EXHIBIT 2.2
FIRST AMENDMENT
TO
ASSET PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT, dated December __,
2004 (this "Amendment"), is made and entered into by and between Cajun Holding
Company, a Delaware corporation ("Buyer"), Cajun Operating Company, a Delaware
corporation ("Buyer Assignee"), and AFC Enterprises, Inc., a Minnesota
corporation ("Seller"), in order to amend that certain asset purchase agreement
by and between Buyer and Seller, dated October 30, 2004 (the "Asset Purchase
Agreement"). Pursuant to that certain Assignment of Asset Purchase Agreement,
dated December 28, 2004, between Buyer, Buyer Assignee and Seller, subject to
the limitations therein, Buyer assigned, and Buyer Assignee assumed, Buyer's
rights, titles, interests, powers, remedies, benefits, options and privileges
in, to and under the Asset Purchase Agreement, and Buyer Assignee accepted said
assignment and agreed to perform and carry out certain obligations of Buyer
under the Asset Purchase Agreement. Buyer, Buyer Assignee and Seller, in
consideration of the mutual promises contained in the Asset Purchase Agreement
and in this Amendment, and intending to be legally bound hereby, agree as
follows:
1. Amendment to ss.2.4. In consideration of the increase in the
Purchase Price of One Hundred Thousand Dollars ($100,000) pursuant to Section 2
of this Amendment, Asset Purchase Agreement ss.2.4 is amended as follows:
ss. 2.4 is amended to add the following text as new
subsection (i):
(i) all liabilities and obligations arising from or
relating to payments required to be made by Buyer arising from a
breach or alleged breach prior to the Closing of any fiduciary duties
owed by officers or directors of Seller to Seller or its shareholders
only if and only to the extent Seller actually receives insurance
proceeds under its directors' and officers' liability insurance
policies with respect to such liabilities and obligations, it being
understood and agreed that if and to the extent Seller does not
actually receive such insurance proceeds with respect to any such
liability or obligation, then such liability or obligation shall be an
Assumed Liability.
2. Amendment to ss.2.5. Asset Purchase Agreement ss.2.5 is hereby
deleted and replaced in its entirety with the following text:
Section 2.5. Closing. The closing of the transactions
contemplated by this Agreement (the "Closing") shall occur on December
28, 2004 and the date of the Closing shall be referred to herein as
the "Closing Date". Notwithstanding anything to the contrary in this
Agreement or in any instrument, agreement or document delivered by the
Parties in connection with the Closing, but subject to any claims that
Buyer may have under Article VIII (including claims based on the
covenants contained in Section 5.1 which are being made through the
Closing Date) taking into account the limitations set
forth in such Article VIII, the Parties agree that (i) the Acquired
Assets shall be deemed to be transferred to Buyer and the Assumed
Liabilities shall be deemed to be assumed by Buyer effective as of
11:59 p.m., Eastern time, on December 26, 2004 (the "Effective Time"),
(ii) the Preliminary Working Capital Schedule, the Petty Cash amount,
the Advertising Fund Deficit, and the prorations and adjustments
provided for in Section 2.12 of this Agreement (including the
Prepaids), shall be calculated as of the Effective Time, and (iii) the
benefits and burdens of the Business from and after the Effective Time
(including all profits, losses, liabilities, costs and expenses of the
Business from and after the Effective Time), shall be borne by Buyer.
Each Party shall cooperate and use its reasonable best efforts to
take, or cause to be taken, all action, and to do, or cause to be
done, all things necessary, proper or advisable under applicable Laws
to effectuate the provisions of this Section 2.5.
3. Amendments to ss.2.6(a).
(a) Asset Purchase Agreement ss.2.6(a) is hereby amended
by replacing "Three Hundred Eighty-Three Million Dollars ($383,000,000)" with
"Three Hundred Eighty Three Million One Hundred Thousand Dollars
($383,100,000)".
(b) Asset Purchase Agreement ss.2.6(a)(i) is hereby
amended by inserting "an estimate of" in front of "the Prepaids."
4. Amendment to ss.2.12(e). Asset Purchase Agreement ss.2.12(e)
is hereby deleted and replaced in its entirety with the following text:
(e) all prepaid rents and other prepaid charges or
credits with respect to the period from and after the Closing Date paid by
Seller or its Subsidiaries under the Leases or Utility Contracts (the
"Prepaids") shall be transferred to Buyer, and Buyer shall pay Seller an
estimate of the Prepaids at Closing;
5. Amendment to Schedule 1.1(b). Asset Purchase Agreement
Schedule 1.1(b) is hereby amended by deleting the existing schedule in its
entirety and replacing it with Schedule 1.1(b) attached hereto.
6. Amendment to Schedule 5.3(d). Asset Purchase Agreement
Schedule 5.3(d) is hereby amended by deleting the existing schedule in its
entirety and replacing it with Schedule 5.3(d) attached hereto.
7. Amendment to ss.5.13. Asset Purchase Agreement ss.5.13 is
hereby amended by deleting "and it shall continue to order products from SMS or
its designated suppliers consistent with the past practice of the Business"
from the last sentence of such section.
8. Addition of ss.5.28. The Asset Purchase Agreement is amended
to add the following as ss.5.8:
Section 5.28 Directors and Officers Insurance. If, at any
time with five (5) years following the Closing, Seller fails to renew
or otherwise discontinues coverage under its existing directors and
officers liability insurance policies or if such insurance policies
are
2
otherwise cancelled or rescinded, and Seller elects, in its sole
discretion, to seek to obtain a new policy or policies to provide
coverage for the liabilities covered by such currently existing
policies (including, without limitation, a "tail" policy to cover such
liabilities with respect to prior periods if Seller ceases to maintain
directors' and officers' liability insurance for then-current
periods), then, if requested by Buyer, Seller will use reasonable best
efforts to cause such new policy or policies to provide coverage for
the liabilities and obligations set forth in Section 2.4(i) to the
extent the existing policies provide such coverage, provided that
Buyer agrees to pay all costs and expenses associated with obtaining
such coverage for the liabilities and obligations set forth in Section
2.4(i) and that Seller will not be obligated to seek such coverage on
behalf of Buyer if Seller, in its discretion, determines doing so
would be a more than immaterial impediment to obtaining the insurance
coverage Seller was otherwise seeking. If, within five (5) years of
the Closing, Seller fails to renew or other discontinues coverage
under its existing directors' and officers' liability insurance
policies or if such polices are otherwise cancelled or rescind, Seller
will use its reasonable best efforts to provide Buyer written notice
of such event within a reasonable time prior to the date on which such
insurance coverage would terminate.
9. Amendment to ss.8.2. Asset Purchase Agreement ss.8.2 is hereby
amended to add the following text as new subsection (f):
(f) except as would otherwise constitute an Excluded
Liability under the provisions of Section 2.4, other
than Section 2.4(i), the exclusion of the
liabilities and obligations set forth in Section
2.4(i) from the Assumed Liabilities (except and only
to the extent Seller receives insurance proceeds
with respect to such liabilities and obligations),
including all costs, expenses and other Losses
associated with seeking to obtain any insurance
proceeds with respect to such liabilities and
obligations.
10. No Other Effect on the Asset Purchase Agreement. Except as
amended by this Amendment, the Asset Purchase Agreement remains in full force
and effect.
11. Effective Date. This Amendment is effective December 28,
2004.
12. Miscellaneous.
(a) Captions; Certain Definitions. Titles and captions
of or in this Amendment are inserted only as a matter of convenience and for
reference and in no way define, limit, extend or describe the scope of this
Amendment or the intent of any of its provisions. The parties to this Amendment
agree to all definitions in this statement of the parties to this Amendment. A
capitalized term in this Amendment has the same meaning as it has as a
capitalized term in the Asset Purchase Agreement unless the context clearly
indicates to the contrary.
(b) Controlling Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Georgia (regardless
of the laws that might otherwise
3
govern under applicable principles of conflicts of laws thereof) as to all
matters, including matters of validity, construction, effect, performance and
remedies.
(c) Counterparts. This Amendment may be executed in
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement. Any counterpart may be executed by
facsimile signature and such facsimile signature shall be deemed to be an
original signature.
4
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed as of the date first written above.
Buyer: CAJUN HOLDING COMPANY
By: /s/ E. Stockton Croft, IV
------------------------------------
Name: E. Stockton Croft, IV
Title: Treasurer and Assistant Secretary
Buyer Assignee: CAJUN OPERATING COMPANY
By: /s/ E. Stockton Croft, IV
------------------------------------
Name: E. Stockton Croft, IV
Title: Treasurer and Assistant Secretary
Seller: AFC ENTERPRISES, INC.
By: /s/ Peter Ward
------------------------------------
Name: Peter Ward
Title: Vice President and Assistant Secretary
Acknowledged and Agreed:
DRAWBRIDGE SPECIAL
OPPORTUNITIES FUND LP
By: /s/ Constantine Dakolias
------------------------------------
Name: Constantine Dakolias
Title: Chief Credit Officer
5