EXHIBIT 2.5
FORM OF FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER,
dated as of June 19, 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(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, (ii) any indebtedness in the aggregate
for borrowed money of the Company (net of cash and cash equivalents) as
of the Closing Date and (iii) 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 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.
2. Except as expressly set forth herein, the terms and provisions of
the Agreement are hereby ratified and confirmed.
3. 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.
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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 ____________________
Name:
Title:
THE HAIN FOOD GROUP, INC.
By ____________________
Name:
Title:
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