Exhibit 10.23
AMENDMENT NO. 1
TO THE
STOCK PURCHASE AGREEMENT
This AMENDMENT NO. 1 dated as of February 28, 2000 to the Stock
Purchase Agreement, dated as of January 10, 2000, by and among McKesson HBOC,
Inc., a Delaware corporation ("Seller"), Danone International Brands, Inc., a
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Delaware corporation ("Purchaser") and Groupe Danone, a societe anonyme
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organized under the laws of the Republic of France as Guarantor (the
"Guarantor") (the "Stock Purchase Agreement"). Certain capitalized terms used
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and not otherwise defined in this Amendment No. 1 have the meanings ascribed to
them in the Stock Purchase Agreement.
RECITALS
WHEREAS, Seller, Purchaser and Guarantor entered into the Stock
Purchase Agreement as of January 10, 2000; and
WHEREAS, the parties hereto desire to amend the Stock Purchase
Agreement as set forth below.
NOW THEREFORE, the parties hereto hereby agree as follows:
1. The Stock Purchase Agreement is hereby amended by:
(a) deleting the phrase "two Business Days following the satisfaction
and/or waiver of all conditions to close set forth in Article VI" in Section 2.1
and replacing it with the phrase "on or about February 29, 2000, so long as all
conditions to close set forth in Article VI shall have been satisfied or
waived";
(b) deleting the phrase "and signed" in the first sentence of the
forepart of Article III:
(c) deleting Section 3.16 in its entirety and replacing it with the
following:
"Section 3.16 Real Property. The Disclosure Schedule sets forth a
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complete list and the location of all owned Real Property (the
"Owned Real Property"), except that Purchaser hereby acknowledges
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that the real property located adjacent to 2931 Faber Street
(a.k.a. 30020 Ahern), Union City, California 94587 is owned by
Seller. True and complete copies of all documents evidencing all
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Encumbrances upon the Owned Real Property, except as otherwise
agreed by the parties, have heretofore been furnished to
Purchaser. To the Knowledge of Seller, there are no condemnation
proceedings or eminent domain proceedings pending or threatened
in writing against the Real Property.";
(d) (i) deleting the first sentence of Section 5.10 in its entirety
and replacing it with the following:
"Purchaser shall use its commercially reasonable efforts, at
Purchaser's expense, to have released and cancelled at the
Closing each Seller Guarantee, except for the three Letters of
Credit in the principal amounts of $277,431, $113,660 and
$460,000 issued by Wachovia Bank, which Purchaser shall use its
commercially reasonable efforts to have released and cancelled no
later than 60 days after the Closing; provided, however, that to
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the extent that any Seller Guaranty cannot be so released and
cancelled, Purchaser shall use its commercially reasonable
efforts, at Purchaser's expense, to cause itself to be
substituted for Seller and each of Seller's Affiliates directly
affected thereby in respect of such Seller Guaranty (or if not
possible, added as the primary obligor with respect thereto).";
(ii) inserting immediately following the phrase "at the Closing"
in Section 5.10(a) the following: "(or, with respect to such
Letters of Credit issued by Wachovia Bank, within 60 days after
the Closing)";
(e) deleting Section 5.13(a)(2) in its entirety and replacing it with
the following:
"(2) neither the Company nor Purchaser or its Affiliates shall
make any use of such Trademarks from and after the Closing,
except as provided in Section 5.13(b).";
(f) deleting the first sentence of Section 5.13(b) in its entirety
and replacing it with the following:
"As of the Closing, Seller grants to Purchaser, the Company and
the Company Subsidiaries a non-exclusive, royalty-free,
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fully paid license to use and authorize others to use the Trademarks
employing Seller's name and any part or variation thereof used in the
business of the Company or any Company Subsidiary for a term that will
expire on December 31, 2000.";
(g) deleting the phrase "and signed" from the definition of
"Disclosure Schedule" in Section 9.1;
(h) deleting the definition of "Seller Guaranty" in Section 9.1
in its entirety and replacing it with the following:
""Seller Guaranty" shall mean the guaranty of the industrial
revenue bonds issued by an agency of Waller County, Texas in
the principal amount of $6,000,000 and three Letters of
Credit in the principal amounts of $277,431, $113,660 and
$460,000 issued by Wachovia Bank with McKesson Corporation
as the applicant on behalf of Ephrata Diamond Spring Water
Company, of which local government entities in Pennsylvania
are the beneficiaries.";
(i) adding the phrase "or any Affiliate" after the phrase "any
direct or indirect wholly owned Subsidiary" to the first sentence of
Section 10.13;
(j) deleting the first sentence of Section 10.16 in its entirety
and replacing it with the following:
"Guarantor hereby guarantees the performance by (i) the
Purchaser (or any of its assignees pursuant to Section
10.13) of all of the Purchaser's obligations hereunder or
(ii) the Company of all the Company's obligations under the
Transition Services Agreement.";
2. This Amendment No. 1 may be executed manually or by
facsimile and in two or more counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
3. Except as expressly amended in this Amendment No. 1, the
Stock Purchase Agreement remains in full force and effect and may not be
otherwise amended except in accordance with its terms.
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4. This Amendment No. 1 shall be governed by and construed in
accordance with the laws of the State of New York without regard to the
principles of conflicts of laws thereof.
5. Seller hereby represents and warrants to Purchaser and the
Guarantor, and each of Purchaser and the Guarantor hereby represent and
warrant to Seller, (i) that it has full power and authority to execute and
deliver this Amendment No. 1, (ii) the execution, delivery and performance
by it of this Amendment No. 1 has been duly authorized by its Board of
Directors, and no other corporate action on its part is necessary to
authorize the execution and delivery by it of this Amendment No. 1, and
(iii) this Amendment No. 1 has been duly executed and delivered and,
assuming due and valid authorization, execution and delivery hereof by each
of the other parties hereto, this Amendment No. 1 is a valid and binding
obligation of it, enforceable against it in accordance with its terms.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No.
1 to be signed by their respective officers thereunto duly authorized as of the
date first written above.
DANONE INTERNATIONAL BRANDS, INC.
By: /s/
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Name:
Title:
GROUPE DANONE, S.A.
By: /s/
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Name:
Title:
McKESSON HBOC, INC.
By: /s/ Ivan D. Meyerson
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Name: Ivan D. Meyerson
Title: Senior Vice President
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