FIRST AMENDMENT TO
STOCK PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT, made this 31st day of
March, 1998, by and among FLOWERS INDUSTRIES, INC., a Georgia corporation
(hereinafter referred to as "Purchaser"), ARTAL LUXEMBOURG S.A., a Luxembourg
corporation (hereinafter referred to as "Seller") and KEEBLER FOODS COMPANY, a
Delaware corporation (hereinafter referred to as "Keebler").
WITNESSETH:
WHEREAS, Purchaser, Seller and Keebler entered into a Stock Purchase
Agreement, dated January 28, 1998 (the "Stock Purchase Agreement"); and
WHEREAS, Purchaser, Seller and Keebler desire to amend the Stock
Purchase Agreement as set forth herein.
NOW, THEREFORE, for and in consideration of the premises and the mutual
promises, agreements, representations, warranties and covenants hereinafter set
forth, and the sum of ten dollars and other good and valuable consideration, the
receipt and sufficiency of which is hereby specifically agreed to and
acknowledged, the Stock Purchase Agreement is hereby amended as follows:
1. Section 13.2 of the Stock Purchase Agreement is hereby amended by
deleting said Section in its entirety and substituting in lieu thereof a new
Section 13.2 reading as follows:
13.2 PURCHASES OF KEEBLER STOCK.
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13.2.1 From the Closing Date until the earlier of (i) the date on
which Seller (together with its Affiliates) beneficially owns less
than 4,586,000 shares of Keebler Stock or (ii) twenty-four (24)
months after the termination of the Lockup Period (such period, the
"INITIAL STOCK REPURCHASE CONSENT PERIOD"), any purchase of shares of
Keebler Stock by Purchaser or Keebler (other than purchases (A) by
Purchaser or Keebler pursuant to put rights contained in agreements
in effect on the Closing Date, (B) by Purchaser or Keebler from Artal
or Management so long as such shares of Keebler Stock are not part of
the Public Float at the time of purchase, (C) by Keebler from Bermore
of Bermore's Shares which are permitted to be transferred by Bermore
as a "Monthly Transfer" pursuant to Section 4.2(e) of the Bermore
Agreement or by Purchaser or Keebler, as the case may be, pursuant to
the tag-along and drag-along
rights contained in Sections 4.3 and 4.4 of the Bermore Agreement and
(D) by Purchaser and Keebler which together, in the aggregate with
any prior such purchases, do not exceed (x) fifteen percent (15%) of
the Public Float in Keebler Stock immediately after the Closing,
(PROVIDED that the shares described in clause (y) hereof shall not in
any event be included in calculating the Public Float) plus (y) the
number of shares of Keebler Stock (i) either (A) issued to Management
prior to February 3, 1998 or (B) issued to Management by the Company
subsequent to February 3, 1998 pursuant to a stock option or any
similar plan and (ii) subsequently sold by Management in transactions
resulting in such shares trading in the public market, shall not be
consummated without the prior written consent of Seller, and Keebler
and Purchaser shall not take or permit to be taken any such action
without such prior written consent; PROVIDED, HOWEVER, that the
Extension Period shall be added to the twenty-four (24) month period
set forth in (ii) above; and PROVIDED, FURTHER, that Purchaser will
have the right at any time to purchase the number of shares of
Keebler Stock required to maintain beneficial ownership of at least
fifty-one percent (51%) of Keebler Stock on a fully diluted basis.
13.2.2. After the expiration of the Initial Stock Repurchase Consent
Period (including any Extension Period added thereto) and until the
earlier of (i) the date on which Seller (together with its
Affiliates) beneficially owns less than 4,586,000 shares of Keebler
Stock or (ii) thirty-six (36) months after the termination of the
Lockup Period (the "SECOND STOCK REPURCHASE CONSENT Period"), any
purchase of shares of Keebler Stock by Purchaser or Keebler (other
than purchases (A) by Purchaser or Keebler pursuant to put rights
contained in agreements in effect on the Closing Date, (B) by
Purchaser or Keebler from Artal, Bermore or Management so long as
such shares of Keebler Stock are not part of the Public Float at the
time of purchase, (C) by Keebler from Bermore of Bermore's Shares
which are permitted to be transferred by Bermore as a "Monthly
Transfer" pursuant to Section 4.2(e) of the Bermore Agreement or by
Purchaser or Keebler, as the case may be, pursuant to the tag-along
and drag-along rights contained in Sections 4.3 and 4.4 of the
Bermore Agreement and (D) by Purchaser and Keebler which together, in
the aggregate with any prior such purchases during the Second Stock
Repurchase Consent Period and purchases made during the Initial Stock
Repurchase Consent Period, do not exceed (x) fifteen percent (15%) of
the Public Float in Keebler Stock on the date immediately preceding
any such purchase, (PROVIDED that the shares described in clause (y)
hereof shall not in any event be included in calculating the Public
Float) plus (y) the number of shares of Keebler Stock (i) either (A)
issued to Management prior to February 3, 1998 or (B) issued to
Management by the Company subsequent to February 3, 1998 pursuant to
a stock option or any similar plan and (ii) subsequently sold by
Management in transactions resulting in such shares trading in the
public market, shall not be consummated without the prior written
consent of Seller, and Keebler and Purchaser shall not take or permit
to be taken any such action without such prior written consent;
PROVIDED, HOWEVER, that the Extension Period
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shall be added to the thirty-six (36) month period set forth in (ii)
above, and PROVIDED, FURTHER, that Purchaser will have the right at
any time to purchase the number of shares of Keebler Stock required
to maintain beneficial ownership of at least fifty-one percent (51%)
of Keebler Stock on a fully diluted basis."
2. Each party hereby represents and warrants to the others that: (a)
it has all necessary power and authority (corporate or other) to enter into this
First Amendment to Stock Purchase Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby; (b) the
execution, delivery and performance of this First Amendment to Stock Purchase
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary action (corporate or other); and (c) this First
Amendment to Stock Purchase Agreement has been duly executed and delivered by
such party and assuming due authorization, execution and delivery by the other
parties hereto, constitutes a valid and legally binding obligation of such
party, enforceable against such party in accordance with its terms.
3. This First Amendment to Stock Purchase Agreement shall be governed
by and construed in accordance with the laws of the State of New York without
regard to principles thereof regarding conflict of laws, except for matters
directly within the purview of the General Corporation Law of the State of
Delaware.
4. Except to the extent expressly amended herein, all terms and
conditions of the Stock Purchase Agreement are hereby affirmed and shall remain
in full force and effect.
5. This First Amendment to Stock Purchase Agreement may be executed
in two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, each party hereto has executed or caused
this First Amendment to Stock Purchase Agreement to be executed on its behalf,
all on the day and year first above written.
FLOWERS INDUSTRIES, INC.
"Purchaser"
By: /s/ G. XXXXXXX XXXXXXXX
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Name: G. Xxxxxxx Xxxxxxxx
Title: Secretary and General Counsel
ARTAL LUXEMBOURG S.A.
"Seller"
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Managing Director
KEEBLER FOODS COMPANY
"Keebler"
By: /s/ XXXXXX X. X'XXXXX
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Name: Xxxxxx X. X'Xxxxx
Title: Vice President, Secretary
and General Counsel
