AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
EXHIBIT
10.2
AMENDMENT
NO. 1 TO STOCK PURCHASE AGREEMENT
This
Amendment No. 1 to that certain Stock Purchase Agreement, dated as of August 25,
2008 (the “Purchase
Agreement”), by and among Crosstown Traders, Inc., Xxxx Xxxxxxxx
Outfitters, Inc., Charming Shoppes, Inc. and the other signatories thereto is
made and entered into as of September 18, 2008 (this “Amendment”).
W I T N E S S E T H:
WHEREAS, all capitalized terms
used herein and not otherwise defined shall have the respective meanings
ascribed thereto in the Purchase Agreement; and
WHEREAS, Buyer and CTI desire
to amend the Purchase Agreement in accordance with the provisions of Section 15.4 thereof
in the manner set forth herein.
NOW, THEREFORE, in
consideration of the premises and the mutual representations, warranties,
covenants and agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
Section
1 Amendments to Purchase Agreement and Disclosure
Schedules.
(a) The
preamble to the Purchase Agreement is hereby amended by replacing “a Delaware
corporation” with “an Oregon corporation” after the language “XXXX XXXXXXXX
OUTFITTERS, INC.,”.
(b) Section 2.2 of the
Purchase Agreement is hereby amended by adding the following sentence to the end
of Section 2.2:
“The Closing shall be deemed to be effective at 12:01 A.M. on the Closing
Date.”
(c) The
schedules attached to the Purchase Agreement are hereby amended by deleting
Schedule 11.1
and substituting the attached Schedule 11.1
therefor.
(d) The
schedules attached to the Purchase Agreement are hereby amended by adding Schedule 11.1A
attached hereto.
(e) The
Disclosure Schedules attached to the Purchase Agreement are hereby amended by
replacing Schedule
5.17 with the attached Schedules 11.1 and
11.1A.
(f) Section 11.1 of the
Purchase Agreement is hereby amended by substituting the following provision
therefor:
“Listed Employees;
Transferred Employees. On the Closing Date, CTI and its
Affiliates shall terminate the employment of, and Buyer shall offer employment
with Buyer or one of Buyer’s Affiliates, to each of the employees listed on
Schedule 11.1
and Schedule
11.1A hereto (each, a “Listed Employee” and
collectively, the “Listed Employees”),
at a rate of pay comparable to the rate of pay provided to the Listed Employee
immediately prior to the Closing Date and with severance entitlements that
are
comparable
to either the severance program applicable to such Transferred Employee
immediately prior to the Closing Date or the severance program applicable to
similarly situated employees of Buyer. For this purpose, “pay” shall
include base salary or wages, but exclude any equity-based or incentive
compensation. Buyer, at the time it extends such employment offers,
shall provide appropriate information regarding employment terms and conditions
to the Listed Employees, which shall conform in all respects to the provisions
of this Section
11.1. Each Listed Employee who accepts such offer of
employment shall become an employee of the Buyer or its Affiliates on the
Closing Date and is referred to as a “Transferred
Employee,” and all such employees are collectively referred to as the
“Transferred
Employees.” Buyer shall, or shall cause its Affiliates to,
continue to provide each Transferred Employee with the pay (while such
Transferred Employees remain employed by Buyer or its Affiliates) and severance
entitlements described in this Section at least until January 1,
2009. On and after January 2, 2009, the severance program applicable
to such employees shall be comparable to either the severance program applicable
to such Transferred Employee immediately prior to the Closing Date or the
severance program applicable to similarly situated employees of
Buyer.”
(g) The
schedules attached to the Purchase Agreement are hereby amended by adding Schedule 11.10
attached hereto.
(h) The
Purchase Agreement is hereby amended by adding Section 11.10 which
will read as follows:
“The
parties agree that the terms set forth on Schedule 11.10
attached hereto shall apply to the Transferred Employees listed on Schedule
11.1A.”
(i) Exhibit 9.5 of the
Purchase Agreement is hereby amended by replacing in its entirety Exhibit 9.5 to the
Purchase Agreement with Exhibit 9.5 attached
hereto.
Section
2 Miscellaneous.
(a) No Other
Amendments. Except as expressly amended or modified hereby,
the terms and conditions of the Purchase Agreement shall continue in full force
and effect.
(b) Counterparts. This
Amendment may be executed in one or more counterparts, any one of which may be
by facsimile, and all of which taken together shall constitute one and the same
instrument.
(c) Captions. The
captions used in this Amendment are for convenience of reference only and do not
constitute a part of this Amendment and shall not be deemed to limit,
characterize or in any way affect any provision of this Amendment, and all
provisions of this Amendment shall be enforced and construed as if no caption
had been used in this Amendment.
(d) Governing Law and
Jurisdiction. This Amendment is made pursuant to, and shall be
construed and enforced in accordance with, the laws of the State of New York
(and the United States federal law, to the extent applicable), irrespective of
the principal place of business,
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residence
or domicile of the parties hereto, and without giving effect to otherwise
applicable principles of conflicts of Law. Nothing contained herein
or in any Transaction Document shall prevent or delay any party hereto from
seeking, in any court of competent jurisdiction, specific performance or other
equitable remedies in the event of any breach or intended breach by another
party of any of its obligations hereunder.
* * * * *
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IN
WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date
first above written.
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BUYER:
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Xxxx
Xxxxxxxx Outfitters, Inc.
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By:____________________________________
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Name:
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Title:
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CTI:
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Crosstown
Traders, Inc.
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By:____________________________________
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Name:
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Title:
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