Second
Amendment to Share Purchase Agreement, Waivers and Consents
by and among
Nebraska Book Company, Inc.
(as "Buyer"),
College Bookstores of America, Inc.
(as the "Company")
and
The Shareholders
of College Bookstores of America, Inc.
(collectively, the "Sellers")
April 30, 2006
This Second Amendment to Share Purchase Agreement, Waivers and Consents
(this "Second Amendment") is hereby entered into as of the 30th day of April,
2006, by and among Buyer, the Company and the Sellers.
Recitals
A. Buyer, the Company and Sellers entered into that certain Share
Purchase Agreement dated April 2, 2006, including the agreement and the exhibits
and schedules thereto (the "Original Agreement"), which was amended by that
certain First Amendment to Share Purchase Agreement dated as of April 11, 2006
(the "First Amendment") (the Original Agreement as amended by the First
Amendment is referred to herein as the "Agreement").
B. Due to various events which have occurred and due diligence
performed during the Interim Period, and for the purpose of the parties
providing certain consents and waivers pursuant to the Agreement, and making
certain modifications and amendments to the Agreement, the parties desire to
enter into this Second Amendment, as set forth herein.
C. Section 11.2 of the Agreement provides that the Agreement may be
amended by a written instrument executed by all of the parties to the Agreement;
Section 7.3 provides that the Buyer may grant its consent to various actions in
the operation of Company's business during the Interim Period; and Article 9
provides for the written waiver of the conditions to Closing.
NOW, THEREFORE, Buyer, the Company and Sellers, constituting all of the
parties to the Agreement, hereby agree as follows:
A. The following amendments or modifications are hereby made to the
Agreement:
1. In the definition of "Closing Payment," "2.2(c)" is changed to
"2.2(d)."
2. The definition of "Escrow Agreements" is amended to add "and Section
2.2(c)" after "Section 2.2(b)."
3. The definition of "Marcus Payment Taxes" is deleted.
4. [INTENTIONALLY DELETED]
5. Section 2.2(a) is amended to delete the words ", less an amount
equal to the Marcus Payment Taxes, less the value of any tax deductions for
paying same."
6. Section 2.2(f) is amended to add the words "(excluding any penalties
or additions related thereto)" following the word "Taxes" each place such term
is used in the first sentence.
7. Section 2.2(g) is amended to change "$725,000" to "$715,168.86" and
to add the following sentence: "The Company's payment described in this Section
2.2(g) may be made indirectly through Xxxxxxxx, for administrative convenience
purposes, it being acknowledged that the Company is the source of the payment as
consideration described in the First Amendment agreement attached hereto as
EXHIBIT F."
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8. Section 2.3(a) is amended to add the words "and Xxxxxxxx and its
representatives" after the word "representatives" in the last sentence.
9. The last line of Section 2.3(c) is deleted.
10. Section 3.2(e) is amended to delete the remainder of the sentence
beginning with the words ", The Benefit Plans".
11. Section 4.1 is amended to add the words "(other than any Tax
Licenses)" after the word "approval" in the last line.
12. Section 4.2(a) is amended to add the following new sentences after
the first sentence: "The Company records also reflect that an additional 587.375
Shares are held in the Company's treasury and considered issued but not
outstanding. .415 Shares were redeemed from the ESOP Trust as of December 23,
2004 pursuant to a Stock Redemption Agreement by and between Company and the
ESOP Trust of even date therewith. The other 586.96 Shares were redeemed from
Hooverton, L.P. ("Hooverton") as of January 5, 2004 pursuant to that certain
Stock Purchase Agreement dated December 22, 2003 by and among, Company,
Hooverton, the Sellers and others." Section 4.2(a) is further amended to add the
following words to the beginning of each of the last two sentences: "Except as
set forth on SCHEDULE 4.2(A),".
13. Section 4.6 is amended to add the following words to the beginning
of the last sentence: "Except as set forth on SCHEDULE 4.6,".
14. In Section 4.7, the phrase "Except as set forth in Schedule 4.7" is
deleted and replaced with: "Except as set forth in any Leased Store Contract,
the Secondary Transaction documents, or as set forth in SCHEDULE 4.7".
15. Section 4.9(i) is amended to add the following words at the
beginning of the paragraph: "Except as provided in this Agreement,".
16. Section 4.9(o) is amended to add the following words at the
beginning of the paragraph: "Except as set forth on SCHEDULE 4.9(o),".
17. Section 4.12 is amended to add the words "Other than for any
property being supplied by a college under a Leased Store Contract," to the
beginning of each of the last two sentences.
18. Section 4.17(c) is amended to add the words "Except as set forth on
SCHEDULE 4.17," to the beginning of such paragraph.
19. Section 4.24(a) is deleted in its entirety and replaced with the
following: "(a) SCHEDULE 4.24 contains a list of all Benefit Plans of the
Company. Except as required by this Agreement, the Company has not adopted or
amended in any material respect any Benefit Plan since the June 30, 2005 Annual
Financial Statement. The Company has no liability with respect to any benefit
plans or arrangements to provide any type of employee benefit or compensation or
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perquisite (other than ongoing liabilities payable in the ordinary course of
business) other than under the Benefit Plans."
20. Section 4.24(d) is amended to add the words "Except with respect to
the split dollar arrangements referred to in the Employment Agreements attached
as Exhibits hereto," at the beginning of the last sentence.
21. [INTENTIONALLY DELETED]
22. A new Section 6.8 is added as follows: "Section 6.8 Receipt of
Documents. To its Knowledge, Buyer has received copies of all Company-related
documents specifically identified on the Schedules which have been requested by
Buyer, except as set forth on Schedule 4.33."
23. Section 7.11(b) is amended to delete the words "pursuant to the
terms of the Employment Agreements" and replace them with the words "as set
forth in the Employment Agreements."
24. Section 7.12(a) is amended to add the words "and Xxxxx Van Mer"
after the words "at the Private Stores" in the 2nd to last line.
25. Section 7.13(a) is deleted in its entirety and replaced with the
following: "(a) At least one day prior to Closing, the Company and/or Buyer (as
indicated below) shall take the following actions, contingent upon the Closing
occurring and contingent upon employees of the Company and their covered
dependents being eligible for the medical plan sponsored by Buyer as set forth
herein:
(i) The Company will cause to be adopted, resolutions to
transfer sole sponsorship of the Medical Plan to Xxxxxxxx;
(ii) The Company and Buyer shall take steps necessary to
adopt the Buyer's medical plan for claims incurred after the
Closing; and
(iii) the Company will cause HIPAA Certificates of
Creditable Coverage to be prepared based on coverage ceasing on
Closing for each current participant and eligible beneficiary and
for each participant who terminated coverage if not previously
provided. The Company shall provide copies of such HIPAA
Certificates of Creditable Coverage to Buyer at Closing, in
addition to providing such certificates to participants and
eligible beneficiaries."
26. Section 7.13(d) is deleted and the following is substituted in lieu
thereof: "Anything contained in this Section 7.13 to the contrary
notwithstanding, Buyer and the Company agree that except as provided in the
shared services agreement between Company and Xxxxxxxx, (i) the Company will
remain liable for its obligations under the Medical Plan through the Closing
Date with regard to the Company's employees; and (ii) Xxxxxxxx will have no
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liabilities or obligations with respect to any medical or health care claim,
expense or cost incurred or accrued by employees of the Company following the
Closing Date. Xxxxxxxx will assist in the transition to the new plan at the
expense of the Company. If requested, Xxxxxxxx will use CRE to provide an
accounting of the financial obligations of the Company as of a date certain
prior to Closing."
27. Section 7.14 is deleted in its entirety and replaced with the
following: "7.14 Payment to Xxxx and Xxxxx Xxx Xxxxxx. For administrative
convenience purposes, Xxxxxxxx will make the payment described in this Section
7.14 on behalf of the Company. The Post-Secondary Transaction Sellers will cause
the Company to reimburse Xxxxxxxx, in accordance with past payroll practices,
for the payment of $865,168.86 (plus any of $16,242.69 in payroll taxes due on
said payment) to be paid from Xxxxxxxx to Xxxx and Xxxxx Xxx Xxxxxx (less any
required withholding of Taxes on such payment), upon Closing and contingent on
execution and delivery of EXHIBIT F by all parties to EXHIBIT F." Exhibit F is
deleted and replaced with Exhibit F hereto.
28. Section 7.16 is deleted in its entirety and replaced with the
following: "7.16 Qualified Plan Contributions. The Company shall be permitted to
contribute the sum of three hundred thousand dollar ($300,000.00) to the ESOP,
and to contribute the customary amount of the employer's portion to the
Company's Profit Sharing and Savings Plan, and such payments shall be considered
to be in the OCB. At least one day prior to Closing, the Company shall amend the
ESOP to eliminate the last day of the plan year employment requirement from the
allocation conditions, to reduce the hours of service requirement for an
allocation to three hundred thirty-three (333) hours of service for the 2006
plan year and to provide for a special allocation date as of the date the three
hundred thousand dollar ($300,000.00) contribution is made."
29. [INTENTIONALLY DELETED].
30. Section 9.2(m) is amended to change the reference to "Escrow
Agreement and the Other Claims Escrow Agreement" to "Escrow Agreements", and
delete the words "and such agreements shall remain in full force and effect."
31. Section 9.2(o) is amended to add the following new sentence at the
end, as follows: "The Company's Profit Sharing and Savings Plan's trustees shall
have delivered an accounting of all trust assets and such other Profit Sharing
and Savings Plan documents and records as may be reasonably requested by Buyer,
their written resignation as Profit Sharing and Savings Plan trustees to the
extent not covered elsewhere in this Agreement, and if requested, transfer of
retirement accounts to representatives of Buyer in compliance with applicable
plan documents."
32. 9.2(z) is amended to add the following new sentence at the end, as
follows: "The agreement shall also provide that the Company shall be responsible
for two-thirds (2/3) of the expenses for the purpose of administering claims
incurred prior to Closing but unpaid as of the Closing that are paid within
three (3) months of Closing after such time Xxxxxxxx shall be solely responsible
for any such claims."
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33. Section 9.3(d) is amended to replace "2.2(c)" with "2.2(d)."
34. Section 9.3(e) is amended to: (i) replace the reference to "Escrow
Agreement" with "Escrow Agreements"; (ii) delete the words "and such agreements
shall remain in full force and effect"; and (iii) add the words "and the amount
required under Section 2.2(c) of this Agreement" at the end of the sentence.
35. Section 10.1(a)(iv) of the Agreement is deleted in its entirety and
replaced with the following: "(iv) any Liability and claims related to the
Secondary Transaction (other than those set forth in Section 2.4 of the Asset
Purchase Agreement executed in conjunction with the Secondary Transaction),
including, without limitation, any claims by employees of the Private Stores
(other than medical claims) and any Liabilities and claims associated with the
operation of the Private Stores prior to Closing is."
36. Section 10.1(a)(v) is amended by deleting all references to
"$725,000" and replacing such references with "$715,168.86" and adding the
following at the end of the sentence: "payment to Xxxx and Xxxxx Xxx Xxxxxx
under any provision of this Agreement, notwithstanding any contrary provision in
this Agreement."
37. Section 11.10 is deleted in its entirety and replaced with the
following: "Section 11.10 Sellers' Representative Agreement. Each Post-Secondary
Transaction Seller acknowledges that he, she or it is a party to that certain
Sellers' Representative Agreement executed in conjunction with the Transactions,
and said Seller is bound and continues to be bound by any term or provision
contained therein."
38. A new Section 11.14 is added to provide the following: "Section
11.14 Certain Agreements. Notwithstanding any provision to the contrary in this
Agreement, Post-Secondary Transaction Sellers make no representation or warranty
with respect to the Non-Competition Agreement, in the form of Exhibit C(3)
attached to this Agreement, or the Shared Services Agreement referred to in
Section 9(z) of this Agreement, nor are either such agreements to be considered
Transaction Documents, or part of the Transaction for purposes of any opinions
of counsel of the Post-Secondary Transaction Sellers under this Agreement."
B. The conditions contained in Sections 9.2(n) (with respect to the
ESOP Trust), 9.2(p), 9.2(u), 9.2(v) and 9.2(y) of the Agreement are hereby
waived by Buyer.
C. The conditions contained in Sections 9.3(k) are hereby waived by
Sellers.
D. Buyer hereby consents to: (i) the amendments made to Company's
Bylaws pursuant to that certain Unanimous Joint Written Consent of the
Shareholders and Directors of the Company dated April 27, 2006; (ii) any action
taken by Seller to be effective at or prior to Closing which is disclosed on or
referenced in Supplemental Schedule 4.26; and (iii) the terms and provisions of
the Secondary Transaction documents which have been reviewed by Buyer and its
counsel.
E. Buyer and Company jointly consent to not pursue any Required
Consents as required by Section 7.5 of the Agreement.
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F. The parties agree that the schedules attached hereto are the
supplemental schedules required in the Agreement.
G. Buyer, the Company and Sellers confirm that the Agreement is in full
force and effect, as amended by this Second Amendment, as of the date hereof.
H. This Second Amendment may be executed in any number of counterparts,
each of which shall have the same force and affect as an original, but all of
which together shall constitute a single instrument. Facsimile signatures on
this Second Amendment shall be deemed to be originals for all purposes.
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IN WITNESS WHEREOF, this Second Amendment has been executed by the
parties hereto as of the day and year first written above.
COLLEGE BOOKSTORES OF AMERICA, INC. NEBRASKA BOOK COMPANY, INC.
By: /s/ E. Xxxxx Xxxxx By: /s/ Xxxx X. Xxxxxxxx
-------------------------------- --------------------------------
E. Xxxxx Xxxxx, President Xxxx X. Xxxxxxxx, President
SELLERS:
/s/ E. Xxxxx Xxxxx /s/ Xxxxxxx X. Xxxxxxx
----------------------------------- -----------------------------------
E. Xxxxx Xxxxx, Revocable Trust Xxxxxxx X. Xxxxxxx, Stockholder
dated November 23, 1993,
Stockholder
Hooverton, L.P., Stockholder Xxxxxxx Book Company, a Missouri
Corporation, Stockholder
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxx X. Xxxx
-------------------------------- --------------------------------
Xxxx Xxxxxx, Its General Partner Xxxxx X. Xxxx, Its President
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxx Xxxxxxxx
----------------------------------- -----------------------------------
Xxxxxx X. Xxxxxxx, as co-Trustee of Xxxx Xxxxxxxx, Stockholder
the Xxxxxx X. Xxxxxxx and Xxxxx X.
Xxxxxxx Trust, Stockholder
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxxx Xxxxxxxxx
----------------------------------- -----------------------------------
Xxxxx X. Xxxxxxx, as co-Trustee of Xxxxxx Xxxxxxxxx, Stockholder
the Xxxxxx X. Xxxxxxx and Xxxxx X.
Xxxxxxx Trust, Stockholder
College Book Stores of America, Inc.,
Employee Stock Ownership Trust,
Stockholder
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxx Xxxxx
-------------------------------- --------------------------------
Xxxxxxx X. Xxxxxxx, co-Trustee Xxxxxx Xxxxx, co-Trustee
By: /s/ E. Xxxxx Xxxxx
--------------------------------
E. Xxxxx Xxxxx, co-Trustee
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/s/ Xxxxxx Xxxxx /s/ Xxxx Xxxxxx
----------------------------------- -----------------------------------
Xxxxxx Xxxxx, Stockholder Xxxx Xxxxxx, Stockholder
/s/ Xxxxxxx X. Xxxxxxxxx /s/ Xxxx Xxxxxxx
----------------------------------- -----------------------------------
Xxxxxxx X. Xxxxxxxxx, Stockholder Xxxx Xxxxxxx, Stockholder
/s/ Xxxxx X. Xxxx /s/ Xxxxxxx Xxxxxxx
----------------------------------- -----------------------------------
Xxxxx X. Xxxx, Stockholder Xxxxxxx Xxxxxxx, Stockholder
/s/ Xxxx Xxxxxx
-----------------------------------
Xxxx Xxxxxx, XXX Trustees
U/I Xxxx Xxxxxx dated May 23, 1984,
as amended
/s/ Xxxxx Xxx Xxxxxx /s/ Xxxx Xxxxxx
----------------------------------- ---------------------------------
Xxxxx Xxx Xxxxxx, XXX Trustees Xxxx Xxxxxx, Trustee of
U/I Xxxxx Xxx Xxxxxx The Picardy Trust dated
dated May 23, 1984, as amended December 30, 2005
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