Exhibit 10.2


 


ADDENDUM


 


TO


 


THE STOCK PURCHASE AGREEMENT


 


 


ADDENDUM AGREEMENT, dated as of December 11, 2003, between ALIMENTATION
COUCHE-TARD, INC. (“Parent”), a corporation organized under the laws of the
Province of Quebec, Canada, and CONOCOPHILLIPS COMPANY (“Seller”), a Delaware
Company.


 


W I T N E S S E T H :


 


WHEREAS
Parent and Seller have executed as of October 3, 2003 a stock purchase
agreement providing for the sale by Seller to Couche-Tard, U.S. LP (then known
as 9103-4793 Delaware LP), a limited partnership wholly owned directly or
indirectly by Parent, of all the issued and outstanding shares of The Circle K
Corporation (the “Stock Purchase Agreement”);


 


WHEREAS
Parent and Seller wish to modify the Stock Purchase Agreement as provided
herein; and


 


WHEREAS
unless the context shall otherwise require, terms used and not defined herein
but defined or given meaning in the Stock Purchase Agreement shall have the
meaning assigned to such terms in the Stock Purchase Agreement and all rules as
to usage set forth in Section 14.13 therein shall apply hereto;


 


NOW, IN CONSIDERATION of the premises and the mutual covenants and agreements hereinafter set
forth and other good and valuable consideration, the receipt and sufficiency
thereof are hereby acknowledged by the parties, the parties hereto agree as
follows:


 


1.                                                                                       The
following definitions are added to Article I of the Stock Purchase Agreement:


 


“ADA Adjustment”
means $18,600,000, the amount of reduction of the Cash Consideration determined
by the parties under the ADA Agreement;


 


“ADA Agreement”
has the meaning set forth in Section 11.1(q);


 


“General Adjustment”
means $6,500,000, a further amount of reduction of the Cash Consideration, as
determined by the parties;


 


“Seller Transition
Services Agreement” has the meaning set forth in
Section 11.1(r);


 

















 


2.                                                                                       The
definition of “Transaction Documents” in Article 1 of the Stock Purchase
Agreement is hereby modified by adding thereto the following after the words
“Tempe Office Lease” in the 6th line:  “, the ADA Agreement, the “Seller Transition Services Agreement”.


 


3.                                                                                       Section
3.1 of the Stock Purchase Agreement is hereby deleted and replaced by the
following:


 


“3.1                           Amount and Form of
Consideration.  Parent shall cause
Purchaser to pay to Seller on the Closing Date as consideration for the Company
Shares an amount equal to:


 


(i)                                     the Cash
Consideration;


 


(ii)                                  minus the
Environmental Liabilities Adjustment;


 


(iii)                               minus the Store Closing
Adjustment;


 


(iv)                              minus the Estimated Debt
Adjustment;


 


(v)                                 minus the ADA Adjustment;


 


(vi)                              minus the General
Adjustment;


 


(vii)                           plus or minus the Estimated
Working Capital Adjustment. “


 


4.                                                                                       Section
11.1 of the Stock Purchase Agreement is hereby modified by (i) deleting the
word “Purchaser” in each of subsections 11.2(b), (c), (d), (e), (g), (h), (i),
(j) and (k) and each time replacing the same by the following “Purchaser’s
Affiliate mentioned therein” ,(ii) deleting the word “and” at the end of
subsection 11.1(p), (iii) inserting the following:


 


“(q) a copy, duly executed by Seller at the
time of execution of this Addendum to the Stock Purchase Agreement, of the ADA
Agreement (the “ADA Agreement”), substantially in the form attached hereto as
Exhibit 11.1(q);


 


(r) a copy duly executed by Seller of the
Seller Transition Services Agreement (the “Seller Transition Services
Agreement”), substantially in the form attached hereto as Exhibit 1.1(r); and”


 


; and changing the alphabetical reference of
subsection “11.1(q) “ to “11.1(s) “;


 


5.                                                                                       Section
11.2 of the Stock Purchase Agreement is hereby modified by (i) deleting the
word “and” at the end of subsection 11.1(k), (ii) inserting the following:


 


“(l) a copy duly executed by Parent a the
time of execution of this Addendum to the Stock Purchase Agreement, of the ADA
Agreement”;


 


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(m) a copy duly executed by Purchaser’s
Affiliate mentioned therein of the Seller Transition Services Agreement; and”


 


; and changing the alphabetical reference of
subsection “11.(l) “ to “11.1(n) “;


 


6.                                                                                       The
Stock Purchase Agreement is hereby modified by adding thereto the ADA Agreement
attached as Exhibit 11.1(q) thereof.


 


7.                                                                                       Schedules
5.8(a)(i), 5.8(a)(ii), 5.8(c)(i), 5.8(c)(ii) and 5.21(a) of the Stock Purchase
Agreement are hereby deleted and replaced by the attached schedules 5.8(a)(i),
5.8(a)(ii), 5.8(c)(i), 5.8(c)(ii) and 5.21(a).


 


8.                                                                                       All
modifications to the Stock Purchase Agreement set out in this Agreement take
effect immediately upon execution hereof.


 


9.                                                                                       This
Agreement is deemed to form part of the Stock Purchase Agreement which remains
in full force and effect, unchanged and unmodified, except only as specifically
modified herein.


 


10.                                                                                 Assignability


 


Neither party shall have the right to
transfer and assign, in whole or in part, its rights and obligations under this
Agreement without the prior written consent of the other party.  In the event of any assignment, assignor
shall nevertheless remain fully responsible and liable hereunder.  Notwithstanding the foregoing, (i) each of
Parent and Seller may assign its rights or delegate the performance of its
obligations hereunder to any of its Subsidiaries and (ii) Parent may assign any
or all of its rights and interests hereunder to its senior lenders and the
agents therefor as collateral security for Parent’s obligations under its
credit facility with such lenders and agents, as such credit facility may be
amended, supplemented or otherwise modified from time to time, provided that
Parent or Seller, as the case may be, shall remain fully liable for the
performance of its obligations hereunder.


 


11.                                                                                 Waivers
and Amendments


 


No waiver shall be deemed to have been made
by either of the parties of any of its rights under this Agreement unless the
same shall be in writing that is signed on its behalf by its authorized representative
of the party against whom any such waiver is claimed.  Any such waiver shall constitute a waiver only with respect to
the specific matter described in such writing and shall in no way impair the
rights of either Parent or Seller, as the case may be, in any other respect or
at any other time.  This Agreement shall
not be amended or modified except by an instrument in writing signed by the
party against whom enforcement is sought.


 


12.                                                                                 Headings


 


The headings contained in this Agreement are
for convenience of reference only and do not qualify or affect in any way the
meaning or interpretation of this Agreement.


 


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13.                                                                                 Counterparts


 


This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute a single instrument.


 


14.                                                                                 Governing
Law


 


This Agreement shall be construed and
enforced in accordance with, and shall be governed by, the laws of the State of
New York, without regard to conflicts of laws provisions except that New York
General Obligations Law Section 5-1401 shall apply.


 


IN WITNESS WHEREOF, the parties hereto have
executed this Agreement effective as of the date written above.


 


	
   

  	
   

  	
  CONOCOPHILLIPS COMPANY

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
  s/William R. Gover

  	
   

  
	
   

  	
   

  	
  Name:

  	
  WILLIAM R. GOVER

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Asset Disposition Project Lead

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ALIMENTATION COUCHE-TARD INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By :

  	
   

  	
  s/Richard Fortin

  	
   

  
	
   

  	
   

  	
  Name : 

  	
  RICHARD FORTIN

  	
   

  
	
   

  	
   

  	
  Title :

  	
  Executive Vice-President and Chief

  Financial Officer

  	
   

  



 


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