EXHIBIT 10.6
THIRD AMENDMENT TO STOCK PURCHASE AGREEMENT
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THIS THIRD AMENDMENT TO STOCK PURCHASE AGREEMENT ("Third Amendment"),
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dated as of November 13, 1998, between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇") and CASINO
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▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇, ▇.▇., a French societe anonyme ("Casino").
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WHEREAS, ▇▇▇▇▇▇ and Casino, together with Smart & Final Inc. (the
"Company") and Casino USA, Inc. ("Casino USA"), are parties to a certain Stock
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Purchase Agreement dated as of March 7, 1989, as amended (the "Stock Purchase
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Agreement").
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WHEREAS, the Stock Purchase Agreement was amended in the Second
Amendment thereto dated as of July 1, 1998 ("Second Amendment") to provide for
the grant to ▇▇▇▇▇▇ the extension of certain rights to require Casino to
purchase shares of common stock of the Company owned by ▇▇▇▇▇▇.
WHEREAS, ▇▇▇▇▇▇ and Casino wish to amend the Agreement to provide for
a clarification of the grant of such option to ▇▇▇▇▇▇ in light of ▇▇▇▇▇▇'
resignation as Chief Executive Officer of the Company, and the Company and
Casino USA wish to consent to such further Amendment.
NOW THEREFORE, the parties hereby agree as follows:
1. Paragraph 1(c) of the Second Amendment is amended to read in its
entirety as follows:
"(c) The Option may be exercised by ▇▇▇▇▇▇, in part, from time to
time during the period commencing on January 1, 2000 and terminating on December
31, 2002 (the "Option Period"); provided, however, that the Option may not be
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exercised (i) at any one time with respect to fewer than 50,000 or more than
200,000 Shares, (ii) within two months of any prior exercise, or (iii) with
respect to more than 400,000 Shares in the aggregate during any one calendar
year. The Option shall terminate and Casino shall have no further obligations
hereunder after the Option Period."
2. Representations and Warranties of ▇▇▇▇▇▇. ▇▇▇▇▇▇ represents and
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warrants to Casino (and its designees) that: (a) this Third Amendment has been
duly executed and delivered by ▇▇▇▇▇▇ and constitutes a valid and legally
binding obligation of ▇▇▇▇▇▇ enforceable in accordance with its terms; (b) no
authorization, consent or approval of, or any filing with, any public body or
authority is necessary for consummation by ▇▇▇▇▇▇ of the transactions
contemplated hereby; and (c) any Shares sold to Casino (or its designees) upon
exercise of the Option will be transferred free and clear of all Liens and
Casino (or its designees) will receive good title to all of such Shares, free
and clear of all Liens.
3. Representations and Warranties of Casino. Casino represents and
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warrants to ▇▇▇▇▇▇ that: (a) this Third Amendment has been duly authorized,
executed and delivered by Casino and constitutes a valid and legally binding
obligation of Casino enforceable in accordance with its terms; and (b) no
authorization, consent or approval of, or any filing with, any public
2.
body or authority is necessary for consummation by Casino of the transactions
contemplated by this Third Amendment.
4. Expenses. Each party hereto shall pay their own expenses incurred
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in connection with this Third Amendment and any exercise of the Option.
5. Entire Agreement; Amendment. This Third Amendment sets forth the
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entire understanding and agreement between the parties as to the matters covered
herein and supersedes and replaces any prior understanding, agreement or
statement of intent, in each case, written or oral, of any and every nature with
respect thereto. Except as expressly amended hereby, the Stock Purchase
Agreement (including but not limited to the matters contained in the Second
Amendment thereto) shall remain in effect in all respects in accordance with its
terms. This Third Amendment may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement
executed by ▇▇▇▇▇▇ and Casino. Except for the right of Casino to designate
purchasers of Shares, no party to this Third Amendment may assign any of their
rights or obligations under this Third Amendment without the prior written
consent of the other party hereto.
6. Counterparts. This Third Amendment may be executed in two or more
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counterparts, each of which shall be deemed to be an original, but each of which
together shall constitute one and the same document.
7. Governing Law. This Third Amendment shall be governed by and
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construed in accordance with the laws of the State of California, without regard
to principles of conflicts of laws.
8. Binding Effect. This Third Amendment shall be binding upon, inure
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to the benefit of, and be enforceable by the successors and permitted assigns of
the parties hereto. Nothing expressed or referred to in this Third Amendment is
intended or shall be construed to give any person other than the parties to this
Third Amendment, or their respective successors or permitted assigns, any legal
or equitable right, remedy or claim under or in respect of this Third Amendment
or any provision contained herein. If any term of this Third Amendment is held
to be invalid, void or unenforceable, the remainder of the terms of this Third
Amendment shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.
9. Notices. All notices and other communications hereunder shall be
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in writing and shall be given and shall be deemed to have been duly given if
delivered in person or sent by facsimile transmission (followed by overnight
courier) to the parties as follows:
If to ▇▇▇▇▇▇, to:
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: 805.565.3183
3.
If to Casino, to:
Casino ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇, ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇
▇▇▇▇▇▇
Facsimile No.: 011.33.4.77.45.39.90
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: 212.225.3999
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notices of change of
address shall only be effective upon receipt.
IN WITNESS WHEREOF, ▇▇▇▇▇▇ and Casino have duly executed this Third
Amendment to Stock Purchase Agreement as of the day and year first above
written.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
CASINO ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇, ▇.▇.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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4.
Consented to:
CASINO USA, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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SMART & FINAL INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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