AMENDATORY AGREEMENT
THIS AMENDATORY AGREEMENT (this "Amendatory Agreement") is entered into
on September 10, 1998, by and between Dean Foods Company, a Delaware corporation
("Dean"), and Agrilink Foods, Inc., a New York corporation ("Agrilink"), with
respect to the Stock Purchase Agreement dated July 24, 1998 by and between them
(the "Stock Purchase Agreement") and the Asset Transfer Agreement dated July 24,
1998 by and between them ("the Asset Transfer Agreement"). Dean and Agrilink are
sometimes referred to herein as a "Party" and collectively as the "Parties".
In consideration of the premises and the mutual agreements herein
contained, the Parties agree as follows:
1. Each of the following items is removed from Exhibit C of the
Stock Purchase Agreement:
WASECA, MINNESOTA item 1
WATSONVILLE, CALIFORNIA item 5
FAIRWATER, WISCONSIN items 2 and 3
2. The term "Title Insurance Commitments" used in the Stock Purchase
Agreement includes, in addition to the title insurance
commitments identified in Section 3(b)(x)(D) of the Stock
Purchase Agreement, each of the following:
Commitment for Title Insurance dated July 27, 1998 issued by
First American Title Insurance Company related to the Ft.
Atkinson, Wisconsin Owned Premises.
Commitment for Title Insurance dated August 10, 1998 issued by
First American Title Insurance Company related to the Cedar
Grove, Wisconsin Owned Premises.
Commitment for Title Insurance dated July 13, 1998 issued by
First American Title Insurance Company related to the Brillion,
Wisconsin Owned Premises.
3. The two pages attached hereto as Appendix A replace Section (O)
and (P) of Schedule 3(b)(xv) of the Seller Disclosure Schedule
delivered by Dean in connection with the Stock Purchase
Agreement.
4. The three pages attached hereto as Appendix B replace Schedule
3(b)(xxviii) of the Seller Disclosure Schedule delivered by Dean
in connection with the Stock Purchase Agreement.
5. Notwithstanding Section 2(d) of the Stock Purchase Agreement,
Dean agrees that Agrilink may delay the Closing under the Stock
Purchase Agreement from September 8, 1998 until as late as
September 22, 1998. Dean certifies to Agrilink that, after giving
effect to this Amendatory Agreement, each of the conditions
specified in Section 7(a)(i) through (iv), inclusive, of the
Stock Purchase Agreement (in the case of the condition specified
in Section 7(a)(iv), to the Knowledge of the Seller (as defined
in the Stock Purchase Agreement)) is satisfied on September 8,
1998. In return for such agreement and certification, Agrilink
waives each of the conditions to the obligation of Agrilink to
consummate the Closing set forth in Section 7(a)(i) through (vi),
inclusive, of the Stock Purchase Agreement and in Section
7(a)(xii) of the Stock Purchase Agreement except insofar as such
Section relates to Sections 7(a)(vii) through (xi), inclusive, of
the Stock Purchase Agreement.
6. Dean acknowledges that pursuant to the final sentence of Section
3(v) of the Asset Transfer Agreement, Agrilink has furnished
information to Dean under cover of David M. Mehalick's letter to
Brian D. Hogan dated August 18, 1998. Agrilink acknowledges that
pursuant to the final sentence of Section 3(b)(xxiv) of the Stock
Purchase Agreement, Dean has furnished information to Agrilink
under cover of Dale Hecox's undated letter to David M. Mehalick
received by facsimile on August 21, 1998. Agrilink confirms that
the post-retirement medical benefit obligations to current and
former salaried employees of Dean Foods Vegetable Company
("DFVC"), to current and form Wisconsin union and non-union,
hourly employees of DFVC and to union retirees of the Birds Eye
(General Foods) Fulton, New York and Waseca, Minnesota plants
described in such information are obligations of DFVC for which
Dean shall bear no further responsibility subsequent to the
Closing under the Stock Purchase Agreement.
7. Each of the following items is removed from Schedule A to the
form of License Agreement that is Exhibit A to the Asset Transfer
Agreement:
MARK REGISTRATION NO.
---- ----------------
Thank You 384,355
Thank You 592,509
Thank You 746,304
Thank You 749,255
Thank You 300,126
8. In the event the third parties that provide Agrilink with
financing in connection with the transactions contemplated by the
Stock Purchase Agreement require that Agrilink merger DFVC into
Agrilink promptly following the Closing under the Stock Purchase
Agreement, and provided Agrilink does not change its name in such
merger, Dean waives the obligation of Agrilink in the first
sentence of Section 6(f) of the Stock Purchase Agreement. The
second sentence of Section 6(f) of the Stock Purchase Agreement
will continue to apply notwithstanding such waiver. Any such
merger shall be a matter solely between Agrilink and such third
parties, and shall not be a transaction contemplated by the Stock
Purchase Agreement or the Asset Transfer Agreement for purposes
thereof. In the event of any such merger, references to DFVC in
the Stock Purchase Agreement with regard to any time subsequent
to such merger (for example, in Section 6(e) of, and in Exhibit B
to, the Stock Purchase Agreement) shall be deemed references to
Agrilink.
9. Item 3 of the first page of Schedule 3(k) of the Transferor
Disclosure Schedule delivered by Agrilink in connection with the
Asset Transfer Agreement is revised to
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read as follows (with an indication that the listed foreign
trademark applies to the Aseptic Business):
3. Foreign Trademarks (See attached regarding registrations)
BONUS and Design
and the following is added to the referenced attachment:
Mark Reg./Appn. No. Goods
---- -------------- --------
BONUS Canada canned products; ham and
and Design 104665 chicken sandwich deviled
ham sandwich spread, beef
and chicken sandwich
spread, ham and pickle
sandwich spread
10. Item 15 of Schedule 3(n) of the Transferor Disclosure Schedule
delivered by Agrilink in connection with the Asset Transfer
Agreement is revised to add the following: Co-Pack Agreement
dated as of June 21, 1995 with Associated Milk Producers, Inc.
11. The Stock Purchase Agreement shall be amended to add the
following Section 6(k) which shall be and read as follows:
(k) Utilization of Lawson Software. Seller agrees to pay
or reimburse Targets for the initial licensing fee of
$63,000 payable to Lawson Associates, Inc. for continued
use by Targets of Lawson Software as described in the
letter to Eric Blanchard dated September 9, 1998.
12. Section 2(f)(i) of the Stock Purchase Agreement shall be amended
to replace the number "3" with the number "4".
13. Schedule 3(k) of the Transferor Disclosure Schedule delivered by
Agrilink in connection with the Asset Transfer Agreement is
further revised to add the following disclosure:
6. Security Interests.
Immediately prior to the Closing, Transferor will
grant a Security Interest in the trademarks
referred to in paragraph 2 above to Harris Trust &
Savings Bank, which Security Interest will be
subordinated in all respects to the rights of
Transferee under the License Agreement appearing as
Exhibit A to the Asset Transfer Agreement.
Except as expressly provided in this Amendatory Agreement, the Stock
Purchase Agreement and the Asset Transfer Agreement shall remain unamended and
unwaived and shall remain in full force and effect in accordance with their
respective terms. As used in the Stock
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Purchase Agreement and the Asset Transfer Agreement, references to "this
Agreement" or the like shall refer to the same as modified by this Amendatory
Agreement.
IN WITNESS WHEREOF, the Parties have executed this Amendatory Agreement
on the date first above written.
DEAN FOODS COMPANY
By: /s/ Eric A. Blanchard
-----------------------------
Title: Vice President
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AGRILINK FOODS, INC.
By: /s/ Earl L. Powers
-----------------------------
Title: Vice President
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