EXHIBIT 2.2
POST CLOSING PURCHASE PRICE MODIFICATION AGREEMENT
THIS POST CLOSING PURCHASE PRICE MODIFICATION AGREEMENT (this
"Modification Agreement") is made and entered into as of the 17th day of
July, 1997, by and among LOTS A' BAGELS, INC., formerly known as LAB
Acquisition Corporation, a Kansas corporation ("Buyer"), NEW YORK BAGEL
ENTERPRISES, INC., a Kansas corporation and the parent corporation of Buyer
("NYBE"), JBA ENTERPRISES, INC., formerly known as Lots A' Bagels, Inc., a
Colorado corporation ("Seller"), and XXXXXXX X. XXXXXXXXX AND XXXXX X.
XXXXXXXXX, who are owners of all of the issued and outstanding capital stock
of Seller (collectively, "Stockholders").
W I T N E S S E T H:
WHEREAS, The parties entered into a certain Asset Purchase Agreement
dated November 25, 1996 (the "Agreement ");
WHEREAS, Article IV of the Agreement provides for certain Purchase Price
consideration at Closing, including the Initial Cash, the assumption of the
Assumed Liabilities and the Initial Promissory Note, which is subject to
offset, all of which the parties acknowledge as paid, assumed and delivered
by Buyer and received by Seller;
WHEREAS, Article IV of the Agreement also provides for certain
contingent Purchase Price consideration to be rendered after Closing pursuant
to the calculation of the Final Statement of Operations which determines the
Final Purchase Value, including the potential offset to the Initial
Promissory Note, the potential issuance of the Final Promissory Note, the
potential issuance of the Warrant and the potential additional cash portion
of the Adjustment; and
WHEREAS, The parties desire to modify the Purchase Price to be rendered
after Closing as set forth herein, all in accordance with the terms and
conditions hereof.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound, hereby agree as follows:
1. DEFINED TERMS; RECITALS. Unless otherwise defined herein, the
capitalized terms utilized herein shall have the meanings set forth in the
Agreement. The above recitals are incorporated herein as if originally set
forth herein.
2. MODIFICATION OF TERMS OF AGREEMENT. Notwithstanding the terms of
the Agreement or the determination of the Final Statement of Operations and
the related Final Purchase Value, the parties agree that Buyer will pay on
the date of this Agreement by means of federal funds wire transfer pursuant
to Seller's instructions Five Hundred Fifteen Thousand Dollars ($515,000.00)
to Seller (the "Post Closing Payment"). The parties acknowledge and agree
that upon Buyer's payment of the Post Closing Payment the same will be
considered payment in full by Buyer of all Purchase Price obligations,
whether as of the Closing Date or thereafter, including, without limitation,
the potential adjustment to the Initial Promissory Note, the issuance of the
Final Promissory Note, the issuance of the Warrant and the cash portion of
the Adjustment.
3. CANCELLATION OF THE INITIAL PROMISSORY NOTE. Upon Buyer's payment
of the Post Closing Payment, Seller shall cancel the Initial Promissory Note
by marking it "Canceled-July 17, 1997," executing the same and delivering it
to Buyer by facsimile and by overnight delivery.
4. SURVIVAL OF AGREEMENT. Except as set forth herein, no other
provisions of the Agreement are modified and all provisions of the Agreement
and any agreement, certificate or other document delivered or given pursuant
to the Agreement shall survive the completion of the transactions
contemplated by this Modification Agreement, including, without limitation,
all terms, covenants, representations, warranties, indemnifications,
agreements and other provisions of the Agreement and such related documents.
5. ALLOCATION OF POST CLOSING PAYMENT. Buyer, Seller and Stockholders
covenant and agree with each other that the Post Closing Payment shall be
allocated to goodwill for purposes of purchase price allocation. Buyer and
Seller covenant to file all tax returns on the basis consistent with such
allocation. Seller, if necessary, and Buyer will each file a supplemental
Internal Revenue Service Form 8594 reflecting the final agreed upon Purchase
Price allocation with their respective 1997 federal income tax returns.
6. AMENDMENT. This Modification Agreement may be amended or modified
in whole or in part only by an agreement in writing executed in the same
manner as this Modification Agreement and making specific reference thereto.
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7. COUNTERPARTS; FACSIMILE SIGNATURES. This Modification Agreement
may be executed in one or more counterparts, all of which taken together
shall constitute one instrument. Facsimile signatures of the parties hereto
shall be binding.
8. BINDING ON SUCCESSORS AND ASSIGNS. This Modification Agreement
shall be binding upon, inure to the benefit of, and be enforceable by and
against, the parties hereto and their respective heirs, personal
representatives, successors and permitted assigns; provided, however, that
nothing contained in this Modification Agreement shall confer upon any other
person not a party to this Modification Agreement any rights or remedies
hereunder. This is not a third party beneficiary contract. In particular,
without limitation, it is not the intention of the parties that this
Modification Agreement be a contract of which any governmental entity is a
third party beneficiary. No one shall be entitled to enforce any provision
of this Modification Agreement except the parties hereto, their successors
and permitted assigns.
9. HEADINGS AND DEFINITIONS. The headings in the paragraphs of this
Modification Agreement are inserted for convenience only and in no way alter,
amend, modify, limit or restrict the contractual obligation of the parties.
10. EXHIBITS. The Exhibits hereto form an integral part of this
Modification Agreement and are incorporated herein by reference and expressly
made a part hereof.
11. PUBLIC ANNOUNCEMENTS. The parties agree that all statements and/or
public announcements, including those to the media, concerning this
transaction shall be subject to Buyer's and NYBE's prior written approval.
Buyer and NYBE may make any statement and/or public announcement concerning
this transaction in their sole discretion.
12. ENTIRE AGREEMENT; LAW GOVERNING. All prior negotiations and
agreements between the parties hereto are superseded by this Modification
Agreement, and there are no understandings or agreements other than those
expressly set forth herein or in any Exhibit delivered pursuant hereto,
except as modified in writing concurrently herewith or subsequent hereto.
This Modification Agreement shall be governed by and construed and
interpreted according to the laws of the State of Kansas.
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IN WITNESS WHEREOF, this Modification Agreement has been duly executed
by Buyer, NYBE, Seller and Stockholders as of and on the date first above
written.
LOTS A' BAGELS, INC.
By /s/ XXXXXX X. XXXXXX /s/ XXXXXXX X. XXXXXXXXX
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Xxxxxx X. Xxxxxx, President XXXXXXX X. XXXXXXXXX
"Buyer"
NEW YORK BAGEL ENTERPRISES, INC. /s/ XXXXX X. XXXXXXXXX
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XXXXX X. XXXXXXXXX
By /s/ XXXXXX X. XXXXXX "Stockholders"
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Xxxxxx X. Xxxxxx, Chief Executive Officer
"NYBE"
JBA ENTERPRISES, INC.
By /s/ XXXXXXX X. XXXXXXXXX
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Xxxxxxx X. Xxxxxxxxx, Chief Executive Officer
"Seller"
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