AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
AMENDMENT NO. 1, DATED AS OF JULY 30, 1997 (THE "AMENDMENT") TO STOCK
PURCHASE AGREEMENT, dated as of June 20, 1997 (the "Agreement") by and among
Suiza Foods Corporation, a Delaware corporation (the "Buyer"), Garelick
Farms, Inc., a Massachusetts corporation ("Garelick"), Fairdale Farms, Inc.,
a Vermont corporation ("Fairdale"), Grant's Dairy, Inc., a Maine corporation
("Grant's"), Miscoe Springs, Inc., a Massachusetts corporation ("Miscoe," and
together with Fairdale, Garelick and Grant's, the "Fluids Companies"),
Plastics Management Group, LLC, a Massachusetts Limited Liability Company,
Marlborough Plastics, Inc., a Massachusetts corporation, Maine Plastics,
Inc., a Maine corporation, First Capital Plastics, Inc., a Pennsylvania
corporation, Sherman Plastics, Inc. a Texas corporation, New Jersey Plastics
Inc., a New Jersey corporation, Illinois Plastics, Inc., an Illinois
corporation, Allentown Plastics Inc., a Pennsylvania corporation, Kentwood
Plastics, Inc., a Louisiana corporation, Franklin Plastics, Inc., a
Massachusetts corporation, Richmond Container, Inc., a Virginia corporation,
North Carolina Plastics, Inc., a North Carolina corporation, Florida
Plastics, Inc., a Florida corporation, Chester County Container Corporation,
a Pennsylvania corporation, Atlanta Container, Inc., a Georgia corporation,
Ohio State Plastics, Inc., an Ohio corporation and Middlesex Plastics, Inc.,
a Connecticut corporation (collectively, the "Plastics Companies" and
together with the Fluids Companies, the "Companies") and the parties whose
names are set forth on EXHIBIT A attached hereto (the "Sellers").
WHEREAS, the parties hereto desire to modify certain terms and conditions
of the Agreement as specifically set forth in this Amendment;
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
A. AMENDMENTS TO THE AGREEMENT.
1. The second "WHEREAS" clause in the preamble of the Agreement is
hereby amended by deleting the same in its entirety and inserting in lieu
thereof the following:
"WHEREAS, the Sellers desire to sell to the Buyer, and
the Buyer desires to purchase from the Sellers, all of
the issued and outstanding Common Stock and limited
liability company interests of each of the Companies
other than Miscoe, and pursuant to the Agreement and
Plan of Merger referred to herein, the Buyer will
acquire all of the issued and outstanding Common Stock
of Miscoe;"
2. Section 1.02(a) of the Agreement is hereby amended (i) by deleting
the following:
"set forth on EXHIBIT A hereto, constituting all of the issued and
outstanding Common Stock and limited liability company interests of
the Companies"
and inserting in lieu thereof the following:
"set forth on EXHIBIT A hereto (other than the shares of Miscoe set
forth on EXHIBIT A hereto), constituting all of the issued and
outstanding Common Stock and limited liability company interests of
the Companies (other than Miscoe)"
and (ii) by deleting "446,100" and inserting in lieu thereof
"148,700".
3. Section 1.02(d) of the Agreement is hereby amended by adding after
the first sentence thereof the following sentence:
"The March 31, 1997 balance sheet shall exclude from current assets an
aggregate of $1,193,160 of loans made to shareholders of the Companies
or their affiliates".
4. Section 1.02(g) of the Agreement is hereby amended by inserting
after the semicolon that precedes "Estimated Expansion Capex" therein the
following:
", plus actual out-of-pocket expenses incurred by the Sellers and
their affiliates in connection with the purchase of such real
property, the transfer of such real property to its current owner, and
the transfer of such property by its current owner to Fairdale, which
expenses shall not exceed $30,000 in the aggregate".
5. Section 1.03 of the Agreement is hereby amended by deleting
therefrom the following:
", (ii) deliver 297,400 shares Buyer Common Stock having the benefit
of the provisions of the Buyer Equityholders Agreement (as hereinafter
defined) as unrestricted shares thereunder and (iii)"
and inserting in lieu thereof "and (ii))".
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6. The following shall be added as a new Article IA to the Agreement:
"ARTICLE IA
MISCOE AGREEMENT AND PLAN OF MERGER
Miscoe, the Buyer and Miscoe Springs Acquisition Corp., a newly formed
subsidiary of the Buyer, have entered into an Agreement and Plan of
Merger, dated as of July 31, 1997 (the "Miscoe Merger Agreement"),
pursuant to which a wholly-owned subsidiary of the Buyer shall be
merged with and into Miscoe, with Miscoe the surviving entity in such
merger. In connection with such merger, the outstanding Shares of
Miscoe shall be converted into 297,400 shares of the Buyer Common
Stock and Miscoe shall become a wholly-owned subsidiary of the Buyer.
The representations, warranties and covenants of the parties to this
Agreement have been made in contemplation of the Miscoe Merger
Agreement and the transactions contemplated thereby."
7. Section 2.01 of the Agreement is hereby amended by deleting the
fourth sentence thereof in its entirety and inserting in lieu thereof the
following:
"Upon the sale of the Shares of the Companies (other than Miscoe) to
the Buyer at Closing pursuant to this Agreement, the Sellers will
transfer to the Buyer the entire legal and beneficial interest in all
such Shares, free and clear of any Encumbrances by or through the
Sellers."
8. Section 3.08(a)(ix) of the Agreement is hereby amended by deleting
therefrom the following:
"; and"
and inserting in lieu thereof the following:
", other than agreements entered into in the ordinary course of
business; and"
9. Section 6.01 of the Agreement is hereby amended by adding as a new
subparagraph (g), and Section 6.02 of the Agreement is hereby amended by
adding as a new subparagraph (m), the following:
"The merger contemplated by the Miscoe Merger Agreement shall have
become effective simultaneously with the Closing hereunder."
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10. The Agreement is hereby amended by deleting EXHIBIT A thereto in its
entirety and inserting in lieu thereof the EXHIBIT A attached hereto.
11. Section 2.01 of the Disclosure Schedule is hereby amended by
deleting therefrom "none" and inserting in lieu thereof "The Miscoe Merger
Agreement".
12. Section 3.08 of the Disclosure Schedule is hereby amended by
inserting after Item VIII.9. the following:
"Pursuant to Garelick's redemption of shares of capital stock from
Ronnie Bernon, Garelick is obligated to pay to Ms. Bernon following
the Closing of the transactions contemplated hereby a contingent
redemption price of $900,000 (which shall reduce Adjusted Working
Capital for purposes of determining the purchase price pursuant to
Article I of the Agreement)."
13. The Agreement (including the Exhibits and Schedules thereto, as well
as all closing documents necessary for the consummation of the transactions
contemplated by the Agreement), is hereby amended by deleting therefrom all
references to "Middlesex Container" and inserting in lieu of each reference
thereto "Middlesex Plastics".
B. RATIFICATION, ETC. Except as otherwise expressly set forth herein,
all terms and conditions of the Agreement are hereby ratified and confirmed
and shall remain in full force and effect. Except as expressly set forth
herein, nothing herein shall be construed to be an amendment or a waiver of
any requirements of the Agreement. All references in the Agreement to the
Agreement shall, from and after the date hereof, be deemed to be references
to the Agreement as amended by this Amendment.
C. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
D. GOVERNING LAW. This Amendment shall be governed by the laws of The
Commonwealth of Massachusetts (regardless of the laws that might otherwise
govern under applicable Massachusetts principles of conflict of law) as to
all matters, including but not limited to matters of validity, construction,
effect, performance and remedies.
* * * * * * * * * * * * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as an
instrument under seal to be effective as of the date first above written.
BUYER:
SUIZA FOODS CORPORATION
By: /s/ Gregg L. Engles
-------------------------------------
Name: Gregg L. Engles
Title: Chairman of the Board and
Chief Executive Officer
FLUIDS COMPANIES:
GARELICK FARMS, INC.
By: /s/ Peter M. Bernon
-------------------------------------
FAIRDALE FARMS, INC.
By: /s/ Peter M. Bernon
-------------------------------------
GRANT'S DAIRY, INC.
By: /s/ Peter M. Bernon
-------------------------------------
MISCOE SPRINGS, INC.
By: /s/ Peter M. Bernon
-------------------------------------
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PLASTICS COMPANIES:
PLASTICS MANAGEMENT GROUP,
LLC, a Massachusetts Limited Liability
Company,
By: /s/ Alan J. Bernon
-------------------------------------
MARLBOROUGH PLASTICS, INC.
By: /s/ Alan J. Bernon
-------------------------------------
MAINE PLASTICS, INC. a Maine Corporation
By: /s/ Alan J. Bernon
-------------------------------------
FIRST CAPITAL PLASTICS, INC., a
Pennsylvania Corporation
By: /s/ Alan J. Bernon
-------------------------------------
SHERMAN PLASTICS, INC., a Texas
Corporation
By: /s/ Alan J. Bernon
-------------------------------------
NEW JERSEY PLASTICS, INC., a New
Jersey Corporation
By: /s/ Alan J. Bernon
-------------------------------------
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ILLINOIS PLASTICS, INC., an Illinois Corporation
By: /s/ Alan J. Bernon
-------------------------------------
ALLENTOWN PLASTICS INC., a Pennsylvania Corporation
By: /s/ Alan J. Bernon
-------------------------------------
KENTWOOD PLASTICS, INC., a Louisiana Corporation
By: /s/ Alan J. Bernon
-------------------------------------
FRANKLIN PLASTICS, INC.
By: /s/ Alan J. Bernon
-------------------------------------
RICHMOND CONTAINER, INC., a Virginia Corporation
By: /s/ Alan J. Bernon
-------------------------------------
NORTH CAROLINA PLASTICS, INC., a
North Carolina Corporation
By: /s/ Alan J. Bernon
-------------------------------------
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FLORIDA PLASTICS, INC., a Florida Corporation
By: /s/ Alan J. Bernon
-------------------------------------
CHESTER COUNTY CONTAINER
CORPORATION, a Pennsylvania
Corporation
By: /s/ Alan J. Bernon
-------------------------------------
ATLANTA CONTAINER, INC.
By: /s/ Alan J. Bernon
-------------------------------------
OHIO STATE PLASTICS, INC.
By: /s/ Alan J. Bernon
-------------------------------------
MIDDLESEX PLASTICS, INC.
By: /s/ Alan J. Bernon
-------------------------------------
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SELLERS:
/s/ Peter M. Bernon
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Peter M. Bernon
/s/ Alan J. Bernon
----------------------------------------------
Alan J. Bernon
QSST FOR THE BENEFIT OF JACQUELINE BERNON
/s/ Peter M. Bernon
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By: , Trustee
/s/ Alan J. Bernon
----------------------------------------------
By: , Trustee
/s/ Jonathan R. Bernon
----------------------------------------------
By: , Trustee
QSST FOR THE BENEFIT OF ALEXANDER BERNON
/s/ Drew P. Kaplan
----------------------------------------------
By: , Trustee
/s/ Alan J. Bernon
----------------------------------------------
By: , Trustee
/s/ Jonathan R. Bernon
----------------------------------------------
By: , Trustee
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QSST FOR THE BENEFIT OF DAVID BERNON
/s/ Drew P. Kaplan
----------------------------------------------
By: , Trustee
/s/ Alan J. Bernon
----------------------------------------------
By: , Trustee
/s/ Jonathan R. Bernon
----------------------------------------------
By: , Trustee
QSST FOR THE BENEFIT OF PAUL BERNON
/s/ Drew P. Kaplan
----------------------------------------------
By: , Trustee
/s/ Alan J. Bernon
----------------------------------------------
By: , Trustee
/s/ Jonathan R. Bernon
----------------------------------------------
By: , Trustee
QSST FOR THE BENEFIT OF CHARLES BERNON
/s/ Drew P. Kaplan
----------------------------------------------
By: , Trustee
/s/ Alan J. Bernon
----------------------------------------------
By: , Trustee
/s/ Jonathan R. Bernon
----------------------------------------------
By: , Trustee
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