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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
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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 Hu
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