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EXHIBIT 2(a)
FIRST AMENDMENT TO
STOCK PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT, made this 31st day
of March, 1998, by and among FLOWERS INDUSTRIES, INC., a Georgia corporation
(hereinafter referred to as "Purchaser"), ARTAL LUXEMBOURG S.A., a Luxembourg
corporation (hereinafter referred to as "Seller") and KEEBLER FOODS COMPANY, a
Delaware corporation (hereinafter referred to as "Keebler").
W I T N E S S E T H:
WHEREAS, Purchaser, Seller and Keebler entered into a Stock Purchase
Agreement, dated January 28, 1998 (the "Stock Purchase Agreement"); and
WHEREAS, Purchaser, Seller and Keebler desire to amend the Stock
Purchase Agreement as set forth herein.
NOW, THEREFORE, for and in consideration of the premises and the mutual
promises, agreements, representations, warranties and covenants hereinafter set
forth, and the sum of ten dollars and other good and valuable consideration, the
receipt and sufficiency of which is hereby specifically agreed to and
acknowledged, the Stock Purchase Agreement is hereby amended as follows:
1. Section 13.2 of the Stock Purchase Agreement is hereby amended by
deleting said Section in its entirety and substituting in lieu thereof a new
Section 13.2 reading as follows:
"13.2 Purchases of Keebler Stock.
13.2.1 From the Closing Date until the earlier of (i) the date on
which Seller (together with its Affiliates) beneficially owns less
than 4,586,000 shares of Keebler Stock or (ii) twenty-four (24)
months after the termination of the Lockup Period (such period, the
"Initial Stock Repurchase Consent Period"), any purchase of shares
of Keebler Stock by Purchaser or Keebler (other than purchases (A)
by Purchaser or Keebler pursuant to put rights contained in
agreements in effect on the Closing Date, (B) by Purchaser or
Keebler from Artal or Management so long as such shares of Keebler
Stock are not part of the Public Float at the time of purchase, (C)
by Keebler from Bermore of Bermore's Shares which are permitted to
be transferred by Bermore as a "Monthly Transfer" pursuant to
Section 4.2(e) of the Bermore Agreement or by Purchaser or Keebler,
as the case may be, pursuant to the tag-along and drag-along
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rights contained in Sections 4.3 and 4.4 of the Bermore
Agreement and (D) by Purchaser and Keebler which together, in
the aggregate with any prior such purchases, do not exceed (x)
fifteen percent (15%) of the Public Float in Keebler Stock
immediately after the Closing, (provided that the shares
described in clause (y) hereof shall not in any event be
included in calculating the Public Float) plus (y) the number
of shares of Keebler Stock (i) either (A) issued to Management
prior to February 3, 1998 or (B) issued to Management by the
Company subsequent to February 3, 1998 pursuant to a stock
option or any similar plan and (ii) subsequently sold by
Management in transactions resulting in such shares trading in
the public market, shall not be consummated without the prior
written consent of Seller, and Keebler and Purchaser shall not
take or permit to be taken any such action without such prior
written consent; provided, however, that the Extension Period
shall be added to the twenty-four (24) month period set forth
in (ii) above; and provided, further, that Purchaser will have
the right at any time to purchase the number of shares of
Keebler Stock required to maintain beneficial ownership of at
least fifty-one percent (51%) of Keebler Stock on a fully
diluted basis.
13.2.2. After the expiration of the Initial Stock Repurchase
Consent Period (including any Extension Period added thereto)
and until the earlier of (i) the date on which Seller
(together with its Affiliates) beneficially owns less than
4,586,000 shares of Keebler Stock or (ii) thirty-six (36)
months after the termination of the Lockup Period (the "Second
Stock Repurchase Consent Period"), any purchase of shares of
Keebler Stock by Purchaser or Keebler (other than purchases
(A) by Purchaser or Keebler pursuant to put rights contained
in agreements in effect on the Closing Date, (B) by Purchaser
or Keebler from Artal, Bermore or Management so long as such
shares of Keebler Stock are not part of the Public Float at
the time of purchase, (C) by Keebler from Bermore of Bermore's
Shares which are permitted to be transferred by Bermore as a
"Monthly Transfer" pursuant to Section 4.2(e) of the Bermore
Agreement or by Purchaser or Keebler, as the case may be,
pursuant to the tag-along and drag-along rights contained in
Sections 4.3 and 4.4 of the Bermore Agreement and (D) by
Purchaser and Keebler which together, in the aggregate with
any prior such purchases during the Second Stock Repurchase
Consent Period and purchases made during the Initial Stock
Repurchase Consent Period, do not exceed (x) fifteen percent
(15%) of the Public Float in Keebler Stock on the date
immediately preceding any such purchase, (provided that the
shares described in clause (y) hereof shall not in any event
be included in calculating the Public Float) plus (y) the
number of shares of Keebler Stock (i) either (A) issued to
Management prior to February 3, 1998 or (B) issued to
Management by the Company subsequent to February 3, 1998
pursuant to a stock option or any similar plan and (ii)
subsequently sold by Management in transactions resulting in
such shares trading in the public market, shall not be
consummated without the prior written consent of Seller, and
Keebler and Purchaser shall not take or permit to be taken any
such action without such prior written consent; provided,
however, that the Extension Period
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shall be added to the thirty-six (36) month period set forth
in (ii) above, and provided, further, that Purchaser will have
the right at any time to purchase the number of shares of
Keebler Stock required to maintain beneficial ownership of at
least fifty-one percent (51%) of Keebler Stock on a fully
diluted basis."
2. Each party hereby represents and warrants to the others
that: (a) it has all necessary power and authority (corporate or other) to enter
into this First Amendment to Stock Purchase Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby;
(b) the execution, delivery and performance of this First Amendment to Stock
Purchase Agreement and the consummation of the transactions contemplated hereby
have been duly authorized by all necessary action (corporate or other); and (c)
this First Amendment to Stock Purchase Agreement has been duly executed and
delivered by such party and assuming due authorization, execution and delivery
by the other parties hereto, constitutes a valid and legally binding obligation
of such party, enforceable against such party in accordance with its terms.
3. This First Amendment to Stock Purchase Agreement shall be
governed by and construed in accordance with the laws of the State of New York
without regard to principles thereof regarding conflict of laws, except for
matters directly within the purview of the General Corporation Law of the State
of Delaware.
4. Except to the extent expressly amended herein, all terms
and conditions of the Stock Purchase Agreement are hereby affirmed and shall
remain in full force and effect.
5. This First Amendment to Stock Purchase Agreement may be
executed in two or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, each party hereto has executed or caused
this First Amendment to Stock Purchase Agreement to be executed on its behalf,
all on the day and year first above written.
FLOWERS INDUSTRIES, INC.
"Purchaser"
By: /s/ G. Xxxxxxx Xxxxxxxx
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Name: G. Xxxxxxx Xxxxxxxx
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Title: Secretary and General Counsel
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ARTAL LUXEMBOURG S.A.
"Seller"
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: Managing Director
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KEEBLER FOODS COMPANY
"Keebler"
By: /s/ Xxxxxx X. X'Xxxxx
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Name: Xxxxxx X. X'Xxxxx
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Title: Vice President, Secretary and
General Counsel
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