EXHIBIT 2.3
SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT
This Second Amendment to Stock Purchase Agreement (the "Second
Amendment") dated effective as of July 11, 2003, by and between AFC ENTERPRISES,
INC., a Minnesota corporation ("AFC") and STARBUCKS CORPORATION, a Washington
corporation ("Purchaser"), serves to amend the Stock Purchase Agreement dated as
of April 15, 2003, by and among the parties hereto (the "Stock Purchase
Agreement"). Capitalized terms not otherwise defined herein shall have the
meaning attributed to such terms in the Stock Purchase Agreement.
RECITAL
The parties wish to amend Appendix B of the Stock Purchase Agreement to clarify
the treatment of Transferred Employees and benefit plans under the Agreement and
to correct certain typographical errors contained in the Stock Purchase
Agreement.
Therefore, the parties agree to amend the Stock Purchase Agreement as
follows:
AMENDMENT
1. Amendments to Appendix B.
1.1 The first sentence of Section 3(a) of Appendix B of the Stock
Purchase Agreement is amended to read as follows:
"Commencing at the Effective Time, Purchaser shall cause the
Companies to continue the at-will employment of each
Transferred Employee other than Transferred Employees who are
employed by AFC, and the Transferred Employees who are
employed by AFC shall become at-will employees of either
Purchaser or one of the Companies, as determined by
Purchaser."
1.2 Section 4(a)(ii) of Appendix B of the Stock Purchase Agreement
is amended by adding the following sentence:
"Notwithstanding the foregoing, AFC shall not continue SRC
coverage (a fully insured health plan for certain restaurant
workers) for the Transferred Employees during the Extension
Period."
1.3 Section 4(c) of Appendix B of the Stock Purchase Agreement is
amended by adding the following sentence:
"Purchaser acknowledges that coverage of the Transferred
Employees during the Extension Period will not be subject to
AFC's stop-loss coverage, and Purchaser agrees that it will be
liable to AFC for any amounts that would otherwise be
reimbursed by such coverage."
1.4 The final sentence of Section 5(c) of Appendix B of the Stock
Purchase
Page 1 - SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT
Agreement is amended to read as follows:
"During the Extension Period, but not beyond, AFC will allow
(through plan amendment or otherwise) Transferred Employees to
continue their participation in the flexible spending account
for health care under the AFC Group Health Plan. (As of the
Effective Time, Transferred Employees will cease participation
in their dependent care flexible spending accounts under the
AFC Group Health Plan, but may utilize any residual account
balances by submitting claims for expenses incurred during the
balance of the 2003 plan year, including the Extension
Period.) During the Extension Period, no additional
contributions to the Transferred Employees' flexible spending
accounts for health care will be withheld from the Transferred
Employees' compensation, but the total amount that each
Transferred Employee elected to contribute to his or her
flexible spending account for health care (minus any amount
used to reimburse previously incurred claims) will be
available to pay claims incurred during the Extension Period
as if they were contributed. During the Extension Period,
Transferred Employees will also have the opportunity to add,
change or cancel enrollment due to a qualified family status
change. Purchaser shall reimburse AFC for any amounts paid
from the Transferred Employees' flexible spending accounts for
health care for claims incurred during the Extension Period in
excess of the difference between the amount contributed to
these accounts by the Transferred Employees and any such
amounts used to reimburse previously incurred claims."
2. Correction of Typographical Errors.
2.1 The phrase "true and correct" is hereby inserted in the first
sentence of Section 6 of the Agreement after the phrase "which
representations and warranties set forth herein shall be".
2.2 The word "and" is hereby inserted in the first sentence of
Section 6 of the Agreement after the phrase "as of the date
hereof".
2.3 In Section 11.a.vii, the phrase "development of franchise
rights" is hereby amended to be "development or franchise
rights".
3. Counterparts. This Second Amendment may be executed in one or more
counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have
been signed by each of the parties and delivered to the other parties.
Page 2 - SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT
4. Entire Agreement; Effectiveness of Second Amendment. This Second
Amendment, together with the Stock Purchase Agreement, as amended by
the First Amendment to the Stock Purchase Agreement dated June 30, 2003
("First Amendment")(including without limitation all exhibits,
schedules and appendices thereto) constitutes the entire agreement
between the parties, and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect
to the subject matter of this Second Amendment. Except as expressly
provided in this Second Amendment, all other terms and conditions of
the Stock Purchase Agreement, including all exhibits, schedules and
appendices thereto, and the First Amendment remain in full force and
effect and are not amended or modified in any respect.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
Page 3 - SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed or caused this Second
Amendment to be executed and delivered their duly authorized officers, as of the
day and year first above written.
AFC ENTERPRISES, INC. STARBUCKS CORPORATION
By: /s/ Allan J. Tanenbaum By: /s/ Michael Casey
------------------------------- -------------------------------
Name: Allan J. Tanenbaum Name: Michael Casey
----------------------------- -----------------------------
Title: Senior Vice President Title: Executive Vice President
---------------------------- ----------------------------
Page 4 - SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT