EXHIBIT 10.60
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THIRD AMENDMENT TO
STOCK PURCHASE AND LOAN AGREEMENT
Reference is made to that certain Stock Purchase and Loan Agreement
(the "Original Loan Agreement"), dated as of October 1, 1997, and amended by an
Amendment to Stock Purchase and Loan Agreement dated December 31, 1997 (the
"First Amendment"), and an Amendment dated as of December 21, 1998 (the "Second
Amendment") by and between ANNIE'S HOMEGROWN, INC. (the "Company"), a Delaware
corporation and Xxx X. Xxxxxx ("Key Employee").
This third amendment ("Third Amendment") to the Original Loan
Agreement, as amended, is made as of September 30, 1999 by and between the
Company and Key Employee. Capitalized terms not defined in this Third Amendment
shall have the meaning given to them in the Original Loan Agreement.
BACKGROUND
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A. Key Employee and the Company entered into the Original Loan
Agreement to enable Key Employee to purchase shares of Company Common Stock
pursuant to options that previously were granted by the Company to Key Employee.
B. Pursuant to the Original Loan Agreement, Key Employee borrowed
$67,641.60 from the Company (the "Loan").
C. The Original Loan Agreement stated in Section 6 thereof that the
Principal Amount of the loan will be repaid by the Company under certain
circumstances. A computational error was made in computing the amounts of such
repayments.
D. Key Employee and the Company pursuant to the First Amendment amended
the Original Loan Agreement to correct this error, among other things.
E. Key Employee and the Company pursuant to the Second Amendment
clarified the language in the Original Loan Agreement relating to the Company's
rights upon a change of control and termination of Key Employee's employment.
F. The terms of the Original Loan Agreement provide for annual interest
at the rate of 6.34%, the mid-term Applicable Federal Rate in effect for October
1997, with interest is payable annually on October 1. The entire outstanding
principal of Loan is due on October 1, 2002.
G. Pursuant to Section 6.2(b) of the Original Loan Agreement, as
amended, the Company is required to forgive $16,910.40 of the Principal Amount
in the event that Key Employee is employed by the Company as of September 30,
1999.
H. Key Employee was employed by the Company as of that date and is thus
entitled to forgiveness of a portion of the Loan as described above.
I. Key Employee wishes to waive that forgiveness.
J. Key Employee and the Company wish to further amend the Original Loan
Agreement, as amended, as set forth herein.
AGREEMENT
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IN CONSIDERATION OF THE FOREGOING BACKGROUND AND THE MUTUAL AGREEMENTS
OF THE PARTIES SET FORTH IN THIS THIRD AMENDMENT, THE COMPANY AND KEY EMPLOYEE
AGREE AS FOLLOWS:
SECTION 1. WAIVER OF FORGIVENESS. Key Employee and Company hereby further amend
the Original Loan Agreement to strike Section 6.2(b), as amended, in its
entirety.
THE PURPOSE OF THIS SECTION IS TO WAIVE KEY EMPLOYEE'S RIGHTS TO
FORGIVENESS OF THE PRINCIPAL OF THE LOAN WITH RESPECT TO SEPTEMBER 30, 1999
ONLY. KEY EMPLOYEE RECOGNIZES THAT, BY WAIVING THIS SECTION 6.2(B), THE AMOUNT
OTHERWISE TO BE FORGIVEN WILL COME DUE ON THE MATURITY DATE (UNLESS OTHERWISE
ACCELERATED AS PROVIDED IN THE ORIGINAL LOAN AGREEMENT).
SECTION 2. AMENDMENT TO ACCELERATION CLAUSE.
(a) Key Employee and Company hereby further amend the Original Loan
Agreement, as amended, to strike the first sentence of Section 8.4, and to
replace that sentence with the following text:
In the event that (x) the Company exercises its right to buy
back the Shares from Key Employee pursuant to Section 8.1 of
this Agreement, and (y) the Key Employee's employment has been
terminated for Good Cause (other than as a result of her death
or by her voluntary termination), then any outstanding
Principal Amount and any applicable Interest will be
immediately due and payable and shall be applied against
amounts due to Key Employee for purchase of Shares.
(b) Key Employee and Company hereby further amend the Original Loan
Agreement, as amended, to strike the word "either" in the second sentence of
8.4, and replace that phrase with "(but is not obligated to)".
THE PURPOSE OF THIS SECTION IS TO WAIVE THE COMPANY'S RIGHT TO
ACCELERATE THE MATURITY DATE OF THE LOANS IN THE EVENT THAT THE KEY EMPLOYEE IS
TERMINATED AS A RESULT OF HER DEATH, BY HER VOLUNTARY TERMINATION OR OTHERWISE
NOT FOR GOOD CAUSE.
SECTION 3. RATIFICATION. In all other respects, the Original Loan Agreement, as
amended, is hereby ratified and confirmed.
SECTION 4. COUNTERPARTS. This Third Amendment may be executed in counterparts,
each of which will be considered an original and each of which will constitute
one and the same document.
IN WITNESS WHEREOF, this Third Amendment has been executed as of the
date first set forth above.
ANNIE'S HOMEGROWN, INC.
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx, President and
Chief Operating Officer
KEY EMPLOYEE:
/s/ Xxx X. Xxxxxx
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Xxx X. Xxxxxx
