EXHIBIT 2.2
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
This First Amendment to Asset Purchase Agreement
("Amendment") is made as of this 30th day of November, 1996, by
and among WEST VIRGINIA BAKERY ACQUISITION COMPANY, INC., a
Delaware corporation ("Buyer"), and XXXXXX'X BAKERY, INC., a West
Virginia corporation and EEE REALTY, INC., a West Virginia
corporation ("Sellers").
RECITALS
A. Buyer and each of Sellers have entered into an Asset
Purchase Agreement dated as of October 6, 1996 (the "Purchase
Agreement").
B. Buyer and Sellers are willing to amend the Purchase
Agreement with respect to the matters referred to herein.
NOW, THEREFORE, in consideration of the premises and of the
agreements and provisions set forth herein, and subject to the
conditions herein contained, it is mutually agreed as follows:
1. Definitions. Unless otherwise defined herein, all
capitalized terms used herein shall have the same meaning
assigned to them in the Purchase Agreement, as amended.
2. Closing. The parties acknowledge and agree that the
closing of the transactions contemplated under the Purchase
Agreement shall be effective as of the Closing Date despite the
execution at the Closing of the documents and instruments
referred to in the Purchase Agreement.
3. Amendments to the Purchase Agreement.
(a) Article I of the Purchase Agreement is hereby amended
by deleting the definition "Closing Date" in its entirety and
substituting in lieu thereof the following definition:
"`Closing Date' shall mean November 30, 1996."
(b) Article I of the Purchase Agreement is hereby amended
by deleting the definition of "Escrow Agent" in its entirety and
substituting in lieu thereof the following definition:
"`Escrow Agent' shall mean First Union National Bank of
North Carolina, a national banking association, Charlotte, North
Carolina."
(c) The first sentence of Section 3.1 is hereby deleted and
the following is substituted in lieu thereof:
"The closing (the "Closing") of the sale and purchase
of the Assets shall take place at 9:00 A.M. Eastern time on
December 4, 1996 at the offices of Jenkins, Fenstermaker,
Xxxxxxx, Xxxxx & Xxxx, 0000 Xxxx Xxxxxxxx Xxxxxxxx, Xxxxxx Xxxxxx
and Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx Xxxxxxxx 00000, but shall
be effective as of the Closing Date, provided all of the
conditions precedent set forth in Article VIII have been
satisfied or waived."
(d) Article VI is hereby deleted and the following is
substituted in lieu thereof:
"All representations, warranties, covenants and
indemnifications made by the parties in this Agreement or in any
certificate, schedule, statement, document or instrument
furnished hereunder or in connection with the negotiation,
execution and performance of this Agreement shall survive the
Closing for three (3) years following the Closing Date, except
for matters identified in Sections 9.4(A) and 9.4(D) which shall
survive the Closing for the period of the statute of limitations
applicable thereto, including the period of any waiver or
extension thereof and except for matters identified in Section
9.4(C) which shall survive the Closing for ten (10) years
following the Closing Date. Notwithstanding any investigation or
audit conducted before or after the Closing Date, or the
disclosure of any matter on a Schedule to this Agreement, or the
decision of any party to complete the Closing, each party shall
be entitled to rely upon the representations, warranties,
covenants and indemnifications set forth herein and therein."
(e) Section 7.24 is hereby deleted and the following is
substituted in lieu thereof:
"7.24 Maintenance of Assets. At all times prior to
and following the Closing, Sellers will maintain assets
sufficient to satisfy their obligations under Section 9.4 and
their covenants under Sections 2.5, 7.7, 7.8, 7.16, 7.20, 7.23,
7.25 and 7.26."
(f) The following new sections are hereby added to Article
VII:
"7.25 Americans With Disabilities Act Compliance.
Sellers agree that they will reimburse Buyer for any "ADA
Eligible Costs and Expenses" incurred by Buyer, not to exceed
Seventy-Five Thousand Dollars ($75,000), to bring the Real
Property into compliance with the Americans With Disabilities
Act. "ADA Eligible Costs and Expenses" shall mean those costs
and expenses agreed to by Xxxxxx'x Chief Engineer and the Chief
Engineer of The Earthgrains Company and which are completed
within one (1) year of the Closing. Such reimbursement shall be
made within five (5) business days of Sellers' receipt of notice
of Buyer's payment of any such ADA Eligible Cost and Expense.
Such reimbursement shall be paid
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by Sellers by wire transfer of immediately available funds to an
account specified by Buyer. Sellers acknowledge and agree that
Buyer has the right to pursue a claim for indemnification under
Section 9.1 for any ADA Eligible Costs and Expenses in excess of
Seventy-Five Thousand Dollars ($75,000), subject to the
limitation set forth in the first sentence of Section 9.5(B).
7.26 Flour Pipeline Easement. Sellers agree to use
their best efforts to obtain the subordination of the liens which
are senior to the flour pipeline easement in Huntington, West
Virginia owned by Sellers, each such subordination agreement to
be in form and substance satisfactory to Buyer."
(g) Section 8.1(Q) is hereby deleted in its entirety and
the following is substituted in lieu thereof:
"(Q) Non-Competition Agreements. The Sellers and each
of the individual shareholders of each Seller shall have entered
into a non-competition/confidentiality agreement with Buyer or an
affiliate of Buyer, in form and substance satisfactory to Buyer
acting reasonably, which agreement will provide that the Sellers
and each such shareholder shall be prohibited, for a period of
five (5) years from the Closing Date, from being employed by any
corporation, other entity, or person, or engaging in any other
capacity, in the business of the manufacture, distribution and/or
sale of fresh packaged bakery goods anywhere in the United
States."
(h) Section 9.4 is hereby deleted and the following is
substituted in lieu thereof:
"9.4 Miscellaneous Indemnifications.
(A) Failure to Satisfy Deferred Compensation Arrange-
ments. Sellers agree, jointly and severally, to indemnify the
Buyer Group and hold the Buyer Group harmless against any and all
loss, liability, damage, claim, cost and expense of any nature
whatsoever including, without limitation, reasonable attorneys'
fees, arising from or in connection with the failure of Sellers
to pay all obligations under (i) the deferred compensation and
supplemental retirement income agreements and similar agreements
set forth in Section 4.11 and (ii) any other similar arrangements
entered into by either Seller and not disclosed in Section 4.11.
(B) Failure to Satisfy Sales and Use Tax Obligations.
Sellers agree, jointly and severally, to indemnify the Buyer
Group and hold the Buyer Group harmless against any and all loss,
liability, damage, claim, cost and expense of any nature
whatsoever including, without limitation, reasonable attorneys'
fees, arising from or in connection with the
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failure of Sellers to pay all state sales and use tax
obligations, if any, which arise or accrue on or prior to the
Closing Date relating to the failure of Sellers to obtain
exemption certificates from their customers.
(C) Indemnification in the Event of Environmental
Liability at Rand and Middleport Facilities. Sellers agree,
jointly and severally, to indemnify the Buyer Group and hold the
Buyer Group harmless against any and all loss, liability, damage,
claim, cost and expense of any nature whatsoever including,
without limitation, reasonable attorneys' fees, incurred by Buyer
Group as the result of any remedial action which may be required
or deemed appropriate by Buyer with respect to any ground
contamination arising on or prior to the Closing Date relating to
the Real Property located in Rand, West Virginia and Middleport,
Ohio; provided that the indemnification obligation set forth in
this Section 9.4(C) shall not exceed One Hundred Thousand Dollars
($100,000) in the aggregate. Sellers acknowledge and agree that
Buyer has the right to pursue a claim for indemnification under
Section 9.1 for any such loss, liability, damage, claim, cost or
expense incurred by Buyer Group in excess of One Hundred Thousand
Dollars ($100,000), subject to the limitation set forth in the
first sentence of Section 9.5(B)."
(D) Failure to Provide Free and Clear Title to
Huntington Real Property. Sellers agree, jointly and severally,
to indemnify the Buyer Group and hold the Buyer Group harmless
against any and all loss, liability, damage, claim, cost and
expense of any nature whatsoever including, without limitation,
reasonable attorneys' fees, arising from or in connection with
(i) the failure of Sellers to obtain the cancellation and release
of record of Deeds of Trust recorded against the Real Property
located in Huntington, West Virginia ("Huntington Real Property")
or (ii) any proceedings brought or remedies exercised by a holder
of such a Deed of Trust against Buyer or the Huntington Real
Property.
(i) Section 9.5(C) is hereby amended by deleting the words
"and 7.24" in the fourth line and substituting in lieu thereof
the words ",7.24, 7.25 and 7.26,".
(j) Section 12.1 is hereby amended by deleting the words
"Prior to the Closing," and substituting in lieu thereof the
words "On or before December 31, 1996,".
4. Full Force and Effect; Entire Agreement. Except to the
extent expressly provided in this Amendment, the terms and
conditions of the Purchase Agreement shall remain in full force
and effect and shall be binding on the parties thereto. The
Purchase Agreement, as amended hereby, constitutes the entire
agreement among the parties hereto and no representations,
inducements,
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promises or other agreements, oral or otherwise, not embodied
herein, shall be of any force or effect.
5. Counterparts. This Amendment may be executed
simultaneously in two or more counterparts, each of which shall
be deemed an original, but all of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the date first set forth above.
"Sellers"
XXXXXX'X BAKERY, INC.
By:
Title:
EEE REALTY, INC.
By:
Title:
"Buyer"
WEST VIRGINIA BAKERY ACQUISITION
COMPANY, INC.
By:
Title:
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