Stock Purchase Agreement [Amendment] - Whole Foods Market Group Inc., Nature's Heartland Inc., and Leo Kahn
AMENDMENT TO STOCK PURCHASE AGREEMENT
This Amendment to Stock Purchase Agreement is made as of August _____,
1999 by and among Whole Foods Market Group, Inc., a Delaware corporation (the
"Purchaser"), Nature's Heartland, Inc., a Massachusetts corporation (the
"Company"), Leo Kahn ("Kahn") and the other former shareholders of the Company
who are signatories hereto (such persons, together with Kahn, being referred to
herein collectively as the "Sellers").
WHEREAS, the Purchaser, the Company and the Sellers entered into a
Stock Purchase Agreement dated as of April 30, 1999 (the "Agreement") pursuant
to which the Purchaser purchased from the Sellers on April 30, 1999 all of the
issued and outstanding capital stock of the Company; and
WHEREAS, the Purchaser, the Company and the Sellers have determined
that it is in their mutual best interests to amend the Agreement in certain
respects pursuant to, and in accordance with, Section 7.8 of the Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto, intending to be legally bound, do hereby
agree as follows:
1. Defined Terms. All capitalized terms used herein which are not
otherwise defined shall have the same respective meanings as those terms set
forth in the Agreement.
2. Additional Covenant as to Company Tax Matters. Section 5 of the
Agreement is hereby amended by adding a new Section 5.5 immediately following
Section 5.4 of the Agreement which shall read as follows:
5.5 Post-Closing Tax Matters. >From and after the Closing
Date, none of the Purchaser, the Company nor any of their Affiliates
shall, without the prior written consent of Kahn (i) request any tax
good standing certificate, corporate excise tax lien waiver or any
other similar tax clearance certificate from any department, agent or
other taxing authority of the Commonwealth of Massachusetts; (ii)
request any review, examination or audit of the Company's tax filings
or payments by any department, agency or other taxing authority of the
Commonwealth of Massachusetts, (iii) take any other action which could
reasonably be expected to precipitate any review, examination or audit
of the Company's tax filings or payments by any department, agency or
other taxing authority of the Commonwealth of Massachusetts or (iv)
agree to extend, waive or toll any statute of limitations applicable to
any tax return filed or any tax which may have been payable prior to
the Closing Date. In the event that either the Purchaser or the Company
shall receive notice at any time following the Closing Date, that any
department, agency or other taxing authority of the Commonwealth of
Massachusetts intends to conduct, or has commenced, any review,
examination or audit of the Company's tax filings or payments for any
period ending on or prior to the Closing Date, the Purchaser or the
Company shall promptly give notice thereof to Kahn in the same manner
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as notice is given to any indemnifying party under Section 6.4 hereof
and Kahn shall be entitled to participate in such review, examination
or audit as an indemnifying party in accordance with Section 6.4.
3. Survival of Representations, Warranties and Covenants. Section 6.3
of the Agreement is hereby amended by deleting said Section 6.3 in its entirety
and inserting in lieu thereof a new Section 6.3 which shall read as follows:
6.3 Survival of Representations, Warranties and Covenants. All
representations, warranties, covenants and agreements made by any party
to this Agreement or pursuant hereto shall be deemed to be material and
to have been relied upon by the parties hereto, and shall survive until
the 18 month anniversary of the Closing Date; provided, however, that
the Sellers representation and warranty set forth in Section 3.7 with
respect to the payment of Massachusetts sales and use taxes shall
continue thereafter and shall survive until the expiration of the
applicable statute of limitations. Notice of any claim, whether made
under the indemnification provisions hereof or otherwise, based on a
breach of a representation, warranty, covenant or agreement must be
given prior to the expiration of such representation, warranty,
covenant or agreement; and any claim not made within such period shall
be of no force or effect. The representations and warranties hereunder
shall not be affected or diminished by any investigation at any time by
or on behalf of the party for whose benefit such representations and
warranties were made.
4. Ratification of the Agreement. Except to the extent expressly
amended hereby, the Agreement shall remain in full force and effect and, as so
amended, is hereby ratified and confirmed.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date and year first above written.
WHOLE FOODS MARKET GROUP, INC.
By: /s/ Glenda Flanagan
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NATURE'S HEARTLAND, INC.
By:
SELLERS:
Leo Kahn /s/ Leo Kahn
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Joseph Kahn /s/ Joseph Kahn
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Daniel Kahn /s/ Daniel Kahn
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Elizabeth Kahn /s/ Elizabeth Kahn
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