FirstAmendment to Asset Purchase Agreement

Contract Categories: Business Finance - Purchase Agreements
EX-10.1 2 v423032_ex10-1.htm EXHIBIT 10.1

 

Exhibit 10.1

 

First Amendment
to
Asset Purchase Agreement

 

This First Amendment to Asset Purchase Agreement (this “Amendment”) is made and entered into as of July 28, 2015, by and among Jamba Juice Company, a California corporation (“Seller”), and Vitaligent, LLC, a Delaware limited liability company, or its permitted assigns (“Buyer”).

 

RECITALS

 

WHEREAS, Buyer and Seller are all of the parties to that certain Asset Purchase Agreement dated as of April 1st, 2015 (the “Agreement”); and

 

WHEREAS, the Closing of the transactions contemplated in the Asset Purchase Agreement has not yet occurred; and

 

WHEREAS, the parties have engaged in further discussions and negotiations concerning the terms and conditions of the transactions contemplated by the Agreement; and

 

WHEREAS, the parties now wish to enter into this Amendment to modify the terms and conditions concerning the transactions contemplated by the Agreement.

 

NOW, THEREFORE, in consideration of the premises, the mutual promises made herein, and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged and agreed, the parties hereby agree as follows:

 

Agreement

 

1.                  Defined Terms. Unless otherwise defined in this Amendment, all capitalized terms shall have the meanings ascribed to such terms in the Agreement, as modified hereby.

 

2.                  Purchased Assets.

 

a.                   Seller represents and warrants that the revised Section 4.8 of the Disclosure Schedule attached hereto as Exhibit A constitutes the true, complete and accurate list of the Stores.

 

b.                  The final period in Section 2.1(ii) is hereby deleted and replaced with “; and” and the following new subsection 2.1(iii) is added to the Agreement immediately thereafter:

 

(iii) The Change Fund, in an amount equal to $1,200.00, on hand at each Store as of the Effective Time. Seller shall ensure that there is at least $1,200.00 in each Store register at the Effective Time.

 

3.                  Purchase Price and Payment. Section 3.1 of the Agreement is hereby deleted in its entirety and replaced with the following:

 

3.1 Consideration.

 

(a) The purchase price (the “Purchase Price”) for the Purchased Assets shall be Twenty-Five Million Dollars ($25,000,000). The Purchase Price includes the Initial Fee for each of the Stores otherwise due under any Franchise Agreement.

 

(b) The Purchase Price shall be paid by Buyer as follows:

 

 

 

 

(i) An amount equal to $50,000, shall be paid to the Escrow Agent to cover defects in and replacements to the Fixed Assets at these Stores as further described in Section 12.3 (“Fixed Assets Escrow”).

 

(ii) The delivery by Buyer to Seller of a promissory note, in substantially the form attached hereto as Exhibit 3.1(b), in the original principal amount of Two Million Dollars ($2,000,000) (the “Promissory Note”).

 

(iii) The balance of the Purchase Price, after the payment in (i) above is made, and reduced by $2,000,000 represented by the original principal amount of the Promissory Note delivered pursuant to (ii) above, shall be paid to Seller by wire transfer of immediately available funds to an account designated by Seller at Closing. The balance shall be adjusted to account for any deficiencies in the Change Fund.

 

4.                  Store Refreshes. Section 3.2 of the Disclosure Schedule, as attached to the Agreement, is hereby deleted in its entirety and replaced with the form of Section 3.2 of the Disclosure Schedule attached hereto as Exhibit A.

 

5.                  Conditions to Closing. Sections 8.1(e) and 8.1(f) of the Agreement are hereby deleted in their entirety and replaced as follows:

 

(e) [Intentionally Omitted].

 

(f) The financing conditions precedent set forth in Section 7.3 shall have been completed as provided in that Section.

 

6.                  Closing.

 

a.                   Section 10.1 of the Agreement is hereby deleted in its entirety and replaced with the following:

 

10.1 Time and Place. The parties shall undertake reasonable good faith commercial efforts to effect the transfer of the Purchased Assets by Seller to Buyer (the “Closing”) on or before July 28, 2015, or such other date to which the parties mutually agree (the “Closing Date”), with the Closing to be deemed effective as of 11:59 p.m., Pacific Daylight Time, on the Closing Date (the “Effective Time”). The obligations of the Parties to close or effect the transactions contemplated by this Agreement will be subject to satisfaction, unless duly waived, of the applicable conditions set forth in this Agreement, and, subject to the parties’ termination rights expressly set forth herein, if any said condition is not satisfied or waived, the Closing Date shall be extended until satisfaction of such condition. Notwithstanding the foregoing, if the Closing has not occurred on or before August 31, 2015 (the “Walkaway Date”), then Seller and Buyer shall each have the right at any time after the Walkaway Date, but prior to Closing, to terminate this Agreement pursuant to Section 13.1.

 

First Amendment to Asset Purchase Agreement Page 2

 

 

b.                  Section 10.3(a) of the Agreement is hereby deleted in its entirety and replaced with the following:

 

(a) (i) The cash portions of the Purchase Price pursuant to Sections 3.1(b)(i) and 3.1(b)(iii), by wire transfer of immediately available funds to accounts designated by Seller and the Escrow Agent, and (ii) the executed Promissory Note; and

 

c.                   The reference to the Letter of Credit in Section 10.3(b) of the Agreement is hereby deleted.

 

7.                  Post-Closing Matters. The last sentence of Section 12.3 of the Agreement is hereby deleted in its entirety and replaced, Section 12.4 of the Agreement is hereby deleted in its entirety and replaced, and a new Section 12.5 is hereby added to the Agreement, in the appropriate order, as follows:

  

12.3 “The total amount to be reimbursed to Buyer for defects and replacements of Fixed Assets shall not exceed One Hundred Forty-Four Thousand Dollars ($144,000) for all Stores combined.”

 

12.4 [Intentionally Omitted].

 

12.5 Easybar Replacements. Within two days after the Closing Date, Seller will reimburse Buyer the amount of Two Hundred and Fifty Thousand Dollars ($250,000) for the expected out-of-pocket expenses to be incurred by Buyer in replacing, not later than May 31, 2016 (the “Deadline”), the Easybar beverage dispensing systems in each of the Stores with sales greater than Seven Hundred Thousand Dollars ($700,000), which shall be calculated based on the trailing twelve months of sales prior to Closing (as identified on Section 4.8 of the Disclosure Schedule or otherwise agreed to in writing between Buyer and Seller), with a Crathco system substantially similar to that used in other stores within the System (as defined in the Franchise Agreement). Such replacement and expenses shall include refinishing each Store such that it meets the then-applicable standards for appearance of such Store set forth in the Franchise Agreement and all applicable health and safety standards.

 

8.                  Definitions. Annex 1.1 of the Agreement is hereby amended as follows:

 

a.The definition of “Change Fund” is hereby deleted in its entirety and replaced as follows:

 

Change Fund” means the cash on hand at each Store equal to $1,200.00.

 

b.The definition of “Letter of Credit” is hereby deleted in its entirety.

 

c.The definition of “Marketable Inventory” is amended by adding the following at the end thereof: “, and of a quantity that is necessary and appropriate to operate each Store on a day to day basis.”

 

d.A definition of “Promissory Note” is added as follows:

 

Promissory Note” has the meaning given to it in Section 3.1(b)(ii).

 

First Amendment to Asset Purchase Agreement Page 3

 

 

9.                  Reaffirmation of Representations and Warranties.

 

a.                   Seller hereby reaffirms, and represents and warrants, that the representations and warranties of Seller set forth in Article IV of the Agreement as written as of the date of the Agreement, were, subject to the qualifications set forth on the Disclosure Schedule at such time, true and correct as of the date of the Agreement.

 

b.                  Seller hereby represents and warrants that the representations and warranties of Seller set forth in Article IV of the Agreement as modified by this Amendment, are, subject to the qualifications set forth on the Disclosure Schedule attached hereto, true and correct as of the date of this Amendment.

 

c.                   Buyer hereby reaffirms, and represents and warrants, that the representations and warranties of Buyer set forth in Article V of the Agreement were true and correct as of the date of the Agreement and are true and correct as of the date of this Amendment.

 

10.              Limited Waivers. Seller acknowledges and agrees that the Initial Financing Contingency Requirement set forth in Section 7.2 of the Agreement has been performed and satisfied, and further waives any right to terminate the Agreement based on the conditions set forth in Section 7.2 of the Agreement. Buyer and Seller further acknowledge and agree that the Agreement has not terminated pursuant to Section 7.2 or Section 7.3.

 

11.              Seller Approval of ShowMe Transaction. The parties acknowledge that, in connection with the transactions contemplated by the Agreement, as modified by this Amendment, at the Closing Buyer desires to acquire direct ownership of ShowMe Smoothie, LLC, a Missouri limited liability company (“ShowMe”) which, directly or indirectly, is the franchisee of JAMBA JUICE® stores in the St. Louis, Missouri and Columbia, Missouri areas, and which has certain area development rights for additional JAMBA JUICE® stores. To the extent required by any agreement(s) by and between Seller and ShowMe or any of ShowMe’s wholly-owned subsidiaries, Seller hereby consents to, and waives any and all rights arising out of, the acquisition of ShowMe by the Buyer as of the Closing.

 

12.              Additional Provisions.

 

a.                   Except to the limited extent expressly provided by this Amendment, nothing herein shall constitute a waiver of any provision of, or of any right arising under or pursuant to, the Agreement.

 

b.                  Except to the limited extent expressly modified by this Amendment, the Agreement shall remain and continue in full force and effect without modification hereby, and the Agreement, as amended by this Amendment, is hereby ratified and affirmed in all respects.

 

c.                   THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF CALIFORNIA AS APPLIED TO CONTRACTS THAT ARE EXECUTED AND PERFORMED ENTIRELY IN CALIFORNIA. EACH PARTY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF CALIFORNIA AND THE U.S. FEDERAL COURTS SITTING IN SAN FRANCISCO COUNTY, CALIFORNIA FOR PURPOSES THEREOF. THE PARTIES AGREE THAT VENUE FOR ANY SUCH PROCEEDING SHALL BE THE STATE AND FEDERAL COURTS LOCATED IN SAN FRANCISCO COUNTY, CALIFORNIA. EACH PARTY TO THIS AMENDMENT WAIVES AND AGREES NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE, IN ANY SUCH ACTION OR PROCEEDING, ANY CLAIM THAT (A) IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURTS, (B) THE ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR (C) THE VENUE OF THE ACTION OR PROCEEDING IS IMPROPER.

 

d.                  This Amendment may be executed and delivered, by digital, electronic or manual means, in multiple counterparts, each of which shall be an original and all of which together shall constitute one and the same instrument.

 

First Amendment to Asset Purchase Agreement Page 4

 

 

IN WITNESS WHEREOF, the parties to this Amendment have duly executed it on the day and year first above written.

 

“SELLER”   “BUYER”
         
JAMBA JUICE COMPANY   VITALIGENT, LLC
a California corporation   a Delaware limited liability company
         
By: /s/ Karen L. Luey   By: /s/ H. Dean VandeKamp
Name:  Karen L. Luey   Name:  H. Dean VandeKamp
Its: Chief Financial Officer,   Its: President
  Chief Administrative Officer,      
  Executive Vice President and Secretary      

 

 

Signature Page to
First Amendment to Asset Purchase Agreement

 

 

 

 

Exhibit A
Revised Disclosure Schedule

 

Section 3.2 – Refresh Stores

 

Store # Entity Address City State
0325 Vitaligent-East Bay, LLC 3990 El Camino Real Palo Alto CA
0391 Vitaligent-East Bay, LLC 415 N. Mary Ave. Ste. 109 Sunnyvale CA
0728 Vitaligent-East Bay, LLC 1720 Story Rd., Ste. #46 San Jose CA
0779 Vitaligent-East Bay, LLC 1849 East Capitol Expressway San Jose CA
1011 Vitaligent-East Bay, LLC 5442 Ygnacio Valley Rd., Ste. 190 Concord CA
0062 Vitaligent-NorCal, LLC 2914 Fulton Ave. Sacramento CA
0153 Vitaligent-NorCal, LLC 1361 W. Covell Blvd. #115 Davis CA
0360 Vitaligent-NorCal, LLC 1021 10th Street Ste. B Modesto CA
0361 Vitaligent-NorCal, LLC 13389 Folsom Blvd. #400 Folsom CA
0419 Vitaligent-NorCal, LLC 2100 Arden Way #192 Sacramento CA
0508 Vitaligent-NorCal, LLC 4640 Natomas Blvd. #120 Sacramento CA
0620 Vitaligent-NorCal, LLC 1728 W. Olive Ave. Merced CA
0622 Vitaligent-NorCal, LLC 1897 East Gibson Rd., Ste. E Woodland CA
0624 Vitaligent-NorCal, LLC 2155 Town Center Plaza, Ste. #140 West Sacramento CA
0633 Vitaligent-NorCal, LLC 825 S. Hwy 65, #80 Lincoln CA
0956 Vitaligent-NorCal, LLC 2829 W. March Lane, Ste. C7 Stockton CA

 

 

Section 4.8 – Prime Leases; Stores; Leased Real Properties

 

Store # Address City State
4 21265 Stevens Creek Blvd. #201 Cupertino CA
31 1570 South Bascom Ave. San Jose CA
35 1030 El Paseo de Saratoga San Jose CA
48 628 Blossom Hill Rd. Los Gatos CA
59 1037 A. El Monte Ave. Mountain View CA
63 1140 Lincoln Ave. #A San Jose CA
93 704 A Bancroft Rd. Walnut Creek CA
123 1425 Duncan Street Walnut Creek CA
155 3518 C. Mt. Diablo Blvd. Lafayette CA
156 65 Crescent Dr. Ste. C Pleasant Hill CA
173 125 Bernal Rd. B-40 San Jose CA
325 3990 El Camino Real Palo Alto CA
391 415 N. Mary Ave. Ste. 109 Sunnyvale CA
409 2029 Camden Ave. San Jose CA
436 1704 Oakland Rd. Ste. 200 San Jose CA
453 2855 Stevens Creek Blvd, Ste. 9180 Santa Clara CA
487 1450 Travis Blvd. #2 Fairfield CA
499 2990 E. Capitol Expressway #30 San Jose CA
528 5779 Lone Tree Way Antioch CA
556 925 Blossom Hill Rd., Ste. 1593 San Jose CA
589 4402 Century Boulevard Pittsburg CA

 

First Amendment to Asset Purchase Agreement Page A-1

 

 

Store # Address City State
616 1975 Diamond Blvd., D-5 Concord CA
706 8630 Brentwood Blvd. Brentwood CA
728 1720 Story Rd., Ste. #46 San Jose CA
739 695 Coleman Ave., Ste. 10 San Jose CA
779 1849 East Capitol Expressway San Jose CA
860 547 East Calaveras Blvd. Milpitas CA
1009 91 Curtner Ave., Ste. 80 San Jose CA
1011 5442 Ygnacio Valley Rd., Ste. 190 Concord CA
1129 372 North Capitol Ave. San Jose CA
40 2447 Fair Oaks Blvd. Sacramento CA
62 2914 Fulton Ave. Sacramento CA
153 1361 W. Covell Blvd. #115 Davis CA
329 2030 Douglas Blvd. #24 Roseville CA
357 2401 E. Orangeburg Ave. Modesto CA
360 1021 10th Street Ste. B Modesto CA
361 13389 Folsom Blvd. #400 Folsom CA
363 1228 Galleria Blvd. #150 Roseville CA
406 201 Lincoln Center Stockton CA
419 2100 Arden Way #192 Sacramento CA
423 7440 Laguna Blvd. #120 Elk Grove CA
426 2793 E. Bidwell Street, Ste. 300 Folsom CA
428 6061 Sunrise Blvd. Citrus Heights CA
440 1127 Alhambra Blvd. Sacramento CA
474 1429 Broadway #B Sacramento CA
493 3801 Pelandale Ave., Ste. 101 Modesto CA
494 3100 Countryside Dr Ste. 100 Turlock CA
507 9160 W. Stockton Blvd., Ste. 160 Elk Grove CA
508 4640 Natomas Blvd. #120 Sacramento CA
538 2600 Gateway Oaks Dr. #300 Sacramento CA
554 2501 Naglee Rd., Ste. A Tracy CA
590 3987 Missouri Flat Rd., Ste. 300 Placerville CA
592* Kettleman Lane, & Lower Sacramento Rd. Lodi CA
620 1728 W. Olive Ave. Merced CA
621 10952 Trinity Pkwy, Ste. H Stockton CA
622 1897 East Gibson Rd., Ste. E Woodland CA
623 2091-A Harbison Dr. Vacaville CA
624 2155 Town Center Plaza, Ste. #140 West Sacramento CA
625 4720 Elk Grove Blvd., Ste. 190 Elk Grove CA
627 10907 Olson Dr. Rancho Cordova CA
631 1151 Galleria Blvd., Space 258-A Roseville CA
632 10305 Fairway Dr. #140 Roseville CA
633 825 S. Hwy 65, #80 Lincoln CA
658 1445 Hulsey Way Manteca CA
673 2625 Sierra Meadows Dr. #100 Rocklin CA
736 9304 Elk Grove Blvd., Ste. 160 Elk Grove CA
768 7903 Walerga Rd., #102 Antelope CA
775 8878 Madison Ave., Space 8890 Bldg C Fair Oaks CA
812 1689 Arden Way, Ste. 1112 Sacramento CA
813 1651 E. Monte Vista Ave, Ste. 101 Vacaville CA
862 2160 Daniels St. Manteca CA
880 8231 Timberlake Way, Ste. 100 Sacramento CA
956 2829 W. March Lane, Ste. C7 Stockton CA

 

* Note that this Store is not yet constructed or open. Sublease shall be executed at Closing and all obligations to construct and operate store shall pass to Buyer, subject to the terms set forth in the First Amendment to Asset Purchase Agreement.

 

First Amendment to Asset Purchase Agreement Page A-2