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EXHIBIT 10.4
AMENDMENT NO. 1 TO
STOCK PURCHASE AGREEMENT
Reference is made to that certain Stock Purchase Agreement, dated as of
February 11, 2000 (the "Agreement"), by and among Odwalla, Inc., a California
corporation (the "Company"), and U.S. Equity Partners, L.P., a Delaware limited
partnership, and Xxxxxxxxx-Xxxxx Partners, L.P., a Delaware limited partnership
(each, an "Investor" and collectively, the "Investors").
RECITAL
A. Pursuant to the terms and conditions of the Agreement, the
Company has agreed to issue to the Investors, and the Investors
have collectively agreed to purchase from the Company, nine
hundred sixty thousand seven hundred sixty nine (960,769) shares
of the Common Stock of the Company.
B. Pursuant to Section 9.8 of the Agreement, the Agreement may only
be amended with the consent of the Company and the Investors,
and it is the intent of the Company and the Investors to amend
the Agreement as set forth in this Amendment No. 1.
AGREEMENT
The Company and the Investors, intending to be legally bound, hereby
amend the Agreement as follows:
1. SECTION 2.2 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE INVESTORS.
Section 2.2(g) of the Agreement shall be amended and restated in
its entirety to read as follows:
all of the material terms and conditions contained in the Merger
Agreement as of the date of this Agreement shall have been
complied with or satisfied, as the case may be, by the applicable
party thereto; except, with the consent of each Investor, as the
case may be (such consent not to be unreasonably withheld), to
the extent (i) any change in the material terms and conditions
contained in the Merger Agreement as of the date of this
Agreement benefit the Company, or (ii) the waiver or
non-satisfaction of a condition contained in the Merger Agreement
is for the benefit of the Company.
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2. SECTION 9.2 FEES AND EXPENSES.
Section 9.2 of the Agreement shall be amended and restated in its
entirety to read as follows:
The Company shall bear and pay the reasonable costs and expenses
with respect to the negotiation, execution and delivery of this
Agreement and in connection with the Transactions.
3. SECTION 9.9 NOTICES.
Section 9.9 of the Agreement shall be amended to include the
following:
if to BancBoston Investments, Inc.:
BancBoston Investments Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. XxXxxxx
Telecopier: (000) 000-0000
with a copy to:
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Telecopier: (000) 000-0000
[The remainder of this page intentionally left blank]
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4. SCHEDULE 1 SCHEDULE OF INVESTORS
Schedule 1 shall be amended and restated in its entirety to read as
follows:
INVESTOR NUMBER OF SHARES OF STOCK PURCHASE PRICE
U.S. Equity Partners, L.P. 601,667 $3,757,410
U.S. Equity Partners 162,945 $1,017,590
(Offshore), L.P.
Xxxxxxxxx Xxxxx Partners, 160,128 $1,000,000
L.P.
BancBoston Investments, Inc. 36,029 $225,000
TOTAL: 960,769 $6,000,000
5. GENERAL.
By executing this Amendment No. 1, each of U.S. Equity Partners
(Offshore), L.P., a Cayman Islands limited partnership, and BancBoston
Investments, Inc., a Massachusetts corporation, agree to become a party to and
be bound by the terms of the Agreement, as amended by this Amendment No. 1.
The terms of this Amendment No. 1 shall prevail over any conflicting
provisions of the Agreement, but both instruments shall otherwise be constituted
and interpreted as a single integrated agreement. The Agreement remains in full
force and effect, in accordance with its terms as amended hereby.
This Amendment No. 1 may be executed in any number of counterparts, each
of which shall be an original, but all of which together shall constitute one
instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this
AMENDMENT NO. 1 as of April 25, 2000.
COMPANY: ODWALLA, INC.,
a California corporation
By:___________________________________
Name: D. Xxxxxxx X. Xxxxxxxxxx
Title: Chief Executive Officer
INVESTOR: U.S. EQUITY PARTNERS, L.P.,
a Delaware limited partnership
By:___________________________________
Name: Xxxxx X. Xxxxx
Title: Managing Director
INVESTOR: U.S. EQUITY PARTNERS (OFFSHORE), L.P.,
a Cayman Islands limited partnership
By:___________________________________
Name:
Title:
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INVESTOR: XXXXXXXXX-XXXXX PARTNERS III, L.P.,
a Delaware limited partnership
By:___________________________________
Name: Xxxxx Xxxxx
Title: Authorized Person
INVESTOR BANCBOSTON INVESTMENTS, INC.,
a Massachusetts corporation
By:___________________________________
Name:
Title:
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