AMENDMENT NO. 1
TO THE
ASSET PURCHASE AGREEMENT
THIS AMENDMENT, dated as of October 7, 1999 (the "Amendment") to the Asset
Purchase Agreement, dated as of September 23, 1999 (the "Asset Purchase
Agreement"), is made by and among Favorite Brands International Holding Corp., a
Delaware corporation, Favorite Brands International, Inc., a Delaware
corporation, Xxxxxx Trucking Corporation, a Delaware corporation and Trolli,
Inc., a Delaware corporation (collectively, the "Sellers"), and Nabisco, Inc., a
New Jersey corporation, Nabisco Brands Company, a Delaware corporation, and
Nabisco Technology Company, a Delaware corporation (collectively, the
"Purchasers"). Capitalized terms used herein and not otherwise defined shall
have the respective meanings set forth in the Asset Purchase Agreement.
WHEREAS, the Sellers and Purchasers desire to amend the Asset Purchase
Agreement;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, the
parties hereto agree as follows:
ARTICLE 1
AMENDMENTS
Section 1.01. Amendment of Section 7.02(c). Section 7.02(c) of the Asset
Purchase Agreement is amended and restated as follows:
(c) if this Agreement is terminated pursuant to Section 7.01(ii), the
Sellers, upon consummation of a Competing Transaction, shall pay the
Purchasers (1) the Break-up Fee and (2) the reasonable fees and
disbursements of the Purchasers' counsel, up to $650,000, incurred as a
result of the Purchasers' attempt to purchase the Acquired Assets;
Section 1.02. Amendment of Section 9.01. The definition of "Break-up Fee"
in Section 9.01 of the Asset Purchase Agreement is amended and restated as
follows:
"Break-Up Fee" means the fee payable by the Sellers jointly and
severally to the Purchasers in the amount of $8,300,000 upon consummation
of a Competing Transaction.
Section 1.03. Amendments to Exhibits C and E. Exhibits C and E, as amended
and restated, are attached hereto.
ARTICLE 2
GENERAL PROVISIONS
Section 2.01. Descriptive Headings. The headings contained in this
Amendment are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Amendment.
Section 2.02. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
the rules of conflict of laws of the State of Delaware or any other jurisdiction
in accordance with Section 8.07 of the Asset Purchase Agreement. The Purchasers
and Sellers irrevocably and unconditionally consent to submit to the
jurisdiction of the Bankruptcy Court for any litigation arising out of or
relating to this Amendment (and agree not to commence any litigation relating
thereto except in the Bankruptcy Court).
Section 2.03. Counterparts; Effectiveness. This Amendment may be executed
in two or more counterparts, each of which shall be deemed to be an original but
all of which shall constitute one and the same agreement. This Amendment shall
become effective when each party hereto shall have received counterparts thereof
signed by all the other parties hereto.
-2-
IN WITNESS WHEREOF, the Sellers and the Purchasers have caused this
Agreement to be executed on their behalf by their officers thereunto duly
authorized, as of the date first above written.
FAVORITE BRANDS
INTERNATIONAL HOLDING
CORP.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
FAVORITE BRANDS
INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
XXXXXX TRUCKING CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
TROLLI, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
NABISCO, INC.
By:
-------------------------
Name:
Title:
IN WITNESS WHEREOF, the Sellers and the Purchasers have caused this
Agreement to be executed on their behalf by their officers thereunto duly
authorized, as of the date first above written.
FAVORITE BRANDS
INTERNATIONAL HOLDING
CORP.
By:
--------------------------------
Name:
Title:
FAVORITE BRANDS
INTERNATIONAL, INC.
By:
--------------------------------
Name:
Title:
XXXXXX TRUCKING CORPORATION
By:
--------------------------------
Name:
Title:
TROLLI, INC.
By:
--------------------------------
Name:
Title:
NABISCO, INC.
By: /s/ Xxxxx Xxxxxxx III
--------------------------------
Name: Xxxxx Xxxxxxx III
Title: Executive Vice President
and General Counsel
NABISCO BRANDS COMPANY
By: /s/ Xxxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Title: President
NABISCO TECHNOLOGY COMPANY
By: /s/ Xxxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Title: President
-4-
