Amendment No. 1 To Stock Purchase Agreement
-------------------------------------------
AMENDMENT NO.1, dated as of April 1, 1999, to the Stock Purchase
Agreement dated March 10, 1999 (the "Stock Purchase Agreement"), by and among
Aurora Foods Inc., a Delaware corporation ("Buyer"), Sea Coast Foods, Inc., a
Washington corporation (the "Company"), Xxxxxxx Investments Limited Partnership,
a Washington limited partnership and Xxxxx-On Limited Partnership, a Washington
limited partnership (individually, a "Shareholder" and collectively, the
"Shareholders"), and Xxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxx and
Xxxx X. Xxxxx, individually and as the general partners of the Shareholders
(individually, a "General Partner" and collectively, the "General Partners").
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to them in the Stock Purchase Agreement.
Buyer, the Company, the Shareholders and the General Partners desire
to amend the Stock Purchase Agreement as follows:
1. The following sections shall be added to the Stock Purchase
Agreement:
8.19. Tax Refund. The Company has filed and/or will file with the
Prior Tax Returns for refunds (the "Tax Refunds") of federal income taxes on
account of a number of matters. It is agreed that the amount of the Tax Refunds
that is included in the calculation of Working Capital for purposes of computing
the Purchase Price shall not exceed the amount of Taxes payable that are
included in such calculation (such Taxes payable being the "Tax Accrual"). In
the event that one or more Tax Refunds are received by the Company or the Buyer,
and the aggregate amount thereof exceeds the Tax Accrual, Buyer shall pay, or
shall cause the Company to pay, the amount of any such excess (together with any
interest applicable thereto which is received) to the Shareholders in accordance
with their Applicable Percentages. In the event that any claims for the Tax
Refunds are disallowed, then the Shareholders shall pay to the Buyer, in
accordance with their Applicable Percentages, (x) an amount equal to the excess,
if any, of the Tax Accrual over the amount, if any, of any Tax Refunds received
by the Company or the Buyer which the Company or the Buyer has retained pursuant
to the preceding sentence and (y) in the event that the Tax Refunds in respect
of which Buyer or Company has caused payment to the Shareholders pursuant to the
above provisions are subsequently disallowed, an amount equal to such
disallowance. The provisions of Section 8.13(a) will apply to the Company's
claims for Tax Refunds.
8.20. Xxxxxx Xxxxxxxx. The Shareholders and General Partners shall
indemnify the Company and the Buyer against any and all amounts due to, or
billed to the Company by, Xxxxxx Xxxxxxxx & Co. to the extent not accrued or
reserved against in the calculation of Working Capital for purposes of
adjustments to the Purchase Price. Such indemnification obligations shall not
be subject to Section 10.5 or 10.6 but shall be subject to Section 10.8.
8.21. Shrimp Supply Liabilities. Pursuant to Section 8.14 of the
Stock Purchase Agreement, the Company is distributing to a limited liability
company controlled by the Shareholders (the "Shareholders LLC") certain assets
and liabilities related to a seafood business (the "Seafood Business") which are
more particularly described on Exhibit A to the
Xxxx of Transfer and Assignment attached hereto as Schedule 1. The Shareholders
and General Partners agree to indemnify the Company and Buyer against any and
all of the liabilities relating to the Seafood Business to the extent not
accrued or reserved against in the calculation of Working Capital for purposes
of adjustments to the Purchase Price. Such indemnification shall not be subject
to Section 10.5 or 10.6, but shall be subject to Section 10.8.
8.22. Use of Sea Coast Name. The Buyer and the Company hereby
consent that until June 30, 1999 the Shareholders LLC may use the name "Sea
Coast" in its company name and otherwise to carry on the Seafood Business. On
or prior to such date the Shareholders and General Partners shall cause the
Shareholders LLC to change its name so as not to include the words "Sea Coast".
In addition, after June 30, 1999 neither the Shareholders LLC, the Shareholders
or the General Partners shall use the name Sea Coast in the conduct of the
Seafood Business except as otherwise provided in the Stock Purchase Agreement.
2. Supplements. Pursuant to Section 6.2, the Shareholders and
-----------
General Partners supplement and amend Schedules 3.9, 3.23 and 8.14 to the Stock
Purchase Agreement as provided in Exhibit A hereto.
3. Miscellaneous. Except as herein expressly amended, all terms,
-------------
covenants and provisions of the Stock Purchase Agreement are and shall remain in
full force and effect and all references therein to such Stock Purchase
Agreement shall refer to the Stock Purchase Agreement as amended by this
Amendment. This Amendment may be executed by the parties hereto individually or
in combination, in one or more counterparts, each of which shall be an original
and all of which shall constitute one and the same Amendment. Delivery of an
executed counterpart of a signature page by telecopier shall be effective as
delivery of a manually executed counterpart.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, Buyer and the Company have caused this Amendment to be
executed by their respective and duly authorized officers, and the Shareholders
or their respective trustees have duly executed this Amendment, all as of the
date first written above.
BUYER: SHAREHOLDERS:
AURORA FOODS INC. XXXXXXX INVESTMENTS LIMITED
PARTNERSHIP
By /s/ Xxx Xxxxx By /s/ Xxxxxx X. Xxxxxxx
------------------------------------- --------------------------------
Xxx Xxxxx, Executive Vice President Xxxxxx X. Xxxxxxx,
General Partner
By /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Xxxxxxx Xxxxxxx, General Partner
COMPANY XXXXX-ON LIMITED PARTNERSHIP
SEA COAST FOODS, INC.
By /s/ Xxxxxxx X. Xxxxx
--------------------------------
Xxxxxxx X. Xxxxx,
General Partner
By /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxx, President
By /s/ Xxxx X. Xxxxx
--------------------------------
Xxxx X. Xxxxx,
General Partner
GENERAL PARTNERS
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxx
--------------------------- ------------------------------
Xxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxx X. Xxxxx
--------------------------- ------------------------------
Xxxxxxx X. Xxxxxxx Xxxx X. Xxxxx
The following list briefly identifies the contents of the Schedules to Amendment
No. 1 Stock Purchase Agreement, dated as of April 1, 1999 among Aurora Foods
Inc., Sea Coast Foods, Inc., Xxxxxxx Investments Limited Partnership, Xxxxx-On
Limited Partnership and Xxxxxx X. Xxxxxxx, Xxxxxxxx X. Xxxxxxx, Xxxxxxx X.
Xxxxx, and Xxxx X. Xxxxx, individually and as general partners of the
Shareholders. (Terms used but not defined have the meanings assigned to them in
the Stock Purchase Agreement.) In accordance with Regulation S-K under the
Securities Act of 1933 the actual Schedules and Exhibits have not been filed
with the Securities and Exchange Commission (the "Commission"). The Company
hereby agrees to furnish supplementally a copy of any omitted Schedule to the
Commission upon request.
1. Schedule 3.9 -- Officer and Sole Director -- List of officers and sole
director of the Company.
2. Schedule 3.23 -- Insurance Policies -- List of the companies insurance
policies.
3. Schedule 8.14 -- Assets to be Distributed to Shareholders -- List of assets
distributed to the Company's shareholders.
