AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF REORGANIZATION
This AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF REORGANIZATION (this
"AMENDMENT") is made and entered into as of December 7, 1998 by and among
Xxxxxxxxx Xxxxx Corporation, an Illinois corporation ("PURCHASER"), Sweet
Factory Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary
of Purchaser ("MERGER SUB"), Sweet Factory Group, Inc., a Delaware corporation
("GROUP"), Sweet Factory, Inc., a Delaware corporation ("SFI"), SF Candy
Company, a Delaware corporation ("CANDY CO."), SF Properties, Inc., a Delaware
corporation ("SF PROPERTIES"; Group, SFI, Candy Co. and SF Properties being
collectively referred to herein as the "SELLERS"), and Weston Presidio Offshore
Capital C.V., a California limited partnership, as representative (the
"REPRESENTATIVE") of those stockholders of Group that are identified on SCHEDULE
B to the Agreement (as defined below) (the "INDEMNIFYING STOCKHOLDERS").
R E C I T A L S:
WHEREAS, Purchaser, Merger Sub, the Sellers and the Indemnifying
Stockholders are parties to that certain Agreement and Plan of Reorganization,
dated as of November 24, 1998 (the "AGREEMENT"), pursuant to which the parties
thereto have agreed, among other things, to merge Merger Sub with and into
Group; and
WHEREAS, Purchaser, Merger Sub, the Representative and Sellers have
mutually agreed to amend and restate Section 2.4(a) of the Agreement in its
entirety;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, Purchaser, Merger Sub, the Representative and
Sellers hereby agree as follows:
Section 1. AMENDMENT. Section 2.4(a) of the Agreement is hereby
amended and restated in its entirety to read as follows:
"At the Effective Time, the Certificate of Incorporation of Group, as
in effect immediately prior to the Effective Time, shall be the
Certificate of Incorporation of the Surviving Corporation, until
thereafter amended."
Section 2. NO IMPLIED AMENDMENTS. Except as specifically amended
by this Amendment, the Agreement shall remain in full force and effect in
accordance with its respective terms and is hereby ratified and confirmed.
Section 3. EFFECTIVENESS OF AMENDMENT. This Amendment shall be
deemed to be an amendment to the Agreement in accordance with Section 13.9 of
the Agreement.
Section 4. BENEFIT OF THE AGREEMENT. This Amendment shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
Section 5. HEADINGS. The headings used in this Amendment are for
convenience of reference only and shall not be deemed to limit, characterize or
in any way affect the interpretation of any provision of this Amendment.
Section 6. GOVERNING LAW. THIS AMENDMENT AND THE LEGAL RELATIONS
BETWEEN THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE CONFLICT OF LAWS RULES
THEREOF.
Section 7. COUNTERPARTS. This Amendment may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 8. REFERENCES TO AGREEMENT. On and after the date hereof,
each reference in the Agreement to "this Agreement," "hereunder," "hereof" or
words of like import referring to the Agreement shall mean the Agreement as
amended by this Amendment.
[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No.
1 to Agreement and Plan of Reorganization to be duly executed as of the date
first written above.
XXXXXXXXX XXXXX CORPORATION
By: /s/ Xxx X. Xxxxxxxx
-----------------------------------------
Name: Xxx X. Xxxxxxxx
Title: President and Chief Operating Officer
SWEET FACTORY ACQUISITION CORP.
By: /s/ Xxx X. Xxxxxxxx
-----------------------------------------
Name: Xxx X. Xxxxxxxx
Title: President and Chief Operating Officer
SWEET FACTORY GROUP, INC.
By: /s/ T. Xxxxxx Xxxx
-----------------------------------------
Name: T. Xxxxxx Xxxx
Title: C.E.O.
SWEET FACTORY, INC.
By: /s/ T. Xxxxxx Xxxx
-----------------------------------------
Name: T. Xxxxxx Xxxx
Title: C.E.O.
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SF CANDY COMPANY
By: /s/ T. Xxxxxx Xxxx
-----------------------------------------
Name: T. Xxxxxx Xxxx
Title: C.E.O.
SF PROPERTIES, INC.
By: /s/ T. Xxxxxx Xxxx
-----------------------------------------
Name: T. Xxxxxx Xxxx
Title: C.E.O.
WESTON PRESIDIO OFFSHORE CAPITALC.V.,
as Representative of the Indemnifying Stockholders
By: WESTON PRESIDIO CAPITAL
MANAGEMENT, L.P.
By: /s/ Xxxxx X. XxXxxxx
-------------------------------------
Name: Xxxxx X. XxXxxxx
Title: General Partner
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