SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT
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SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT (this "Amendment"), dated
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as of July 1, 1998, between XXXXXX X. XXXXXX ("Xxxxxx") and CASINO XXXXXXXX-
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PERRACHON, S.A., a French societe anonyme ("Casino").
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WHEREAS, Xxxxxx and Casino, together with Smart & Final Inc. (the
"Company") and Casino USA, Inc. ("Casino USA"), are parties to a certain Stock
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Purchase Agreement dated as of March 7, 1989, as amended (the "Stock Purchase
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Agreement").
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WHEREAS, the Stock Purchase Agreement provided for the grant to Xxxxxx
of certain rights to require Casino to purchase shares of common stock of the
Company owned by Xxxxxx, which rights have expired by their terms.
WHEREAS, Xxxxxx currently owns and may in the future acquire certain
shares of common stock of the Company and Casino, as an inducement to Xxxxxx to
continue to serve as chief executive officer of the Company, wishes to grant to
Xxxxxx an option to sell to Casino certain of such shares on the terms and
conditions set forth below.
WHEREAS, Xxxxxx and Casino wish to amend the Agreement to provide for
the grant of such option to Xxxxxx and the Company and Casino USA wish to
consent to such Amendment.
NOW THEREFORE, the parties hereby agree as follows:
1. Grant of Option. (a) Casino hereby grants to Xxxxxx an option
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(the "Option") to sell to Casino (or a designee of Casino), free and clear of
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any claims, liens, encumbrances, security interests and charges of any nature
whatsoever ("Liens"), and Casino hereby agrees to purchase (or to cause a
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designee to purchase) upon exercise of the Option, up to an aggregate of
1,000,000 shares of issued and outstanding common stock, par value $0.01 per
share, of the Company ("Shares"), at the times, in the manner and subject to the
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limitations set forth in this Amendment, at a purchase price per Share
determined separately for each exercise of the Option equal to 99.7% of the
average of the closing prices of the Shares on the New York Stock Exchange, as
reported on the New York Stock Exchange Composite Transactions Tape, for the 22
trading days immediately preceding the date on which the relevant Exercise
Notice (as defined below) is given (the "Exercise Price").
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(b) Casino shall be entitled to designate one or more other persons or
entities (including Casino USA) as the purchaser of all or a portion of the
Shares to be purchased in connection with any exercise of the Option (provided
that if a sale to any designee, other than Casino USA, results in Xxxxxx
incurring any cost or fees that would not have been incurred in a sale directly
to Casino, such additional cost or fees shall be borne by Casino (or its
designee)).
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(c) The Option may be exercised by Xxxxxx, in part, from time to time
during the period commencing on January 1, 2000 and terminating on December 31,
2002 (the "Option Period"); provided, however, that the Option may not be
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exercised (i) at any one time with respect to fewer than 50,000 or more than
200,000 Shares, (ii) within two months of any prior exercise, or (iii) with
respect to more than 400,000 Shares in the aggregate during any one calendar
year. The Option shall terminate and Casino shall have no further obligations
hereunder after the Option Period. Notwithstanding the foregoing, this
Amendment and the Option will terminate immediately if at any time on or prior
to December 31, 1999 Xxxxxx voluntarily resigns his position as chief executive
officer of the Company.
2. Exercise of Option; Purchase of Shares. (a) In the event Xxxxxx
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wishes to exercise the Option, Xxxxxx shall send a written notice to Casino
specifying the number of Shares he wishes to sell, the Exercise Price applicable
to such exercise (together with a calculation of such Exercise Price) and an
account for the payment of the exercise price (an "Exercise Notice"). Any
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Exercise Notice shall be irrevocable.
(b) Within 15 days from its receipt of any Exercise Notice, Casino
will notify Xxxxxx in writing of a date not later than 30 days from the date of
such Exercise Notice for a closing of the purchase of Shares pursuant to such
Exercise Notice (a "Closing") and the name of any designee purchaser(s) of
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Shares. At each Closing, (a) Xxxxxx will deliver to Casino (or its designee(s))
(i) a certificate or certificates representing the number of Shares being
purchased in proper form for transfer upon exercise of the Option and (ii) an
opinion of counsel, reasonably satisfactory in form and substance to Casino, to
the effect that the sale of Shares pursuant to the Option will not violate the
Securities Act of 1933 (or any applicable state law governing the offer and sale
of securities) and the rules and regulations thereunder, and (b) Casino (or its
designee(s)) shall pay the aggregate purchase price for the Shares to be
purchased at the Closing by wire transfer to the account designated in the
Exercise Notice of immediately available funds in the amount of the applicable
Exercise Price times the number of Shares to be purchased.
3. Representations and Warranties of Xxxxxx. Xxxxxx represents and
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warrants to Casino (and its designees) that: (a) this Amendment has been duly
executed and delivered by Xxxxxx and constitutes a valid and legally binding
obligation of Xxxxxx enforceable in accordance with its terms; (b) no
authorization, consent or approval of, or any filing with, any public body or
authority is necessary for consummation by Xxxxxx of the transactions
contemplated hereby; and (c) any Shares sold to Casino (or its designees) upon
exercise of the Option will be transferred free and clear of all Liens and
Casino (or its designees) will receive good title to all of such Shares, free
and clear of all Liens.
4. Representations and Warranties of Casino. Casino represents and
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warrants to Xxxxxx that: (a) this Amendment has been duly authorized, executed
and delivered by Casino and constitutes a valid and legally binding obligation
of Casino enforceable in accordance with its terms; and (b) no authorization,
consent or approval of, or any filing with, any public body or authority is
necessary for consummation by Casino of the transactions contemplated by this
Amendment.
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5. Expenses. Each party hereto shall pay their own expenses incurred
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in connection with this Amendment and any exercise of the Option.
6. Entire Agreement; Amendment. This Amendment sets forth the entire
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understanding and agreement between the parties as to the matters covered herein
and supersedes and replaces any prior understanding, agreement or statement of
intent, in each case, written or oral, of any and every nature with respect
thereto (including in particular Sections 6.1 and 6.2 of the Stock Purchase
Agreement which are replaced in their entirety by this Amendment). Except as
expressly amended hereby, the Stock Purchase Agreement shall remain in effect in
all respects in accordance with its terms. This Amendment may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by Xxxxxx and Casino. Except for the right of Casino
to designate purchasers of Shares, no party to this Amendment may assign any of
their rights or obligations under this Amendment without the prior written
consent of the other party hereto.
7. Counterparts. This Amendment may be executed in two or more
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counterparts, each of which shall be deemed to be an original, but each of which
together shall constitute one and the same document.
8. Governing Law. This Amendment shall be governed by and construed
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in accordance with the laws of the State of California, without regard to
principles of conflicts of laws.
9. Binding Effect. This Amendment shall be binding upon, inure to
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the benefit of, and be enforceable by the successors and permitted assigns of
the parties hereto. Nothing expressed or referred to in this Amendment is
intended or shall be construed to give any person other than the parties to this
Amendment, or their respective successors or permitted assigns, any legal or
equitable right, remedy or claim under or in respect of this Amendment or any
provision contained herein. If any term of this Amendment is held to be
invalid, void or unenforceable, the remainder of the terms of this Amendment
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated.
10. Notices. All notices and other communications hereunder shall be
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in writing and shall be given and shall be deemed to have been duly given if
delivered in person or sent by facsimile transmission (followed by overnight
courier) to the parties as follows:
If to Xxxxxx, to:
Xxxxxx Xxxxxx
000 Xxxx Xxxxx Xxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: 805.565.3183
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If to Casino, to:
Casino Xxxxxxxx-Xxxxxxxxx, X.X.
00, xxx xx xx Xxxxxx
00000 Xxxxx-Xxxxxxx Xxxxx 0
Xxxxxx
Facsimile No.: 011.33.4.77.45.39.90
Attention: Xxxxxx Xxxxxxx
with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: 212.225.3999
Attention: Xxxxxx X. Xxxxxxxxx
or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notices of change of
address shall only be effective upon receipt.
IN WITNESS WHEREOF, Xxxxxx and Casino have duly executed this
Amendment as of the day and year first above written.
/s/ Xxxxxx X. Xxxxxx
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XXXXXX X. XXXXXX
CASINO XXXXXXXX-XXXXXXXXX, X.X.
By: /s/ Xxxxxxxxx Xxxxxxxx
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Xxxxxxxxx Xxxxxxxx
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
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Consented to:
CASINO USA, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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SMART & FINAL INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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