EXHIBIT 2.3
EXECUTION COPY
AMENDMENT NO. 2 TO PURCHASE AGREEMENT
This AMENDMENT NO. 2 TO PURCHASE AGREEMENT (this "Amendment")
is made and entered into as of January 23, 2001, by and between CONOPCO, INC.
("Conopco"), a New York corporation, and FRENCH FRAGRANCES, INC. ("Purchaser"),
a Florida corporation.
WITNESSETH:
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WHEREAS Conopco and Purchaser wish to amend certain provisions
of the Purchase Agreement dated as of October 30, 2000, as amended previously by
Amendment No. 1 to the Purchase Agreement dated as of December 11, 2000, by and
between Conopco and Purchaser (as so amended, the "Purchase Agreement"), and as
hereinafter provided.
NOW, THEREFORE, for good and valuable consideration, the
receipt and legal sufficiency of which is hereby acknowledged, and subject to
the fulfillment of the conditions set forth below, the parties hereto agree as
follows:
1. Section 1.1 of the Purchase Agreement is hereby amended as
follows:
(a) The definition of "Purchased Assets" contained therein is
amended by adding to the end thereof: "Notwithstanding anything to the
contrary contained herein, assets located in Canada shall not be
"Purchased Assets" for purposes of Sections 4.5, 4.6, 4.8(a), 4.8(b),
4.8(c), 4.11(a), 4.11(b), 4.11 (c), 4.17(a), 4.21 and 4.26.".
(b) The definition of "Sellers" contained therein is amended
by adding to the end thereof: "Notwithstanding anything to the contrary
contained herein, U L Canada Inc. shall not be a "Seller" for purposes
of Section 4.24.".
2. Sections 3.2(c) and 3.2(e) of the Purchase Agreement are
hereby amended by deleting the term "Closing Inventory" contained therein and
substituting in replacement thereof the term "Purchased Inventory".
3. Section 4.9(d) of the Purchase Agreement shall be deleted
in its entirety and the following substituted replacement thereof:
(d) With respect to each Conopco Benefit Plan that is not
subject to United States Laws and any payments due to any
non-US employees pursuant to foreign Laws payable upon
termination of employment which are commonly known as
"termination indemnities" (a "Foreign Benefit Plan") which is
assumed by Purchaser, the assets and Liabilities of which are
transferred to Purchaser or for which Purchaser becomes
responsible by operation of Law:
(i) all employer and employee contributions to each
Foreign Benefit Plan required by law or by the terms
of such Foreign Benefit Plan have been made or, if
applicable, accrued in accordance with normal
accounting practices;
(ii) the fair market value of the assets of each
funded Foreign Benefit Plan, the liability of each
insurer for any Foreign Benefit Plan funded through
insurance or the book reserve established for any
Foreign Benefit Plan, together with any accrued
contributions, is sufficient to procure or provide
for the accrued benefit obligations, as of the
Closing Date, with respect to all participants in
such plan according to the actuarial assumptions and
valuations most recently used to determine employer
contributions to such Foreign Benefit Plan (it being
understood that this clause (ii) shall not cover
"termination indemnities" except to the extent such
amounts are required to be funded under foreign
Laws); and
(iii) each Foreign Benefit Plan required to be
registered has been registered and has been
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maintained in good standing with applicable
regulatory authorities.
4. Section 9.1(j) is hereby amended by deleting such section
in its entirety and substituting in replacement thereof:
(j) Fully executed originals of each Real Property Lease to
the extent that they are practicably available, and to the
extent that the fully executed original is not available, the
best reasonably available documentation of such Real Property
Lease, together with all amendments, extensions, assignments
and memoranda as reasonably available thereof, together with,
to the extent some exist, nondisturbable and attorney
agreement(s) in respect of such Real Property Leases, as may
have been executed and furnished to the tenant thereunder by
the holder of any underlying lease or mortgage to which the
landlord's interest therein is subject.
5. Section 10.2(a) of the Purchase Agreement shall be amended
by adding the following to the end of the first sentence thereof:
; provided, further, however, that with respect to Foreign
Employees participating in a Canadian pension plan, Purchaser
shall not be required to continue any such pension plan in
effect as of the Closing Date so long as Purchaser takes into
account the value of the benefits provided to such Foreign
Employees under such pension plan in determining whether the
employee benefit plans, arrangements and perquisites are
comparable in the aggregate to those provided to such
employees immediately prior to the Closing Date.
6. Section 10.2(a) of the Purchase Agreement, as heretofore
amended, shall be further amended by adding the following sentence to the end
thereof:
With respect to any Foreign Benefit Plan, the Liabilities in
respect of which are assumed by Purchaser, transferred to
Purchaser or for which Purchaser becomes responsible by
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operation of Law, to the extent that such Liabilities (as
determined in accordance with the requirements of applicable
foreign Laws and local practices (including, without
limitation, local accounting practices)) which Purchaser
ultimately becomes liable for as of the Closing Date (or the
Lease End Date, date of transfer or date of determination
under applicable law, whichever is applicable) exceeds the
assets funding such Plan that are transferred to Purchaser
either directly or through the Plan and/or the amounts accrued
in accordance with normal accounting practices in respect of
such Foreign Benefit Plan, Conopco shall (or shall cause one
of its Affiliates to) promptly pay (following the
determination of the amount of such Liabilities) to Purchaser
in cash or otherwise satisfy any such outstanding obligations
with respect to such Foreign Benefit Plan in an amount equal
to such excess Liabilities.
7. Section 10.2 (d) of the Purchase Agreement shall be amended
in its entirety and the following shall be substituted in lieu thereof:
Upon the Lease End Date, Conopco shall (or shall cause one of
its Affiliates to) use its best efforts to pay, to the extent
permitted by law, to each Leased Employee any accrued but
untaken vacation payable from Conopco so as to discharge its
liability for all vacation days. To the extent Conopco is
prohibited by law or has failed to make payment of such
accrued vacation to each Leased Employee, Purchaser shall
receive a reduction in Purchase Price or a cash payment from
Conopco equivalent to such unpaid vacation with which
Purchaser shall discharge Conopco's remaining liability for
accrued vacation to such Leased Employees.
8. Section 10.2(e) of the Purchase Agreement shall be amended
by deleting the third sentence thereof and substituting in replacement thereof
before the existing fourth and last sentence of such Section 10.2(e), which
shall remain unaffected, the following:
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At such time as Conopco is reasonably satisfied that
Purchaser's 401(k) Plan meets the requirements for
qualification under Section 401(a) of the Code, Conopco shall
cause the assets and liabilities of the Transferred Employees
under Conopco's 401(k) Plan to be transferred to Purchaser's
401(k) Plan and Purchaser shall cause the Purchaser's 401(k)
Plan to accept such transfer. Following the transfer of assets
by Conopco, Purchaser shall assume fiduciary responsibility
under the Purchaser's 401(k) Plan to such the Transferred
Employees with respect to the transferred assets. Any such
transfer shall be made in cash, cash equivalents, or in
marketable securities. Following any such transfer of assets
by Conopco, Purchaser shall assume fiduciary responsibility
under the Purchaser's 401(k) Plan to such Transferred
Employees with respect to the transferred assets. and
Conopco's 401(k) Plan shall be relieved of Liability with
respect to such assets and liabilities of such Transferred
Employees thereafter.
9. Section 10.2(f), Certain Welfare Benefits, shall be amended
by adding the following sentence to the end thereof:
Notwithstanding the foregoing, to the extent Transferred
Employees continue to be covered by any of the Conopco Benefit
Plans following the Lease End Date, Purchaser shall be deemed
to have satisfied its obligations under the preceding sentence
to the extent that Purchaser reimburses Conopco for the costs
of such benefits in accordance with the terms of the
Transition Services Agreement (it being understood that to the
extent a cost-reimbursement methodology is not specifically
provided in the Transition Services Agreement, the parties
intend that such employee benefit costs shall be reimbursed in
a manner consistent with the reimbursement methodology set
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forth in the Employee Lease Agreement (assuming for such
purpose that such Transferred Employees were treated as Leased
Employees during the relevant period of coverage under the
Conopco Benefit Plans).
10. Schedule 1.1(a) is hereby amended by deleting therefrom
the items set forth on Schedule A hereto.
11. Schedule 1.1(e) is hereby amended by adding thereto the
items set forth on Schedule B hereto.
12. Schedule 1.1(g) is hereby amended as set forth on Schedule
C hereto.
13. Schedule 1.1(h) is hereby amended as set forth on Schedule
D hereto.
14. Schedule 4.1 is hereby amended as set forth on Schedule E
hereto.
15. Schedule 4.8(a)(v) is hereby amended as set forth on
Schedule F hereto.
16. Schedule 4.8(a)(xii) and clause (ii) of Schedule 4.8(b)
are hereby amended by adding thereto the item set forth on Schedule G hereto.
17. Schedule 4.9(a) is hereby amended to include the
information set forth on Schedule H hereto.
18. Schedule 4.9(e), in the form attached as Schedule I
hereto, is hereby inserted.
19. Schedule 4.10(b) is hereby amended as set forth on
Schedule J hereto.
20. Schedule 4.16(a) is hereby amended as set forth on
Schedule K hereto.
21. Schedule 4.17(b) is hereby amended by deleting such
section in its entirety and substituting in replacement thereof Schedule L
hereto.
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22. Schedule 4.18(a) is hereby amended by deleting such
schedule in its entirety and substituting in replacement thereof Schedule M
hereto.
23. Schedule 4.18(c) is hereby amended as set forth on
Schedule N hereto.
24. Schedule 4.18(d) is hereby amended by deleting such
schedule in its entirety and substituting in replacement thereof Schedule O
hereto.
25. Schedule 4.18(e) is hereby amended as set forth on
Schedule P hereto.
26. Schedule 4.18(J) is hereby amended as set forth on
Schedule Q hereto.
27. Schedule 4.19(a)(i) is hereby amended as set forth on
Schedule R hereto.
28. Schedule 4.19(a)(ii) is hereby amended as set forth on
Schedule S hereto.
29. Schedule 4.21 is hereby amended as set forth on Schedule T
hereto.
30. Schedule 4.23 is hereby amended as set forth on Schedule U
hereto.
31. Schedule 5.10, in the form attached as Schedule V hereto,
is hereby inserted.
32. Annexes 1 through 4 of Schedule 6.12 are hereby amended
and restated to read as set forth on Schedule W hereto. 33. Schedule 10.1(a) is
hereby amended as set forth on Schedule X hereto.
34. Capitalized terms used but not defined herein shall have
the meanings assigned thereto in the Purchase Agreement.
35. Except as otherwise expressly modified by this Amendment,
all terms and provisions of the Purchase Agreement shall be and shall remain
unchanged and the Purchase Agreement is hereby ratified and confirmed and shall
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be and shall remain in full force and effect, enforceable in accordance with its
terms. Any reference in the Purchase Agreement, or in any documents required
thereunder or annexes or schedules thereto, referring to the Purchase Agreement
shall be deemed to refer to the Purchase Agreement as amended by this Amendment.
36. This Amendment and any disputes arising under or related
hereto or thereto (whether for breach of contract, tortious conduct or
otherwise) shall be governed and construed in accordance with the laws of the
State of New York, without reference to its conflicts of law principles. Each of
the parties hereto waives to the fullest extent permitted by law any right to
trial by jury in any action, suit or proceeding brought to enforce, defend or
interpret any rights or remedies under, or arising in connection with or
relating to, this Amendment.
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37. This Amendment may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each
party hereto and delivered to the other party hereto.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to be executed on its behalf by its officers or representatives
thereunto duly authorized, all as of the date first above written.
CONOPCO, INC.,
by /s/ Mart Laius
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Name: Mart Laius
Title: Vice President
FRENCH FRAGRANCES, INC.,
by /s/ E. Xxxxx Xxxxxxx
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Name: E. Xxxxx Xxxxxxx
Title: President and Chief Executive Officer
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