and other
documents and instruments referred to herein) constitutes the entire agreement
and supersedes all other prior agreements and understandings, both written and
oral, among the parties or any of them, with respect to the subject matter
hereof, including any transaction between or among the parties hereto.
5.3 Assignment. Neither the Sellers nor the Buyer may assign its rights or
obligations under the Agreement without prior written consent of the other
parties; provided that the Sellers may assign their rights and obligations,
without consent of the Buyer, to any entity created under or in connection with
a plan filed in the Chapter 11 Cases, except that any assignment or delegation
to any entity which engages in substantial competition with the Buyer shall
require consent of the Buyer, which consent may be unreasonably withheld,
conditioned or delayed.
5.4 Defined Terms. Capitalized terms used in this Agreement that are not
defined herein shall have the meaning ascribed to such terms in the Asset
Purchase Agreement.
5.5 Amendments and Waivers. No amendments or modifications to this
Agreement shall be valid and binding on the parties unless set forth in writing
and duly executed by the parties. No waiver with respect to this Agreement shall
be enforceable unless set forth in writing and signed by the party against whom
enforce ment is sought. Silence, acquiescence or inaction shall not be deemed a
waiver of any right. No failure to exercise, delay in exercising, or single or
partial exercise of any right, power or remedy by any party, and no course of
dealing between or among any of the parties, shall constitute a waiver of, or
shall preclude any other or further exercise of, any right, power or remedy.
5.6 Termination. Notwithstanding anything herein to the contrary, this
Agreement and any rights granted hereunder can be terminated by the Buyer or the
Sellers upon (a) mutual consent of the parties to this Agreement; or (b) any
material breach or default by the other party of any provision or obligation of
this Agreement that is not cured within twenty (20) business days after written
notice is delivered to such party of such breach or default, except for a
default by the Sellers under subsection 3.3 of this Agreement. This Agreement
shall terminate on the earlier of (i) the date that is twelve (12) months from
the date hereof and (ii) the date that the Sellers wind-up operations.
5.7 Notice. All notices, claims, demands and other communications hereunder
shall be in writing and shall be deemed given upon (a) confirmation of receipt
of a facsimile transmission, (b) confirmed delivery by a standard overnight
carrier or when delivered by hand, or (c) the expiration of five (5) business
days after the day when mailed by registered or certified mail (postage prepaid,
return receipt requested), addressed to the respective parties at the following
addresses (or such other address for a party as shall be specified by like
notice):
(a) if to the Buyer, to
New World Coffee-Manhattan Bagel, Inc.
000 Xxxxxxxxxx Xxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
With a copy to:
Xxxxxxx, Del Deo, Dolan, Griffinger & Xxxxxxxxx
Xxx Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxx XxXxxxxxx, Esq.
Ruskin, Moscou, Xxxxx & Faltischek P.C.
000 Xxx Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx, Esq.
(b) if to the Sellers, to
Einstein/Noah Bagel Corp. and
Einstein/Noah Bagel Partners L.P.
0000 Xxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: J. Xxxx Xxxxxxx, Esq.
5.8 Section Headings. The section and subsection headings in this Agreement
are used solely for convenience of reference, do not constitute a part of this
Agreement, and shall not affect its interpretation.
5.9 Severability. If any provision of this Agreement is construed to be
invalid, illegal or unenforceable, then the remaining provisions hereof shall
not be affected thereby and shall be enforceable without regard thereto.
5.10 References. All words used in this Agreement shall be con strued to
such number or gender as the context requires or permits. Unless a particu lar
context clearly requires otherwise, the words "hereof" and "hereunder" and
similar references refer to this Agreement in its entirety and not to any
specific section or subsection of this Agreement.
5.11 No Third-Party Beneficiaries. No provision of this Agreement is
intended to or shall be construed to grant or confer any right to enforce this
Agreement, or any remedy for breach of this Agreement, to or upon any person
including, but not limited to, any Post-Closing Employee, other than the parties
hereto, except that (a) nothing in this Section 5.11 shall be in derogation of
the rights or obligations of any assignee under Section 5.3 of this Agreement
and (b) the members of the Management and the Post-Closing Employees shall be
express third-party beneficia-xxxx of the Sellers' covenants in Section 4.1
hereof.
5.12 Governing Law . This agreement shall be governed and con-strued in
accordance with the laws of the state of New York applicable to contracts made
and performed in such state and without regard to conflicts of laws doctrines.
5.13 Jurisdiction. Until such time as the Debtors' Cases are closed, the
Sellers and the Buyer hereby irrevocably submit to the exclusive jurisdiction of
the United States Bankruptcy Court for the District of Arizona for the purpose
of any action or proceeding arising out of or relating to this Agreement and the
Sellers and the Buyer hereby irrevocably agree that all claims in respect of to
such action or proceeding shall be heard and determined in such court. The
Sellers and the Buyer agree that a final judgment in any action or proceeding
shall be conclusive and may be enforced in other jurisdic tions by suit on the
judgment or in any other manner provided by law. After the Debtors' Cases are
closed, the Sellers and the Buyer hereby irrevocably submit to the jurisdiction
of the courts of the State of New York for any and all disputes between the
parties hereto, whether in law or equity, arising out of or relating to this
Agreement.
IN WITNESS WHEREOF, the Sellers and the Buyer have caused this Agreement to
be executed on their behalf by their officers thereunto duly authorized, as of
the date first above written.
Einstein/Noah Bagel Corp.
By:/s/ Xxxx X. Xxxxxxx
-------------------
Name: Xxxx X Xxxxxxx
Title: Senior Vice President
Einstein/Noah Bagel Partners L.P.
By:/s/ Xxxx X. Xxxxxxx
-------------------
Name: Xxxx X Xxxxxxx
Title: Vice President, Einstein/Noah Bagel Partners, Inc.
Its: General Partner
Einstein Acquisition Corp.
By: /s/
----------------------
Name:
Title:
Its:
