Exhibit 2.5
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as of June 25,
1998 (this "Amendment"), is by and among Garden of Eatin', Inc., a California
corporation (the "Company"), and The Hain Food Group, a Delaware corporation
("Hain").
WHEREAS, the parties hereto have entered into that certain Agreement and
Plan of Merger, dated as of April 24, 1998 (as amended hereby, the "Agreement")
(capitalized terms used but not defined herein shall have the respective
meanings ascribed to such terms in the Agreement);
WHEREAS, pursuant to the terms of the Stock Purchase Agreement dated
December 23, 1997 and the letter agreement dated April 21, 1998, in each case
between TSG2 L.P. and Xx. Xx X. Xxxxxxxx (together, the "Prior Acquisition
Agreements"), Xx. Xxxxxxxx is entitled to receive, on or before December 23,
1999, an aggregate of $2 million in cash consideration for 4,000 shares of
Company Common Stock owned by Xx. Xxxxxxxx on the date hereof;
WHEREAS, the parties desire to amend certain provisions of the Agreement in
order to reflect the terms of the Prior Acquisition Agreements, copies of both
of which documents have been furnished by the Company to Hain; and
WHEREAS, the boards of directors of the Company and Hain have approved and
deemed it advisable and in the best interests of their respective shareholders
to consummate the transactions on the terms set forth in the Agreement, as
amended hereby;
NOW THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
1. Section 3.1(a) of the Agreement is hereby amended so that the last
sentence of Section 3.1(a) reads in its entirety as follows:
"CLOSING DATE MARKET PRICE" means, with respect to each share of Hain
Common Stock, the average closing price for such share as reported on the
National Market System of The Nasdaq Stock Market, Inc. for the 10 most
recent trading days ending on June 24, 1998.
2. Section 3.1(b) of the Agreement is hereby amended to read in its
entirety as follows:
(b) ADJUSTMENT TO CASH MERGER CONSIDERATION. The aggregate amount of
Cash Merger Consideration shall be reduced immediately prior to the
Effective Time by an amount equal to the sum of (i) the amount of fees,
costs and expenses incurred or reasonably estimated to be incurred by the
Company or incurred (but not paid) by the shareholders of
the Company existing immediately prior to the Effective Time to the extent
that the Company and/or the shareholders of the Company are liable therefor
pursuant to Section 8.11 hereof and (ii) the amount of the Xxxxxxxx Payment
(as defined below); PROVIDED, HOWEVER, that any reduction in Cash Merger
Consideration shall not result in any adjustment to the amount of Stock
Merger Consideration for purposes of this Article III. The aggregate
amount of Cash Merger Consideration shall be increased by the amount, if
any, that the Company's cash and cash equivalents exceed indebtedness for
borrowed money as of the Closing Date. At the Effective Time, Hain shall
pay $2,000,000 cash (the "Xxxxxxxx Payment") directly to Xx. Xx X. Xxxxxxxx
in full satisfaction of the obligations set forth in the Prior Acquisition
Agreements (as defined below) with respect to the 4,000 shares of Company
Common Stock (the "Specified Xxxxxxxx Shares") required to be purchased
from Xx. Xxxxxxxx under the Prior Acquisition Agreements for an aggregate
cash consideration of $2,000,000. Such payment shall be deemed to be made
(i) in accordance with the terms of the Prior Acquisition Documents and
(ii) in full satisfaction of Xx. Xxxxxxxx'x right to receive aggregate
consideration of $2,000,000 in return for 20% of the Company's outstanding
shares prior to December 23, 1999. Upon the payment of the Xxxxxxxx
Payment, at the Effective Time, for all purposes of this Agreement, TSG2
(or its successors and assigns) shall be treated as the record owner of the
Specified Xxxxxxxx Shares. The term "Prior Acquisition Agreements" shall
mean the Stock Purchase Agreement dated December 23, 1997 and the letter
agreement dated April 21, 1998, in each case between TSG2 L.P. and Xx. Xx
X. Xxxxxxxx, copies of both of which documents have been furnished by the
Company to Hain. Notwithstanding any provision in this Agreement to the
contrary, for purposes of the second sentence of this Section 3.1(b), the
amount of cash and cash equivalents in excess of indebtedness for borrowed
money as of the Closing Date shall be deemed to be $100,000.
3. Hain hereby agrees to use its best efforts to maintain the continuous
effectiveness of a registration statement covering the sale of the Reoffer
Shares (as defined below) under the Securities Act of 1933, as amended (the
"Securities Act"), for a period beginning at the Effective Time and ending on
the earlier to occur of (i) the first anniversary of the Effective Time and (ii)
the date on which all of the Reoffer Shares (as defined below) have been sold by
the Selling Stockholders (as defined below). Such registration statement shall
contain a reoffer prospectus pursuant to which the Reoffer Shares may be sold
without exemption or additional action under the Securities Act; PROVIDED,
HOWEVER, that nothing in this paragraph shall prevent Hain from substituting
another reoffer prospectus for the current reoffer prospectus covering all of
the Reoffer Shares. The term "Reoffer Shares" shall mean the shares of Hain
Common Stock to be received in the Merger and/or the AMI Merger by the parties
to the Voting Agreement and/or the voting agreement delivered pursuant to the
AMI Merger Agreement, together with their respective successors and assigns
(collectively, "Selling Stockholders"). The Selling Stockholders, their
respective successors and assigns are intended third party beneficiaries of the
agreement in this paragraph and the agreement in this paragraph may be enforced
by such persons.
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4. Each of the parties hereto agrees to use commercially reasonable
efforts to cause the Closing to occur on July 1, 1998. If the Closing shall not
have occurred by 5:00 p.m. (New York time) on July 6, 1998, (a) paragraph 1 of
this Amendment shall be null and void, (b) Section 3.1(b) (as amended hereby) of
the Agreement shall be deemed further amended so that the last sentence thereof
is deleted and (c) the first sentence of Section 3.1(b) (as amended hereby) of
the Agreement shall be further amended by inserting the following language
immediately prior to the proviso:
and (iii) any indebtedness in the aggregate for borrowed money of
the Company (net of cash and cash equivalents) as of the Closing
Date
5. Except as expressly set forth herein, the terms and provisions of the
Agreement are hereby ratified and confirmed.
6. This Amendment may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which shall constitute one
and the same Agreement.
IN WITNESS WHEREOF, the Company and Hain have caused this Amendment to be
signed by their respective officers thereunto duly authorized as of the date
first above written.
GARDEN OF EATIN', INC.
By: /s/ XXXXXXX X. XXXXXXXX
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Xxxxxxx X. Xxxxxxxx
President
THE HAIN FOOD GROUP, INC.
By: /s/ XXXXX X. XXXXX
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Xxxxx X. Xxxxx
President and Chief Executive Officer
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