EXECUTION COPY
AMENDMENT TO
STOCK PURCHASE AGREEMENT
This AMENDMENT TO STOCK PURCHASE AGREEMENT (together with the Schedules
and Attachments hereto, this "Amendment") is made as of the 28th day of October,
1998, by and among AU BON PAIN CO., INC., a Delaware corporation ("Seller"); ABP
HOLDINGS, INC., a Delaware corporation ("ABPH") and ABP CORPORATION, a Delaware
corporation ("Buyer").
W I T N E S S E T H:
WHEREAS, Seller, ABPH and Buyer entered into a Stock Purchase Agreement
dated August 12, 1998 (together with the Schedules and Attachments thereto, and
as amended hereby, the "Agreement"), pursuant to which, among other things,
Seller agreed: (1) to transfer to its wholly-owned subsidiary ABPH substantially
all of the operating assets, store leases, contracts and liabilities associated
with its Au Bon Pain Division pursuant to a Contribution Agreement to be entered
into in the form attached to the Agreement as Exhibit 5.06; and (2) to sell and
convey to Buyer all of Seller's capital stock of APBH, all upon and subject to
the terms and conditions of the Agreement; and
WHEREAS, Seller, ABPH and Buyer desire to amend the Agreement in
certain respects as provided in this Amendment; and
WHEREAS, unless otherwise expressly defined herein, capitalized terms
used herein shall have the respective meanings ascribed to them in the
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
of the parties contained herein, the parties agree as follows:
1. Purchase Price.
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Section 2.01 of the Agreement is amended by deleting the text therefrom
in its entirety and substituting therefor the following:
"Section 2.02 Form and Payment of Purchase Price.
Subject to adjustment as herein provided, the Purchase Price
shall be SEVENTY-THREE MILLION DOLLARS ($73,000,000). At the Closing,
Buyer shall pay to Seller the Purchase Price, as adjusted by the
estimated amounts provided pursuant to Section 2.03(c) plus any amounts
due pursuant to Section 2.05(a), by wire transfer of immediately
available funds, to the account or accounts which are designated in
writing by the Seller and delivered to Buyer at least two (2) Business
Days prior to Closing."
2. Contribution Agreement.
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(a) Section 5.06 of the Agreement is amended by deleting the text
therefrom in its entirety and substituting therefor the following:
"Section 5.06 Transfer of Assets and Assumption of Liabilities.
(a) Immediately prior to the Closing, the following
transactions shall take place in the order set forth below:
(1) Seller shall transfer and assign or sublease to ABPH (for
no additional consideration from Buyer) all of Seller's right,
title and interest in and to the assets (including
Intellectual Property), contracts, leases and agreements
including, without limitation, all development agreements and
individual franchise agreements (foreign and domestic) and
ABPH shall assume certain liabilities, in each case relating
to the Au Bon Pain Division, (but specifically excluding all
leasehold improvements, machinery and equipment, signs,
furniture and fixtures, transportation equipment and other
fixed tangible equipment) pursuant to a Non-Fixed Asset
Contribution Agreement to be entered into in the form attached
hereto as Restated Exhibit 5.06A on terms which include all
authorizations and consents which are necessary to permit the
sale of the ABPH Common Stock to Buyer; provided, however,
that Seller shall not assign or sublease to ABPH any store
lease or other contract for which it fails or is unable to
obtain a consent required under or in connection with such
lease as a condition to such assignment or sublease or to the
sale of the ABPH Common Stock to Buyer as contemplated herein.
(2) Seller shall transfer and assign (for no additional
consideration from Buyer) to a Delaware corporation to be
formed by Seller ("ABP Newco") all of Seller's right, title
and interest in and to all leasehold improvements, machinery
and equipment, signs, furniture and fixtures, transportation
equipment and other fixed tangible equipment relating to the
Au Bon Pain Division pursuant to a Fixed Asset Contribution
Agreement to be entered into in the form attached hereto as
Restated Exhibit 5.06B.
(3) ABP Newco shall merge with and into ABPH, with ABPH being
the surviving corporation, in accordance with the Delaware
General Corporation Law and the terms of an Agreement and Plan
of Merger to be executed by ABP Newco and ABPH prior to the
Closing in form and substance reasonably acceptable to each of
Buyer and Seller, such merger to become effective prior to the
Closing upon the filing of a Certificate of Merger with the
Secretary of State of Delaware.
(4) The Non-Fixed Asset Contribution Agreement and the Fixed
Asset Contribution Agreement shall be referred to herein
collectively as the "Contribution Agreement". The transactions
contemplated by the Non-Fixed Asset Contribution Agreement and
the Fixed Asset Contribution Agreement shall be referred to
herein as the "Restructuring".
(b) From the date of its formation through the Closing Date,
ABP Newco will engage in no business activity other than the
Restructuring."
(b) Section 1.01 of the Agreement is amended by inserting a new
subsection (d) at the end of such section as follows:
"(d) Any reference in the Agreement to the Contribution
Agreement shall be deemed to be a reference to both the
Non-Fixed Asset Contribution Agreement and the Fixed Asset
Property Contribution Agreement. Any reference in this
Agreement to "this Agreement" shall mean the Agreement as
amended by the Amendment dated October 28, 1998."
(c) Section 3.24 of the Agreement is amended by deleting the last
sentence therefrom and substituting therefor the following:
"At or prior to the Closing, all such owned and leased assets,
except as otherwise expressly provided in this Agreement,
shall be transferred to ABP Newco and ABPH in connection with
the Restructuring contemplated by Section 5.06 free and clear
of all Encumbrances, except to the extent otherwise disclosed
on Schedule 3.24. From the date of its formation through the
Closing Date, ABP Newco will engage in no business activity
other than the Restructuring contemplated by Section 5.06."
3. Net Worth Adjustment.
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(a) Section 2.03(f) of the Agreement is amended by deleting the text
therefrom in its entirety and substituting therefor the following:
"(f) The term "Net Worth Adjustment" shall mean the amount, if
any, by which the difference between: (1) the "Consolidated Assets" (as
hereinafter defined) minus net plant, property and equipment, minus (2)
"Consolidated Liabilities" (as hereinafter defined) of ABPH, on a
consolidated basis as of the Closing Date (after giving effect to the
Restructuring), exceeds or is less than the difference between: (1) the
Consolidated Assets minus net plant, property and equipment, minus (2)
Consolidated Liabilities of the Au Bon Pain Division, on a consolidated
basis as of April 18, 1998. If the Net Worth Adjustment is positive (up
to Three Million Dollars ($3,000,000)), it shall be added to the
Purchase Price to be paid by Buyer to Seller at the Closing pursuant to
Section 2.02. If the Net Worth Adjustment is negative, it shall be
deducted from the Purchase Price to be paid by Buyer to Seller at the
Closing pursuant to Section 2.02. As used herein the terms: (1)
"Consolidated Assets" shall mean the sum of cash, accounts receivable,
inventories, prepaid expenses and plant, property and equipment and
"Other Assets", but such term shall exclude the $431,000 note
receivable from Northern Bakers, Inc. created in connection with the
transfer of the bakery/cafe known as "Big D" from Seller to Northern
Bakers, Inc.; and (2) "Consolidated Liabilities" shall mean the sum of
accounts payable, accrued expenses and minority interests, in each case
calculated in accordance with GAAP applied consistently with the ABP
Division Financial Statements."."
4. Transition Services Agreement.
The form of Transition Services Agreement to be entered into at the
Closing in the form attached to the Agreement as Exhibit 7.06 is amended by
deleting such exhibit in its entirety and substituting therefor the form of
agreement attached hereto as Restated Exhibit 7.06.
5. Representations and Warranties.
(a) Schedule 3.10 of the Agreement is amended by adding to such
schedule Supplemental Schedule 3.10 attached hereto.
(b) Schedule 3.21 of the Agreement is amended by adding to such
schedule Supplemental Schedule 3.21 attached hereto.
6. Conditions to Obligations of Buyer.
Section 8.03(c) of the Agreement is amended by deleting therefrom the
phrase "July 11, 1998" and substituting therefor the phrase "October 3, 1998".
7. Reaffirmation and Confirmation of Agreement.
Except as otherwise set forth in this Amendment, the Agreement is
ratified and confirmed in all respects.
IN WITNESS WHEREOF, the parties hereto caused this Agreement to be duly
executed, individually or by their respective authorized officers, on the day
and year first above written.
WITNESS: BUYER:
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ABP CORPORATION
/s/ Xxxxxx X. xxx Xxxxx By /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxx X. xxx Xxxxx Name: Xxxxxxx X. Xxxxxxx
Title: President
SELLER:
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AU BON PAIN CO., INC.
/s/ Xxxxxxx X. Xxxxxxx By /s/Xxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxx
Title: Co-Chairman and
Chief Executive Officer
ABPH:
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ABP HOLDINGS, INC.
/s/ Xxxxxxx X. Xxxxxxx By /s/Xxxxx X. Xxxx
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Xxxxxxx X. Xxxxxxx Name: Xxxxx X. Xxxx
Title: President
