-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, JCBGDM1wpgyqO8Y8vYbSoCd7JLvxCpEQD54fVVvFie8NBuMGp5nYFksrC2RiTkod vRu8mg/MO+h3up7e7jv03Q== 0001029869-98-001246.txt : 19981109 0001029869-98-001246.hdr.sgml : 19981109 ACCESSION NUMBER: 0001029869-98-001246 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 19981028 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19981106 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AU BON PAIN CO INC CENTRAL INDEX KEY: 0000724606 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING PLACES [5812] IRS NUMBER: 042723701 STATE OF INCORPORATION: DE FISCAL YEAR END: 1229 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 000-19253 FILM NUMBER: 98739369 BUSINESS ADDRESS: STREET 1: 19 FID KENNEDY AVE CITY: BOSTON STATE: MA ZIP: 02210 BUSINESS PHONE: 6174232100 MAIL ADDRESS: STREET 1: 19 FID KENNEDY AVE CITY: BOSTON STATE: MA ZIP: 02210 8-K 1 AU BON PAIN CO., INC. FORM 8-K SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of report (Date of earliest event reported) October 28, 1998 ----------------------------- AU BON PAIN CO., INC. - -------------------------------------------------------------------------------- (Exact Name of Registrant as Specified in Its Charter) Delaware - -------------------------------------------------------------------------------- (State or Other Jurisdiction of Incorporation) 0-19253 04-2723701 - -------------------------------------------------------------------------------- (Commission File Number) (IRS Employer Identification No.) 19 Fid Kennedy Avenue, Boston, Massachusetts 02210-2497 - -------------------------------------------------------------------------------- (Address of Principal Executive Offices) (Zip Code) 617-423-2100 - -------------------------------------------------------------------------------- (Registrant's Telephone Number, Including Area Code) - -------------------------------------------------------------------------------- (Former Name or Former Address, if Changed Since Last Report) TABLE OF CONTENTS FORM 8-K October 28, 1998
Item Page - ---- ---- Item 5. Other Events. 1 Item 7. Financial Statements and Exhibits. 1 Signature 3 Exhibits E-1
Item 5. Other Events. On October 28, 1998, Au Bon Pain Co., Inc. (the "Company"), ABP Holdings, Inc., a Delaware corporation and wholly owned subsidiary of the Company ("ABPH"), and ABP Corporation, a Delaware corporation controlled by Bruckmann, Rosser, Sherrill & Co., Inc., a private equity investment firm based in New York (the "Buyer"), entered into an amendment (the "Amendment") to the Stock Purchase Agreement dated as of August 12, 1998 (the "Original Agreement," and together with the Amendment, the "Amended Agreement"), which Original Agreement was the subject of a Form 8-K filed by the Company on August 21, 1998, the contents of which are hereby incorporated by reference. The Amended Agreement contemplates (a) the transfer, in the aggregate, from the Company to ABPH and a new Delaware corporation to be formed as a wholly owned subsidiary of the Company ("ABP Newco," and collectively with ABPH, the "Subsidiaries"), of substantially all of the operating assets, store leases, contracts and liabilities associated with the Company's bakery cafe food service and franchise business concept generally known as Au Bon Pain (the "Au Bon Pain Division"), (b) the merger of ABP Newco with and into ABPH, with ABPH being the surviving corporation and (c) the sale of all of the capital stock of ABPH to the Buyer, whereby the Buyer will become the owner of the Au Bon Pain Division (the "Sale"). The Sale will become effective subject to the terms and conditions of the Amended Agreement, including, but not limited to, the approval of the stockholders of the Company, consents of certain landlords, governmental approvals, and consummation of financing pursuant to previously obtained commitments from Buyer's lenders and investors, of which no assurance can be given. In the event the Sale is consummated, the Company expects to record a non-cash after-tax loss of approximately $20 million in connection with the Sale. The description of the Amended Agreement contained herein is qualified in its entirety by reference to (a) the Original Agreement and certain letter agreements with respect to the Sale, attached as Exhibits 2, 10.1 and 10.2, respectively, to the Company's Form 8-K filed August 21, 1998 and incorporated herein by reference and (b) the Amendment, attached as Exhibit 2 hereof and incorporated by reference herein. Pursuant to the Amended Agreement, the purchase price payable to the Company upon the effectiveness of the Sale shall be seventy three million dollars ($73,000,000), subject to possible purchase price adjustments, as described in the Amended Agreement. Item 7. Financial Statements and Exhibits. a. Financial statements of businesses acquired. Not applicable. b. Pro forma financial information. Not applicable. - 1 - c. Exhibits. The following exhibits are filed with this report:
Exhibit No. Title ----------- ----- 2 Amendment to Stock Purchase Agreement dated as of October 28, 1998, by and among Au Bon Pain Co., Inc., ABP Holdings, Inc. and ABP Corporation.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] - 2 - SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Au Bon Pain Co., Inc. Date: November 5, 1998 By:/s/Anthony J. Carroll --------------------------------- Anthony J. Carroll, Treasurer - 3 - EXHIBIT INDEX
Exhibit No. Title ----------- ----- 2 Amendment to Stock Purchase Agreement dated as of October 28, 1998, by and among Au Bon Pain Co., Inc., ABP Holdings, Inc. and ABP Corporation.
E-1 EX-2 2 EXECUTION COPY AMENDMENT TO STOCK PURCHASE AGREEMENT This AMENDMENT TO STOCK PURCHASE AGREEMENT (together with the Schedules and Attachments hereto, this "Amendment") is made as of the 28th day of October, 1998, by and among AU BON PAIN CO., INC., a Delaware corporation ("Seller"); ABP HOLDINGS, INC., a Delaware corporation ("ABPH") and ABP CORPORATION, a Delaware corporation ("Buyer"). W I T N E S S E T H: WHEREAS, Seller, ABPH and Buyer entered into a Stock Purchase Agreement dated August 12, 1998 (together with the Schedules and Attachments thereto, and as amended hereby, the "Agreement"), pursuant to which, among other things, Seller agreed: (1) to transfer to its wholly-owned subsidiary ABPH substantially all of the operating assets, store leases, contracts and liabilities associated with its Au Bon Pain Division pursuant to a Contribution Agreement to be entered into in the form attached to the Agreement as Exhibit 5.06; and (2) to sell and convey to Buyer all of Seller's capital stock of APBH, all upon and subject to the terms and conditions of the Agreement; and WHEREAS, Seller, ABPH and Buyer desire to amend the Agreement in certain respects as provided in this Amendment; and WHEREAS, unless otherwise expressly defined herein, capitalized terms used herein shall have the respective meanings ascribed to them in the Agreement. NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties contained herein, the parties agree as follows: 1. Purchase Price. --------------- Section 2.01 of the Agreement is amended by deleting the text therefrom in its entirety and substituting therefor the following: "Section 2.02 Form and Payment of Purchase Price. Subject to adjustment as herein provided, the Purchase Price shall be SEVENTY-THREE MILLION DOLLARS ($73,000,000). At the Closing, Buyer shall pay to Seller the Purchase Price, as adjusted by the estimated amounts provided pursuant to Section 2.03(c) plus any amounts due pursuant to Section 2.05(a), by wire transfer of immediately available funds, to the account or accounts which are designated in writing by the Seller and delivered to Buyer at least two (2) Business Days prior to Closing." 2. Contribution Agreement. ----------------------- (a) Section 5.06 of the Agreement is amended by deleting the text therefrom in its entirety and substituting therefor the following: "Section 5.06 Transfer of Assets and Assumption of Liabilities. (a) Immediately prior to the Closing, the following transactions shall take place in the order set forth below: (1) Seller shall transfer and assign or sublease to ABPH (for no additional consideration from Buyer) all of Seller's right, title and interest in and to the assets (including Intellectual Property), contracts, leases and agreements including, without limitation, all development agreements and individual franchise agreements (foreign and domestic) and ABPH shall assume certain liabilities, in each case relating to the Au Bon Pain Division, (but specifically excluding all leasehold improvements, machinery and equipment, signs, furniture and fixtures, transportation equipment and other fixed tangible equipment) pursuant to a Non-Fixed Asset Contribution Agreement to be entered into in the form attached hereto as Restated Exhibit 5.06A on terms which include all authorizations and consents which are necessary to permit the sale of the ABPH Common Stock to Buyer; provided, however, that Seller shall not assign or sublease to ABPH any store lease or other contract for which it fails or is unable to obtain a consent required under or in connection with such lease as a condition to such assignment or sublease or to the sale of the ABPH Common Stock to Buyer as contemplated herein. (2) Seller shall transfer and assign (for no additional consideration from Buyer) to a Delaware corporation to be formed by Seller ("ABP Newco") all of Seller's right, title and interest in and to all leasehold improvements, machinery and equipment, signs, furniture and fixtures, transportation equipment and other fixed tangible equipment relating to the Au Bon Pain Division pursuant to a Fixed Asset Contribution Agreement to be entered into in the form attached hereto as Restated Exhibit 5.06B. (3) ABP Newco shall merge with and into ABPH, with ABPH being the surviving corporation, in accordance with the Delaware General Corporation Law and the terms of an Agreement and Plan of Merger to be executed by ABP Newco and ABPH prior to the Closing in form and substance reasonably acceptable to each of Buyer and Seller, such merger to become effective prior to the Closing upon the filing of a Certificate of Merger with the Secretary of State of Delaware. (4) The Non-Fixed Asset Contribution Agreement and the Fixed Asset Contribution Agreement shall be referred to herein collectively as the "Contribution Agreement". The transactions contemplated by the Non-Fixed Asset Contribution Agreement and the Fixed Asset Contribution Agreement shall be referred to herein as the "Restructuring". (b) From the date of its formation through the Closing Date, ABP Newco will engage in no business activity other than the Restructuring." (b) Section 1.01 of the Agreement is amended by inserting a new subsection (d) at the end of such section as follows: "(d) Any reference in the Agreement to the Contribution Agreement shall be deemed to be a reference to both the Non-Fixed Asset Contribution Agreement and the Fixed Asset Property Contribution Agreement. Any reference in this Agreement to "this Agreement" shall mean the Agreement as amended by the Amendment dated October 28, 1998." (c) Section 3.24 of the Agreement is amended by deleting the last sentence therefrom and substituting therefor the following: "At or prior to the Closing, all such owned and leased assets, except as otherwise expressly provided in this Agreement, shall be transferred to ABP Newco and ABPH in connection with the Restructuring contemplated by Section 5.06 free and clear of all Encumbrances, except to the extent otherwise disclosed on Schedule 3.24. From the date of its formation through the Closing Date, ABP Newco will engage in no business activity other than the Restructuring contemplated by Section 5.06." 3. Net Worth Adjustment. --------------------- (a) Section 2.03(f) of the Agreement is amended by deleting the text therefrom in its entirety and substituting therefor the following: "(f) The term "Net Worth Adjustment" shall mean the amount, if any, by which the difference between: (1) the "Consolidated Assets" (as hereinafter defined) minus net plant, property and equipment, minus (2) "Consolidated Liabilities" (as hereinafter defined) of ABPH, on a consolidated basis as of the Closing Date (after giving effect to the Restructuring), exceeds or is less than the difference between: (1) the Consolidated Assets minus net plant, property and equipment, minus (2) Consolidated Liabilities of the Au Bon Pain Division, on a consolidated basis as of April 18, 1998. If the Net Worth Adjustment is positive (up to Three Million Dollars ($3,000,000)), it shall be added to the Purchase Price to be paid by Buyer to Seller at the Closing pursuant to Section 2.02. If the Net Worth Adjustment is negative, it shall be deducted from the Purchase Price to be paid by Buyer to Seller at the Closing pursuant to Section 2.02. As used herein the terms: (1) "Consolidated Assets" shall mean the sum of cash, accounts receivable, inventories, prepaid expenses and plant, property and equipment and "Other Assets", but such term shall exclude the $431,000 note receivable from Northern Bakers, Inc. created in connection with the transfer of the bakery/cafe known as "Big D" from Seller to Northern Bakers, Inc.; and (2) "Consolidated Liabilities" shall mean the sum of accounts payable, accrued expenses and minority interests, in each case calculated in accordance with GAAP applied consistently with the ABP Division Financial Statements."." 4. Transition Services Agreement. The form of Transition Services Agreement to be entered into at the Closing in the form attached to the Agreement as Exhibit 7.06 is amended by deleting such exhibit in its entirety and substituting therefor the form of agreement attached hereto as Restated Exhibit 7.06. 5. Representations and Warranties. (a) Schedule 3.10 of the Agreement is amended by adding to such schedule Supplemental Schedule 3.10 attached hereto. (b) Schedule 3.21 of the Agreement is amended by adding to such schedule Supplemental Schedule 3.21 attached hereto. 6. Conditions to Obligations of Buyer. Section 8.03(c) of the Agreement is amended by deleting therefrom the phrase "July 11, 1998" and substituting therefor the phrase "October 3, 1998". 7. Reaffirmation and Confirmation of Agreement. Except as otherwise set forth in this Amendment, the Agreement is ratified and confirmed in all respects. IN WITNESS WHEREOF, the parties hereto caused this Agreement to be duly executed, individually or by their respective authorized officers, on the day and year first above written. WITNESS: BUYER: - -------- ------ ABP CORPORATION /s/ Adrian J. van Schie By /s/ Stephen F. Edwards - --------------------------- ----------------------------- Adrian J. van Schie Name: Stephen F. Edwards Title: President SELLER: ------- AU BON PAIN CO., INC. /s/ Anthony J. Carroll By /s/Ronald M. Shaich - --------------------------- ----------------------------- Anthony J. Carroll Name: Ronald M. Shaich Title: Co-Chairman and Chief Executive Officer ABPH: ----- ABP HOLDINGS, INC. /s/ Anthony J. Carroll By /s/Louis I. Kane - --------------------------- ----------------------------- Anthony J. Carroll Name: Louis I. Kane Title: President -----END PRIVACY-ENHANCED MESSAGE-----