AMENDMENT TO BUSINESS COMBINATION AGREEMENT
AMENDMENT
TO BUSINESS COMBINATION AGREEMENT
This
Amendment (this “Amendment”), dated as of
February 18, 2011, is made and entered into by and among 00xx Xxxxxx
General Acquisition Corp., a Delaware corporation (“Parent”), 57th Street
Merger Sub LLC, a Delaware limited liability company (“Merger Sub”), Crumbs Holdings
LLC, a Delaware limited liability company (the “Company”), the
Members and the Member Representatives. Capitalized terms
used and not defined herein shall have the meanings ascribed thereto in the
Business Combination Agreement (as defined below).
WHEREAS,
Parent, Merger Sub, the Company, the Members and the Member Representatives are
parties to that certain Business Combination Agreement, dated as of January 9,
2011 (the “Business Combination
Agreement”);
WHEREAS,
Section 7.5 of the Business Combination Agreement provides that the Business
Combination Agreement may only be amended pursuant to a written agreement signed
by each of the Parties thereto; and
WHEREAS,
the Parties desire to amend the Business Combination Agreement as set forth in
this Amendment.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained
herein and in the Business Combination Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:
A. Amendments to the Business
Combination Agreement. The Business Combination Agreement is
hereby amended as follows:
1. Section
1.4(a) Contingency Consideration; Contingency Consideration to the
Members. The second sentence of the last paragraph of Section
1.4(a) of the Business Combination Agreement is hereby amended and restated as
set forth below:
“For
purposes of this Section 1.4, “Adjusted EBITDA” shall mean
consolidated net earnings of Parent, including net earnings attributable to any
non-controlling interest, determined in accordance with Signing GAAP (as
hereafter defined) before interest income or expense, income taxes and any gains
or losses resulting from the change in estimate relating to the Tax Receivable
Agreement, depreciation, amortization, losses or gains resulting from
adjustments to the fair value of the contingent consideration, stock-based
compensation expense, the non-cash effect on rent expense as a result of
straight-lining rent, extraordinary or non-recurring expenses (including the
Expenses) and all other extraordinary non-cash items for the applicable period
and as applied on a consistent basis.”
2. Section
1.4(e) Contingency Consideration; Escrow. The first
sentence of Section 1.4(e) of the Business Combination Agreement is hereby
amended and restated as set forth below:
“At
Closing, Parent, the Company, the Member Representatives and Continental Stock
Transfer & Trust Company (the “Escrow Agent”) shall enter
into an Escrow Agreement, in the form and substance reasonably satisfactory to
the Parties (the “Escrow
Agreement”) and the Company and Parent shall deposit with the Escrow
Agent pursuant to the terms of the Escrow Agreement [A] certificates for Four
Million Four Hundred Thousand (4,400,000) New Crumbs Class B Exchangeable Units
and Four Hundred and Forty Thousand (440,000) shares of Parent Series A Voting
Preferred Stock representing the aggregate Contingency Consideration payable to
the Members pursuant to this Section 1.4, and [B] certificates for the Claim
Shares (as defined below).’
3. Section 3.7(b) SEC Filings and
Parent Financial Statements. Section 3.7(b) of the Business
Combination Agreement is hereby amended and restated as set forth
below:
“The
financial statements and notes contained or incorporated by reference in the
Parent SEC Reports or to be incorporated by reference in the Additional Parent
SEC Reports (“Parent
Financials”) fairly present, or will fairly present at the time of
filing, as the case may be, the financial condition and the results of
operations, changes in stockholders’ equity, and cash flow of Parent and the
Parent Subsidiaries as at the respective dates of and for the periods referred
to in such financial statements, all in accordance with (i) GAAP and
(ii) Regulation S-X or Regulation S-K, as applicable, subject, in the case
of interim financial statements, to normal recurring year-end adjustments (the
effect of which will not, individually or in the aggregate, be materially
adverse) and the omission of notes to the extent permitted by Regulation S-X or
Regulation S-K, as applicable. No financial statements other than
those of Parent and the Parent Subsidiaries are required by GAAP to be included
in the consolidated financial statements of Parent. Section 3.7 of the
Parent Disclosure Schedule contains a description of all non-audit
services performed by Parent’s auditors for Parent and the Parent Subsidiaries
since the date of Parent’s formation and the fees paid for such
services. Parent has no off-balance sheet arrangements.”
4. Section 3.8 Absence of Undisclosed
Liabilities. Section 3.8 of the Business Combination Agreement
is hereby amended and restated as set forth below:
“Except
as and to the extent reflected or reserved against in the Parent Financials and/
or set forth in the Parent Disclosure Schedule and/ or Parent SEC Reports
(excluding any risk factor disclosures and any disclosure included in any
“forward looking statements” disclaimer, forward looking statements or other
statements that are predictive, forward looking, non-specific or primarily
cautionary in nature), neither the Parent nor any Parent Subsidiary has incurred
any liabilities or obligations of any kind, other than liabilities that have
been incurred in the ordinary course of business (taking into account Parent is
a special purpose acquisition company and the Expenses of Parent).”
5. Section 3.11(a) Taxes and
Returns. Section 3.11(a) of the Business Combination Agreement
is hereby amended and restated as set forth below:
“Except
as set forth in Section 3.11(a) of the
Parent Disclosure Schedule, Parent has or will have timely filed, or
caused to be timely filed, all material federal, state, local and foreign Tax
Returns and reports required to be filed by it (taking into account all
available extensions), which Tax Returns are true, accurate, correct and
complete in all material respects, and has paid, collected or withheld, or
caused to be paid, collected or withheld, all material Taxes required to be
paid, collected or withheld, other than such Taxes for which adequate reserves
in the Parent Financials have been established.”
6. Section 4.1(c) Conduct of
Business of the Company and of Parent and Parent
Subsidiaries. Section 4.1(c) of the Business Combination
Agreement is hereby deleted in its entirety and replaced with “Intentionally
Omitted.”
7. Section 4.3(f) No
Solicitation. Section 4.3(f) of the Business Combination is
hereby amended and restated as set forth below:
“Notwithstanding
anything to the contrary contained in this Agreement, for the purposes of this
Section 4.3, the “Executory Period” applicable to the Company and the Company
Subsidiaries obligations hereunder shall expire on the earlier of (i) April 15,
2011 or (ii) the Effective Time.”
8. Section 5.1(b) Notification of
Certain Matters. The last sentence of Section 5.1(b) of the
Business Combination Agreement is hereby amended and restated as set forth
below:
“In the
event Parent and Merger Sub accept (or are deemed to have accepted) the new
disclosure information made by the Company and the Members to the Company
Disclosure Schedules prior to the Closing Date, such new disclosure information
shall be deemed part of the Company Disclosure Schedules and the Company and the
Members shall have no liability with respect to otherwise indemnifiable Damages
relating thereto except as set forth in Section
5.22.”
9. Section 5.3(b)(i) Survival of Representations and
Warranties; Indemnification; Indemnification by the
Members. The last sentence of Section 5.3(b)(i) of the
Business Combination Agreement is hereby amended and restated as set forth
below:
“The
indemnification provided pursuant to this Section 5.3(b)(i)
shall not include any matter for which indemnification is provided pursuant to
Section
5.3(b)(ii) or Section
5.22.”
10. Section 5.3(f) Survival of Representations and
Warranties; Indemnification; Limitation. The second sentence
of Section 5.3(f)of the Business Combination Agreement is hereby amended and
restated as set forth below:
“The
rights of the Parties for indemnification relating to this Agreement or the
transactions contemplated hereby shall be strictly limited to those contained in
this Section 5.3 and/
or Section 5.22
and, except as specifically set forth in Section 9.10 and
Section 7.3,
such indemnification rights shall be the sole and exclusive remedies of the
Parties with respect to any matter arising under or in connection with this
Agreement.”
11. A
new Section 5.22 is hereby added to the Business Combination Agreement as set
forth as follows:
“5.22 Separate
Indemnification. From and after the Closing, Crumbs Inc. shall
indemnify and hold harmless each Parent Indemnified Party from and against any
Damages that each Parent Indemnified Party may sustain, suffer or incur and that
result from, arise out of or relate to the matter set forth in Item 3 on Section 2.12(a)(i) of the
Company Disclosure Schedule, as amended, including without limitation any
Damages sustained, suffered or incurred due to the breach by the Company of its
representations and warranties related to such matter. Crumbs
Inc. hereby acknowledges and agrees that its indemnification
obligations under this Section 5.22 shall be
separate from and in addition to its indemnification obligations under Section 5.3 and
Crumbs Inc. hereby agrees that the conditions and limitations under Sections 1.6(b),
5.3(a), 5.3(d)(ii) and 5.3(d)(iv) shall not
apply to Crumbs Inc.’s indemnification obligations under this Section
5.22.”
12. Section 5.6(a) Tender Offer; Warrant
Tender Offer – Tender Offer. The fifth sentence of Section
5.6(a) of the Business Combination Agreement is hereby amended and restated as
set forth below:
“Parent
may not waive the Maximum Tender Condition or the other conditions set forth in
Annex A (except
for conditions to be satisfied by the Company and/ or Members) or any conditions
set forth in the Offer Documents without the consent of the Company and the
Members and, unless agreed to by the Parties or required by the SEC, no material
change may be made to the Tender Offer which imposes conditions to the Tender
Offer in addition to those set forth in Annex A hereto or is
inconsistent with this Section 5.6 except as
required to comply with any rule, regulation or interpretation of the SEC, or
the staff thereof, applicable to the Tender Offer.”
The
eighth sentence of Section 5.6(a) of the Business Combination Agreement is
hereby amended and restated as set forth below:
“Notwithstanding
the foregoing, Parent may, without the consent of the Company and the Members,
(i) extend the Offer for one or more period(s) beyond the scheduled expiration
date, which initially shall be no earlier than twenty (20) Business Days
following the commencement of the Tender Offer (the “Initial Expiration Date”), if,
at any scheduled expiration of the Tender Offer, the Maximum Tender Condition
and/ or the conditions set forth in Annex A or in Offer
Documents have not been satisfied or waived, or (ii) extend or amend the Tender
Offer for any period (the Initial Expiration Date as extended, the “Expiration Time”) required by
any rule, regulation or interpretation of the SEC, or the staff thereof,
applicable to the Tender Offer.”
13. Section 5.6(b) Tender Offer; Warrant
Tender Offer – Warrant Tender Offer. The fifth sentence of
Section 5.6(b) of the Business Combination Agreement is hereby amended and
restated as set forth below:
“Parent
may not waive the conditions set forth in Annex A (except for
conditions to be satisfied by the Company and/ or Members) or any conditions set
forth in the Offer Documents and no change may be made to the Warrant Tender
Offer which increases the price being offered per warrant or imposes conditions
to the Warrant Tender Offer in addition to those set forth in Annex A hereto or is
inconsistent with this Section 5.6 without
the consent of Company and the Members except as required to comply with any
rule, regulation or interpretation of the SEC, or the staff thereof, applicable
to the Warrant Tender Offer.”
The
seventh sentence of Section 5.6(b) of the Business Combination Agreement is
hereby amended and restated as set forth below:
“Notwithstanding
the foregoing, Parent may, without the consent of the Company and the Members,
(i) extend the Warrant Tender Offer for one or more periods beyond the scheduled
expiration date, which initially shall be twenty (20) Business Days following
the commencement of the Warrant Tender Offer (the “Initial Warrant Expiration
Date”) if, at any scheduled expiration of the Warrant Tender Offer, any
of the conditions set forth in Annex A or in the
Offer Documents, have not been satisfied or waived, or (ii) extend the Warrant
Tender Offer for any period (the Initial Warrant Expiration Date as extended,
the “Warrant Expiration
Time”) required by any rule, regulation or interpretation of the SEC, or
the staff thereof, applicable to the Warrant Tender Offer.”
14. Section 5.15 Letter of
Credit Collateral. The first sentence of Section 5.15 of the
Business Combination Agreement is hereby amended and restated as set forth
below:
“The
Company and EHL Holdings LLC shall use their respective commercially reasonable
efforts to negotiate with Southeastern Bank in order to amend (i) the Promissory
Note among Southeastern Bank, Magnolia Bluff, Inc. (“Magnolia”) and the Company
(the “Promissory Note”)
and (ii) the Loan Agreement dated as of October 25, 2010 between Southeastern
Bank, the Company and Magnolia (the “Loan Agreement”) to (x) remove
Magnolia as a borrower thereunder, (y) arrange for the substitution of cash
collateral, a certificate of deposit or similar instrument of the Company not to
exceed $575,000 as a replacement for the property pledged by Magnolia thereunder
and (z) obtain the unconditional release of Xxxxx Xxxxx from all obligations and
liabilities arising out of or related to the Guaranty made by Xxxxx Xxxxx in
favor of Southeastern Bank.”
15. Section 7.4 Maximum
Recovery. The last sentence in Section 7.4 of the Business
Combination Agreement is hereby amended and restated as set forth
below:
“Except
as set forth in Section 5.22, Parent
and the Parent Indemnified Parties shall not have, other than the Maximum
Recovery Amount, any rights or claims against any of the Related Parties under
this Agreement or otherwise, whether at law or equity, in contract, in tort or
otherwise, and none of the Related Parties shall have any further liability or
obligation relating to or arising out of this Agreement or the transactions
contemplated by this Agreement.”
16. Section 9.11 Third
Parties. Section 9.11 of the Business Combination is hereby
amended and restated as set forth below:
“Except
for the rights of the Indemnitees pursuant to Sections 5.3, 5.15 and 5.22, nothing
contained in this Agreement or in any instrument or document executed by any
party in connection with the transactions contemplated hereby shall create any
rights in, or be deemed to have been executed for the benefit of, any Person
that is not a Party hereto or thereto or a successor or permitted assign of such
a Party.”
17. Company Disclosure
Schedules. Certain of the Company Disclosure Schedules to the
Business Combination Agreement are amended to reflect the Disclosure Schedule
Supplement set forth in Exhibit A attached
hereto.
18. Parent Disclosure
Schedules. The Parent Disclosure Schedules to the Business
Combination Agreement are hereby amended and restated in their entirety as set
forth in Exhibit
B attached hereto.
B. Miscellaneous. This
Amendment, the Business Combination Agreement (including the documents or
instruments referred to herein, including any exhibits attached thereto and the
Disclosure Schedules referred to therein, which exhibits and Disclosure
Schedules are incorporated therein by reference) and the Confidentiality
Agreement embody the entire agreement and understanding of the Parties hereto in
respect of the subject matter hereof and thereof and supersede all prior
agreements and understanding, oral or written, with respect to such subject
matters. Except as specifically amended hereby, the Business
Combination Agreement, as amended hereby, shall remain in full force and
effect. The terms and provisions of Article IX of the Business
Combination Agreement are incorporated herein by reference as if set forth
herein in their entirety and shall apply mutatis mutandis to this
Amendment.
[SIGNATURE PAGES
FOLLOW]
IN
WITNESS WHEREOF, the Parties have executed or caused this Amendment to be
executed as of the date first written above.
| 57TH STREET GENERAL ACQUISITION CORP. | |||
|
|
By:
|
/s/ Xxxx Xxxxx | |
| Name: Xxxx Xxxxx | |||
| Title: Chief Executive Officer | |||
|
57TH
STREET MERGER SUB LLC
|
|||
|
|
By:
|
/s/ Xxxx Xxxxx | |
| Name: Xxxx Xxxxx | |||
| Title: Manager | |||
|
CRUMBS
HOLDINGS LLC
|
|||
|
|
By:
|
/s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | |||
| Title: Chief Executive Officer | |||
|
MEMBERS:
|
|||
|
|
|
/s/ Xxxxx Xxxxx | |
| Xxxxx Xxxxx | |||
| /s/ Xxx Xxxxx | |||
| Xxx Xxxxx | |||
| /s/ Xxxxxx Xxxxx | |||
| Xxxxxx Xxxxx | |||
|
CRUMBS,
INC.
|
|||
|
|
By:
|
/s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | |||
| Title: President | |||
|
EHL
HOLDINGS LLC
|
|||
|
|
By:
|
/s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | |||
| Title: Chairman | |||
| /s/ Xxxx X. Ireland | |||
| Xxxx X. Ireland | |||
|
MEMBER
REPRESENTATIVES:
|
|||
|
|
/s/ Xxxxx Xxxxx | ||
| Xxxxx Xxxxx | |||
| /s/ Xxxxx Xxxxx | |||
|
Xxxxx
Xxxxx
|
|||
