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:


 


3.1Consideration.


 


(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:


 


10.1Time
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].


 


12.5Easybar
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