EXHIBIT 2.2
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT (this "Amendment"),
dated April 24, 2003, is made and entered into by and between The Xxxxxx Food
Company, a Minnesota corporation (the "Purchaser"), Flowers Foods, Inc., a
Georgia corporation (the "Parent") and Xxx. Xxxxx'x Bakeries, LLC, a Georgia
limited liability company (the "Seller").
WHEREAS, the Purchaser, the Parent and the Seller have entered into
that certain Asset Purchase Agreement, dated January 29, 2003 (the "Purchase
Agreement"), wherein Seller agrees to sell, and Purchaser agrees to purchase,
the Purchased Assets described therein; and
WHEREAS, the Purchaser, the Parent and the Seller desire to amend
certain of the schedules to the Purchase Agreement, pursuant to the terms of
this Amendment;
NOW THEREFORE, for and in consideration of the mutual premises and
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. All capitalized terms used herein shall have the meaning given
to each such term in the Purchase Agreement if such term is not separately
defined herein.
2. Schedule 2.1(b) (Excluded Contracts) shall be amended to
include the agreements listed on Exhibit A hereto.
3. Schedule 2.2 (Retained Assets) in its current form shall be
deleted in its entirety and replaced with a new Schedule 2.2 in the form
attached hereto as Exhibit B.
4. Schedule 3.1 (Excluded Accounts Payable) shall be amended to
include the agreement described on Exhibit C hereto.
5. Schedule 6.2 (Authority; Conflicts; Compliance with Laws) in
its current form shall be deleted in its entirety and replaced with a new
Schedule 6.2 in the form attached hereto as Exhibit D.
6. Schedule 6.7(b) (Capital Leases) shall be amended to include
the matter described on Exhibit E hereto.
7. Schedule 6.7(c) (Listed Equipment Leases) shall be amended to
include the agreements described on Exhibit F hereto.
8. Schedule 6.7(h) (Condition of Equipment and Machinery) shall
be amended to include the item listed on Exhibit G hereto.
9. Schedule 6.7(i) (Fixed Asset Listing) in its current form
shall be deleted in its entirety and replaced with a new Schedule 6.7(i) in the
form attached hereto as Exhibit H.
10. Schedule 6.9 (Intellectual Property) in its current form shall
be deleted in its entirety and replaced with a new Schedule 6.9 in the form
attached hereto as Exhibit I.
11. Schedule 6.10 (Litigation; Notification) shall be amended to
include the matter described on Exhibit J hereto.
12. Schedule 6.11(a) (Contracts) in its current form shall be
deleted in its entirety and replaced with a new Schedule 6.11(a) in the form
attached hereto as Exhibit K.
13. Schedule 6.16 (Absence of Changes) shall be amended to include
the agreement described on Exhibit L hereto.
14. Schedule 6.23(d) (Prepaid Expenses and Deposits At December
28, 2002) shall be amended to include the item described on Exhibit M hereto.
15. Schedule 9.2(b) (London Pie Line) in its current form shall be
deleted in its entirety and replaced with a new Schedule 9.2(b) in the form
attached hereto as Exhibit N.
16. Schedule 10.1(d) (Consents Required for Closing) in its
current form shall be deleted in its entirety and replaced with a new Schedule
10.1(d) in the form attached hereto as Exhibit O.
17. The parties hereto hereby reaffirm their post-closing
obligations set forth in Section 9.1 of the Purchase Agreement.
18. The parties hereto agree that Parent or Seller shall, upon
delivery of invoices therefor, reimburse Purchaser for the actual costs incurred
by Purchaser in purchasing (a) 9 copies of Microsoft Office XP Standard
licenses; (b) 343 Microsoft Windows 2003 client access licenses ("CALs"); (c)
two Oracle ASFU licenses for Production Server cluster with Failsafe, ten Oracle
ASFU licenses for Archive Server, and one Oracle ASFU license for TestServer,
plus maintenance and support services for such software, up to a maximum of
$34,272; and (d) a number not to exceed thirty-five laptop personal computers,
up to a maximum of cost of $100,000.
19. Seller agrees that it shall use commercially reasonable
efforts to have its employees delete from any laptop computers retained by
Seller all data relating to Seller's frozen dessert products.
20. To the extent the Purchase Agreement, pursuant to Sections
3.1(b), 5.1, 8.7(a) or otherwise, requires any of the parties thereto to bear
all or a certain portion of any sales, use, transfer, vehicle transfer, stamp,
conveyance, value added or other similar taxes, recording or filing fees,
notarial fees and other similar transaction costs, the payment obligations of
each such party with respect to such costs shall be reconciled and determined
(taking into account the amounts of all such payments made by or for the account
of the parties at Closing and thereafter) at the same time that the purchase
price adjustment described in Section 4.2 of the Purchase Agreement is
determined pursuant to the terms of such section.
21. The parties hereto agree that as of the Effective Time, there
shall be deemed to be no Accounts Payable, other than the payment obligation to
Sysco described in Section 4.4 of the Purchase Agreement.
22. Notwithstanding the terms of Section 4.4 of the Purchase
Agreement, for purposes of Closing, the remaining payment obligation under the
letter agreements with Sysco shall be deemed to be Two Million Six Hundred
Twenty-Five Thousand Eight Hundred Ten Dollars ($2,625,810), and the actual
amount of such payment obligation to Sysco shall be determined and made subject
to the purchase price adjustment described in Section 4.2 of the Purchase
Agreement.
IN WITNESS WHEREOF, each of the Purchaser, the Parent and the Seller
have caused this First Amendment to Asset Purchase Agreement to be executed as
of the date first indicated above.
The Xxxxxx Food Company
"PURCHASER"
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Secretary
Flowers Foods, Inc.
"PARENT"
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Secretary and General Counsel
Xxx. Xxxxx'x Bakeries, LLC
"SELLER"
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Secretary and General Counsel
