FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT
This FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT (this "Amendment"),
dated as of October 6, 1997, by and among INTERNATIONAL PRODUCE HOLDING
COMPANY, a Delaware corporation (the "Company"), XXXX XXXXX E., XXXXX XXXXX G.,
J. XXXXXXXXX XXXXX G., AND XXXX XXXXX G. (each individually a "Seller" and
collectively "Sellers"), and DNAP HOLDING CORPORATION, a Delaware corporation
("Buyer").
RECITALS
The parties named above entered into a Stock Purchase Agreement, dated
as of August 12, 1997. The purpose of this Amendment is to modify certain
provisions of the Stock Purchase Agreement as set forth below. All
capitalized terms not otherwise defined in this Amendment shall have the
meanings given them in the Stock Purchase Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby,
the Company, Sellers and Buyer hereby agree as follows:
1. ALLOCATION OF PURCHASE PRICE. Reference is made to Section 1.2 of
the Stock Purchase Agreement. The parties hereby agree that the Purchase
Price shall be allocated among and paid to each Seller in accordance with the
Schedule attached to this Amendment. Upon the closing, Buyer shall execute
and deliver to Xxxx Xxxxx and Xxxxx Xxxxx negotiable notes and non-negotiable
notes in the respective amounts set forth on the Schedule.
2. RELEASE OF GUARANTY. Notwithstanding the provisions of Section 1.7
of the Stock Purchase Agreement, the parties acknowledge and agree that Buyer
shall not be required to deliver at the closing instruments executed by Bank
One, Arizona, NA (the "Bank") releasing the Sellers from personal guarantees
of the loans referred to in the Schedule of Guarantees to be Released, a copy
of which is attached to this Amendment (the "Instruments of Release"). Buyer
hereby agrees to undertake such obligations to the Bank as are necessary to
obtain and deliver to the Sellers no later than November 15, 1997, the
Instruments of Release. Buyer further agrees to indemnify, defend and hold
each Seller harmless for, from and against any damage, loss or liability,
including court costs and attorneys' fees, occasioned or suffered by each
Seller that arises out of such guarantees.
3. INDEMNITY FOR SUBLEASE OBLIGATIONS. Buyer agrees to indemnify
defend and hold Xxxx Xxxxx E. for, from and against any damage, loss or
liability, including courts costs and attorney's fees, occasioned or suffered
by Xxxx Xxxxx E. that arises out of his guaranty of the
obligations under the Sublease between Tanimura Distributing, Inc. and
Cartellus Development Corporation referred to in the attached Schedule of
Guarantees.
4. WAIVER OF CERTAIN CLOSING CONDITIONS. Sellers, the Company and
Buyer hereby waive the conditions precedent to closing that are set forth in
Section 6.6, Employment and Consulting Agreements, and in Section 7.11,
Employment and Consulting Agreements, of the Stock Purchase Agreement.
5. ASSIGNMENT OF ACCOUNT RECEIVABLE. Xxxx Xxxxx E. hereby assigns and
sets over to Buyer all of his right, title and interest in and to the account
receivable in the amount of $197,854.59 owed by Tanimura Distributing, Inc.
to Xx. Xxxxx E., free and clear of all claims, security interests and
encumbrances.
IN WITNESS HEREOF, Sellers, Buyer and the Company have executed this
Amendment as of the date set forth above.
"COMPANY"
INTERNATIONAL PRODUCE
HOLDING COMPANY
By: /s/ Xxxx Xxxxx E.
-----------------------------------
Name: Xxxx Xxxxx E.
---------------------------------
Its: President
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"BUYER"
DNAP HOLDING CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------------
Its: Executive Vice President
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"SELLERS"
/s/ Xxxx Xxxxx E.
--------------------------------------
Xxxx Xxxxx E.
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, Spouse of Xxxx Xxxxx E.
/s/ Xxxxx Xxxxx G.
--------------------------------------
Xxxxx Xxxxx G.
/s/ J. Xxxxxxxxx Xxxxx G.
--------------------------------------
J. Xxxxxxxxx Xxxxx G.
/s/ Xxxx Xxxxx G.
--------------------------------------
Xxxx Xxxxx G.
/s/ Xxxxxxxxx Xxxxxx Xxxxxxxxx
--------------------------------------
Xxxxxxxxx Xxxxxx Xxxxxxxxx, Spouse of
Xxxx Xxxxx G.
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