1
EXHIBIT 10.18
AGREEMENT
THIS AGREEMENT, entered into as of July 31, 1997, by and among HORIZON
ACQUISITION CORP., a Georgia corporation ("HAC"); HORIZON MEDICAL PRODUCTS,
INC., a Georgia corporation ("HMP"); NEOSTAR HOLDING, INC., a Delaware
corporation and successor in interest through merger to Neostar Medical
Technologies, Inc., a Delaware corporation, ("Neostar"); XXXXXX X. XXXX
("Xxxx"); XXXXXX X. XXXXXX, XX ("Xxxxxx"); XXXXXXX X. XXXXX, as Trustee of the
Xxxxx Family Trust ("Xxxxx"); and XXXXX X. XXXXXXXXXXX ("Bronnenkant" and
together with Pike, Darden, and Xxxxx, the "Shareholders");
WHEREAS, the parties are parties to that certain Asset Purchase
Agreement dated October 24, 1995 ("Asset Purchase Agreement");
WHEREAS, pursuant to the Asset Purchase Agreement, HAC delivered to
Neostar that certain Secured Subordinated Note dated October 24, 1995 in the
principal amount of $2,461,017.00 payable by HAC to Neostar (the "Note"), which
provides for certain payments to Neostar commencing January 31, 1997;
WHEREAS, pursuant to the Asset Purchase Agreement, HAC and Pike entered
into that certain Non-Competition and Consulting Agreement dated October 24,
1995 ("Pike Agreement"), which provides for certain monthly payments by HAC to
Pike commencing January 31, 1997;
WHEREAS, pursuant to the Asset Purchase Agreement, HAC and Xxxxxx
entered into that certain Non-Competition and Consulting Agreement dated October
24, 1995 ("Xxxxxx Agreement"), which provides for certain monthly payments by
HAC to Xxxxxx commencing January 31, 1997;
WHEREAS, pursuant to the Asset Purchase Agreement, HAC and Xxxxx
entered into that certain Non-Competition and Consulting Agreement dated October
24, 1995 ("Xxxxx Agreement"), which provides for certain monthly payments by HAC
to Xxxxx commencing January 31, 1997;
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WHEREAS, pursuant to the Asset Purchase Agreement, HAC and Bronnenkant
entered into that certain Non-Competition and Consulting Agreement dated October
24, 1995 ("Bronnenkant Agreement"), which provides for certain monthly payments
by HAC to Bronnenkant commencing January 3l, 1997;
WHEREAS, pursuant to the Asset Purchase Agreement, HAC granted to
Neostar, Pike, Darden, Wells, and Bronnenkant a security interest in and lien on
certain assets of HAC as provided in Security Agreement dated October 24, 1995
("Security Agreement") for the purpose of securing payment by HAC of the Note
and amounts owed under the Pike Agreement, the Xxxxxx Agreement, the Xxxxx
Agreement, and the Bronnenkant Agreement;
WHEREAS, the parties have agreed to revise the payment schedules during
1997 under the Note and under the Pike Agreement, the Xxxxxx Agreement, the
Xxxxx Agreement, and the Bronnenkant Agreement and have reached certain other
agreements, as provided below due to the inability of HAC to presently make all
the payments due thereunder:
NOW, THEREFORE, in consideration for the agreements contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. The Note shall be amended as provided in the Amendment to Secured
Subordinated Note, attached hereto as Exhibit "A" and incorporated herein by
reference.
2. The Pike Agreement shall be amended as provided in the Amendment to
Non- Competition and Consulting Agreement, attached hereto as Exhibit "18" and
incorporated herein by reference.
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3. The Xxxxxx Agreement shall be amended as provided in the Amendment
to Non-Competition and Consulting Agreement, attached hereto as Exhibit "C" and
incorporated herein by reference.
4. The Xxxxx Agreement shall be amended as provided in the Amendment to
Non-Competition and Consulting Agreement, attached hereto as Exhibit "D" and
incorporated herein by reference.
5. The Bronnenkant Agreement shall be amended as provided in the
Amendment to Non-Competition and Consulting Agreement, attached hereto as
Exhibit "E" and incorporated herein by reference.
6. The Security Agreement shall be amended as provided in the Amendment
to Security Agreement, attached hereto as Exhibit "F" and incorporated herein by
reference.
7. Effective upon the execution and delivery by all applicable parties
of the Amendment to Secured Subordinated Note attached hereto as Exhibit "A",
the Amendment to Non-Competition and Consulting Agreement attached as hereto
Exhibit "B", the Amendment to Non-Competition and Consulting Agreement attached
as hereto Exhibit "C", the Amendment to Non-Competition and Consulting Agreement
attached as hereto Exhibit "D", the Amendment to Non-Competition and Consulting
Agreement attached as hereto Exhibit "E", and the Amendment to Security
Agreement attached hereto as Exhibit "F", HMP and HAC acknowledge and agree
that the conditions described in Section 3.3(a) of the Asset Purchase Agreement
have been satisfied and any adjustments contemplated by Section 3.3(b) have been
made and that the indebtedness owed by HAC under the Note, the Pike Agreement,
the Xxxxxx Agreement, the Xxxxx Agreement, and the Bronnenkant Agreement shall
not be reduced by any amount pursuant to the provisions of such Section 3.3(a)
or Section 3.3(b).
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8. This Agreement contains the entire agreement and understanding
between the parties respecting the subject matter hereof and supersedes all
prior and collateral agreements and understandings, regardless of form or
nature, between the parties respecting that subject matter. No extension,
amendment, modification, or supplement to this Agreement will be-effective
unless made in writing signed by the parties hereto. This Agreement will be
binding on and inure to the benefit to the parties hereto and their respective
successors and assigns. This Agreement may be executed in multiple counterparts,
each of which will constitute an original, but all of which together will
constitute one and the same agreement. The validity, construction, and
enforcement of this Agreement and all matters related thereto or in connection
therewith will be governed by the laws of the State of Georgia.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first set forth above. ATTEST: HORIZON ACQUISITION
CORP.
/s/ [unreadable] By: /s/ [unreadable]
----------------------- ------------------------------
Title: Secretary Title: President
----------------- ---------------------------
ATTEST: HORIZON MEDICAL PRODUCTS, INC.
/s/ [unreadable] By: /s/ [unreadable]
----------------------- ------------------------------
Title: Asst. Secretary Title: President
----------------- ---------------------------
ATTEST: NEOSTAR HOLDING, INC.
/s/ [unreadable] By: /s/ Xxxxxx X. Xxxx
----------------------- ------------------------------
Title: Secretary Title: President
----------------- ---------------------------
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/s/ [unreadable] /s/ Xxxxxx X. Xxxx
----------------------- ---------------------------------
Witness Xxxxxx X. Xxxx
/s/ [unreadable] /s/ Xxxxxx X. Xxxxxx, XX
----------------------- ---------------------------------
Witness Xxxxxx X. Xxxxxx, XX
/s/ [unreadable] /s/ Xxxxxxx X. Xxxxx, Trustee
----------------------- ---------------------------------
Witness Xxxxxxx X. Xxxxx, as Trustee of
the Xxxxx Family Trust
/s/ [unreadable] /s/ Xxxxx X. Xxxxxxxxxxx
----------------------- ---------------------------------
Witness Xxxxx X. Xxxxxxxxxxx
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Exhibit "A"
AMENDMENT TO SECURED SUBORDINATED NOTE
THIS AMENDMENT, entered into as of ______________, 1997, by and between
HORIZON ACQUISITION CORP., a Georgia corporation ("HAC"), and NEOSTAR HOLDING,
INC., a Delaware corporation and successor in interest through merger to Neostar
Medical Technologies, Inc., a Delaware corporation, ("Neostar");
WHEREAS, HAC has delivered to Neostar that certain Secured Subordinated
Note dated October 24, 1995 in the principal amount of $2,461,017.00 payable by
HAC to Neostar (the "Note");
WHEREAS, Neostar is the holder of the Note;
WHEREAS, HAC is presently unable to make the payments under the Note
according to its terms and as a consequence thereof, HAC and Neostar have agreed
to structure the 1997 payment schedule in the Note and to make certain other
agreements as hereinafter provided;
NOW, THEREFORE, in consideration for. the agreements contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. The payment schedule for the Note, as set forth on the first page of
the Note, is hereby revised, amended, and restated as follows:
Except as provided below upon the occurrence of an "Acceleration
Event", the principal amount of this Note shall be payable in the
following installment payments of principal:
(i) The following payments of principal during 1997:
$35,000.00 on July 31, 1997; $15,000.00 on July
31, 1997; $25,000.00 on August 31, 1997;
$25,000.00 on September 30, 1997; $25,000.00 on
October 31, 1997; $25,000.00 on November 30,
1997; and $25,000.00 on December 31, 1997;
THE PAYMENT OF THE DEBT EVIDENCED HEREBY IS SUBORDINATED TO ALL DEBTS OF THE
MAKER TO SIRROM CAPITAL CORPORATION AS SET FORTH IN A SUBORDINATION AGREEMENT
DATED OCTOBER 24, 1995.
(ii) $145,240.00 in twelve (12) consecutive monthly
installments of principal of $12,103.33 per
month, payable on the last day of each month,
commencing
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January 31, 1998 and continuing through December
31, 1998;
(iii) $253,200.00 in eighteen (18) consecutive monthly
installments of principal of $ 14,066.67 per
month, payable on the last day of each month,
commencing January 31, 1999 and continuing
through June 30, 2000;
(iv) $84,400.00 of principal on July 31, 2000;
(v) $60,753.00 of principal on January 31, 2001;
(vi) $121,506.00 of principal on October 31, 2001;
(vii) $86,841.50 of principal on April 30, 2002;
(viii) $86,841.50 of principal on October 31, 2002;
(ix) $1,160,000.00 of principal on April 30, 2003;
and
(x) $287,235.00 of principal on October 31, 2003.
2. The following provision is hereby added to the Note at the end of
the first paragraph on the first page of the Note:
Notwithstanding the preceding sentence, the amount of $37,235.00
(the "Deferred Amount") that was originally payable under this Note
during 1997 has been deferred and is now payable as part of and is
included in the amount of principal of $287,235.00 due and payable
under this Note on October 31, 2003. Interest at the simple per
annum interest rate of "Prime Rate" plus one percent shall be
accrued, commencing on February 1, 1997, on the outstanding balance
of the Deferred Amount, to be calculated as follows:
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Amount Amount Outstanding
Payable Payable Balance of
Date Under Under Deferred
Original Revised Amount
Payment Payment
Schedule Schedule
--------------------- ----------------- ------------ -----------
January 31, 1997 $ 17,686.25 $ 0.00 $ 17,686.25
February 28, 1997 $ 17,686.25 $ 0.00 $ 35,372.50
March 31, 1997 $ 17,686.25 $ 0.00 $ 53,058.75
April 30, 1997 $ 17,686.25 $ 0.00 $ 70,745.00
May 31, 1997 $ 17,686.25 $ 0.00 $ 88,431.25
June 30, 1997 $ 17,686.25 $ 0.00 $106,117.50
July 31, 1997 $ 0.00 $35,000.00 $ 71,117.50
July 31, 1997 $ 17,686.25 $15,000.00 $ 73,803.75
August 31, 1997 $ 17,686.25 $25,000.00 $ 66,490.00
September 30, 1997 $ 17,686.25 $25,000.00 $ 59,176.25
October 31, 1997 $ 17,686.25 $25,000.00 $ 51,862.50
November 30, 1997 $ 17,686.25 $25,000.00 $ 44,548.75
December 31, 1997 $ 17,686.25 $25,000.00 $ 37,235.00
Such accrued interest shall be payable on December 31, 1997 and in quarterly
payments after December 31, 1997 on each March 31, June 30, September 30, and
December 31 thereafter until the Deferred Amount is paid in full; provided that
in the event an "Acceleration Event" (as defined ill this Note) occurs and the
"Final Payoff Amount" (as defined in this Note) is paid, all accrued interest on
the outstanding balance of the Deferred Amount through the date on which the
Final Payoff Amount is paid shall be payable in full on the date of such
payment. In addition, in determining the Final Payoff Amount, the Deferred
Amount shall not be discounted to present value but shall be payable in full.
"Prime Interest" shall mean the prime interest rate as shown daily in The Wall
Street Journal under "Money Rates", which prime rate is presently 8 1/2 and
which prime rate for purposes of this calculation shall change the day after any
change in the Prime Interest as published in The Wall Street Journal under
"Money Rates" commencing on February 1, 1997 through the date on which the
Deferred Amount is paid in full.
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3. Unless expressly amended herein, all other provisions in the Note
are ratified and confirmed in all respects and shall continue in full force and
effect.
4. This Amendment contains the entire agreement and understanding
between the parties respecting the subject matter hereof and supersedes all
prior and collateral agreements and understandings, regardless of form or
nature, between the parties respecting that subject matter. No extension,
amendment, modification, or supplement to this Amendment will be effective
unless made in writing signed by the parties hereto. This Amendment will be
binding on and inure to the benefit to the parties hereto and their respective
successors and assigns. This Amendment may be executed in multiple counterparts,
each of which will constitute an original, but all of which together will
constitute one and the same agreement. The validity, construction, and
enforcement of this Amendment and all matters related thereto or in connection
therewith will be governed by the laws of the State of Georgia.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the date first set forth above.
ATTEST: HORIZON ACQUISITION CORP.
By:
---------------------- ------------------------------
Title: Title:
---------------- ---------------------------
ATTEST: NEOSTAR HOLDING, INC.
By:
---------------------- ------------------------------
Title: Title:
---------------- ---------------------------
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EXHIBIT "B"
AMENDMENT TO NON-COMPETITION
AND CONSULTING AGREEMENT
THIS AMENDMENT, entered into as of ______________, 1997, by
and between HORIZON ACQUISITION CORP., a Georgia corporation ("HAC"), and XXXXXX
X. XXXX ("Xxxx");
WHEREAS, HAC and Pike have entered into that certain
Non-Competition and Consulting Agreement dated October 24, 1995 ("Pike
Agreement");
WHEREAS, the parties desire to amend the Pike Agreement in the
manner hereinafter provided;
Now, THEREFORE, in consideration for the agreements contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. The payment schedule under the Pike Agreement, as described in
paragraph 4 thereof and in Schedule A thereto, is hereby revised, amended, and
restated as follows:
All of the payments payable to Pike during 1997 under paragraph 4(a)
and Schedule A for non-competition covenants, totaling the sum of
$74,800.44, shall not be payable during 1997, but shall be payable
in full to Pike on October 31, 2002. All of the payments payable to
Pike during 1997 under paragraph 4(b) and Schedule A for consulting
services, totaling the sum of $24,933.48, shall not be payable
during 1997, but shall be payable in full to Pike on October 31,
2002. All of the payments during 1998, 1999, 2000, 2001, and 2002
under Schedule A shall continue to be paid in accordance with
Schedule A. In addition to the amounts now payable to Pike on
October 31, 2002 for non-competition
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covenants and for consulting services, the additional
amount of $33,658.39 for non-competition covenants under
paragraph 4(a) and Schedule A and $ 11,219.46 for
consulting services under paragraph 4(b) and Schedule A
shall be payable in full to Pike on October 31, 2002.
The payment of the debt evidenced hereby is subordinated to all debts of the
Maker to Sirrom Capital Corporation as set forth in a Subordination Agreement
dated October 24, 1995.
2. Section 4(c) of the Pike Agreement shall be deleted in
its entirety.
3. The following provision shall be added to the Pike
Agreement as paragraph 4(h):
(h) The cumulative amount of $99,733.92 (the
"Deferred Amount") that was originally payable under
Sections 4(a) and 4(b) and Schedule A hereto during 1997
has been deferred and is now payable in full on October
31, 2002. In addition to all other amounts now payable on
October 31, 2002 under Sections 4(a) and 4(b) and Schedule
A hereto, the additional cumulative amount of $44,878.00
(the "Additional Amount") is now payable in full on October
31, 2002 as provided above. In determining the "Final
Payoff Amount" (as defined in this paragraph 4) in the
event an Acceleration Event (as defined in this paragraph
4) occurs:
(i) The Deferred Amount shall not be
discounted to present value but shall
be payable in full; and
(ii) The Additional Amount shall be reduced
to its prevent value as of the date on
which the Acceleration Event occurs
using an interest rate of eight and
one-half percent (8 1/2%) in
determining such present value.
4. Unless expressly amended herein, all other provisions in the
Pike Agreement are hereby ratified and confirmed in all respects and shall
continue in full force and effect.
5. This Amendment contains the entire agreement and understanding
between the parties respecting the subject matter hereof and supersedes all
prior and collateral agreements and understandings, regardless of form or
nature, between the parties respecting that subject matter. No extension,
amendment, modification, or supplement to this Amendment will be effective
12
unless made in writing signed by the parties hereto. This Amendment will be
binding on and inure to the benefit of the parties hereto and their respective
successors and assigns. This Amendment may be executed in multiple counterparts,
each of which will constitute an original, but all of which together will
constitute one and the same agreement. The validity, construction, and
enforcement of this Amendment and all matters related thereto or in connection
therewith will be governed by the laws of the State of Georgia.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the date first set forth above.
ATTEST: HORIZON ACQUISITION CORP.
By:
--------------------------- ---------------------------
Title: Title:
--------------------- ------------------------
--------------------------- ------------------------------
Witness Xxxxxx X. Xxxx
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EXHIBIT "C"
AMENDMENT TO NON-COMPETITION
AND CONSULTING AGREEMENT
THIS AMENDMENT, entered into as of _____________, 1997, by and between
HORIZON ACQUISITION CORP., a Georgia corporation ("HAC"), and XXXXXX X. XXXXXX,
XX ("Xxxxxx");
WHEREAS, HAC and Xxxxxx have entered into that certain Non-Competition
and Consulting Agreement dated October 24, 1995 ("Xxxxxx Agreement");
WHEREAS, the parties desire to amend the Xxxxxx Agreement in the
manner hereinafter provided;
NOW, THEREFORE, in consideration for the agreements contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. The payment schedule under the Xxxxxx Agreement, as described in
paragraph 4 thereof and in Schedule A thereto, is hereby revised, amended, and
restated as follows:
All of the payments payable to Xxxxxx during 1997 under paragraph
4(a) and Schedule A for non-competition covenants, totaling the sum
of $74,800.44, shall not be payable during 1997, but shall be
payable in full to Xxxxxx on October 31, 2002. All of the payments
payable to Xxxxxx during 1997 under paragraph 4(b) and Schedule A
for consulting services, totaling the sum of $24,933.48, shall not
be payable during 1997, but shall be payable in full to Xxxxxx on
October 31, 2002. All of the payments during 1998, 1999, 2000, 2001,
and 2002 under Schedule A shall continue to be paid in accordance
with Schedule A. In addition to the amounts now payable to Xxxxxx on
October 31, 2002 for non-competition covenants and for consulting
services, the additional amount of $33,658.39 for non-competition
covenants under paragraph 4(a) and Schedule A and $11,219.46 for
consulting services under paragraph 4(b) and Schedule A shall be
payable in full to Xxxxxx on October 31, 2002.
The payment of the debt evidenced hereby is subordinated to all debts of the
Maker to Sirrom Capital Corporation as set forth in a Subordination Agreement
dated October 24, 1995.
2. Section 4(c) of the Xxxxxx Agreement shall be deleted in
its entirety.
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3. The following provision shall be added to the Xxxxxx
Agreement as paragraph 4(11):
(h) The cumulative amount of $99,733.92 (the
"Deferred Amount") that was originally payable under
Sections 4(a) and 4(b) and Schedule A hereto during 1997
has been deferred and is now payable in full on October
31, 2002. In addition to all other amounts now payable on
October 31, 2002 under Sections 4(a) and 4(b) and Schedule
A hereto, the additional cumulative amount of $44,878.00
(the "Additional Amount") is now payable in full on October
31, 2002 as provided above. In determining the "Final
Payoff Amount" (as defined in this paragraph 4) in the
event an Acceleration Event (as defined in this paragraph
4) occurs:
(i) The Deferred Amount shall not be discounted to its
present value but shall be payable in full; and
(ii) The Additional Amount shall be reduced to its
present value as of the date on which the
Acceleration Event occurs using an interest rate of
eight and one-half percent (8 1/2%) in determining
such present value.
4. Unless expressly amended herein, all other provisions in the
Xxxxxx Agreement are hereby ratified and confirmed in all respects and shall
continue in full force and effect.
5. This Amendment contains the entire agreement and understanding
between the parties respecting the subject matter hereof and supersedes all
prior and collateral agreements and understandings, regardless of form or
nature, between the parties respecting that subject matter. No extension,
amendment, modification, or supplement to this Amendment will be effective
unless made in writing signed by the parties hereto. This Amendment will be
binding on and inure to the benefit of the parties hereto and their respective
successors and assigns. This Amendment may be executed in multiple counterparts,
each of which will constitute an original, but all of which together will
constitute one and the same agreement. The validity, construction, and
enforcement of this Amendment and all matters related thereto or in connection
therewith will be governed by the laws of the State of Georgia.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the date first set forth above.
ATTEST: HORIZON ACQUISITION CORP.
By:
------------------------------------ --------------------------
Title: Title:
------------------------------ -----------------------
------------------------------------ -----------------------------
Witness Xxxxxx X. Xxxxxx, XX
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EXHIBIT "D"
AMENDMENT TO NON-COMPETITION
AND CONSULTING AGREEMENT
THIS AMENDMENT, entered into as of ______________ 1997, by and
between HORIZON ACQUISITION CORP., a Georgia corporation ("HAC"), and XXXXXXX X.
XXXXX, as Trustee of the Xxxxx Family Trust ("Xxxxx");
WHEREAS, HAC and Xxxxx have entered into that certain
Non-Competition and Consulting Agreement dated October 24, 1995 ("Xxxxx
Agreement");
WHEREAS, the parties desire to amend the Xxxxx Agreement in the
manner hereinafter provided;
NOW, THEREFORE, in consideration for the agreements contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. The payment schedule under the Xxxxx Agreement, as described in
paragraph 4 thereof and in Schedule A thereto, is hereby revised, amended, and
restated as follows:
All of the payments payable to Xxxxx during 1997 under paragraph
4(a) and Schedule A for non-competition covenants, totaling the
sum of $49,936.92, shall not be payable during 1997, but shall
be payable in full to Xxxxx on October 31, 2002. All of the
payments payable to Xxxxx during 1997 under paragraph 4(b) and
Schedule A for consulting services, totaling the sum of
$16,645.68, shall not be payable during 1997, but shall be
payable in full to Xxxxx on October 31, 2002. All of the
payments during 1998, 1999, 2000, 2001, and 2002 under Schedule
A shall continue to be paid in accordance with Schedule A. In
addition to the amounts now payable to Xxxxx on October 31, 2002
for non-competition covenants and for consulting services, the
additional amount of $22,470.14 for non-competition covenants
under paragraph 4(a) and Schedule A and $7,490.14 for consulting
services under paragraph 4(b) and Schedule A shall be payable in
full to Xxxxx on October 31, 2002.
The payment of the debt evidenced hereby is subordinated to all debts of the
Maker to Sirrom Capital Corporation as set forth in a Subordination Agreement
dated October 24, 1995.
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2. Section 4(c) of the Xxxxx Agreement shall be deleted in its
entirety.
3. The following provision shall be added to the Xxxxx
Agreement as paragraph 4(h):
(h) The cumulative amount of $66,582.60 (the
"Deferred Amount") that was originally payable under
Sections 4(a) and 4(b) and Schedule A hereto during 1997
has been deferred and is now payable in full on October
31, 2002. In addition to all other amounts now payable on
October 31, 2002 under Sections 4(a) and 4(b) and Schedule
A hereto, the additional cumulative amount of $29,961.00
(the "Additional Amount") is now payable in full on October
31, 2002 as provided above. In determining the "Final
Payoff Amount" (as defined in this paragraph 4) in the
event an Acceleration Event (as defined in this paragraph
4) occurs:
(i) The Deferred Amount shall not be
discounted to its present value but shall
be payable in full; and
(ii) The Additional Amount shall be reduced to
its present value as of the date on which
the Acceleration Event occurs using an
interest rate of eight and one-half percent
(8 1/2%) in determining such present value.
4. Unless expressly amended herein, all other provisions in the Xxxxx
Agreement are hereby ratified and confirmed in all respects and shall continue
in full force and effect.
5. This Amendment contains the entire agreement and understanding
between the parties respecting the subject matter hereof and supersedes all
prior and collateral agreements and understandings, regardless of form or
nature, between the parties respecting that subject matter. No extension,
amendment, modification, or supplement to this Amendment will be effective
unless made in writing signed by the parties hereto. This Amendment will be
binding on and inure to the benefit of the parties hereto and their respective
successors and assigns. This Amendment may be executed in multiple counterparts,
each of which will constitute an original, but all of which together will
constitute one and the same agreement. The validity, construction, and
enforcement of this Amendment and all matters related thereto or in connection
therewith will be governed by the laws of the State of Georgia.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the date first set forth above.
ATTEST: HORIZON ACQUISITION CORP.
By:
-------------------------------- --------------------------------
Title: Title:
-------------------------- -----------------------------
-------------------------------- -----------------------------------
Witness Xxxxxxx X. Xxxxx, as Trustee of the
Xxxxx Family Trust
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EXHIBIT "E"
AMENDMENT TO NON-COMPETITION
AND CONSULTING AGREEMENT
THIS AMENDMENT, entered into as of ______________, 1997, by and between
HORIZON ACQUISITION CORP., a Georgia corporation ("HAC"), and XXXXX X.
XXXXXXXXXXX ("Bronnenkant");
WHEREAS, HAC and Bronnenkant have entered into that certain
Non-Competition and Consulting Agreement dated October 24, 1995 ("Bronnenkant
Agreement");
WHEREAS, the parties desire to amend the Bronnenkant Agreement in the
manner hereinafter provided;
NOW, THEREFORE, in consideration for the agreements contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. The payment schedule under the Bronnenkant Agreement, as described
in paragraph 4 thereof and in Schedule A thereto, is hereby revised, amended,
and restated as follows:
All of the payments payable to Bronnenkant during 1997 under
paragraph 4(a) and Schedule A for non-competition covenants,
totaling the sum of $16,286.04, shall not be payable during 1997,
but shall be payable in full to Bronnenkant on October 31, 2002. All
of the payments payable to Bronnenkant during 1997 under paragraph
4(b) and Schedule A for consulting services, totaling the sum of
$5,428.56, shall not be payable during 1997, but shall be payable in
full to Bronnenkant on October 31, 2002. All of the payments during
1998, 1999, 2000, 2001, and 2002 under Schedule A shall continue to
be paid in accordance with Schedule A. In addition to the amounts
now payable to Bronnenkant on October 31, 2002 for non-competition
covenants and for consulting services, the additional amount of
$7,331.25 for non-competition covenants under paragraph 4(a) and
Schedule A and $2,443.75 for consulting services
The payment of the debt evidenced hereby is subordinated to all debts of the
Maker to Sirrom Capital Corporation as set forth in a Subordination Agreement
dated October 24, 1995.
20
under paragraph 4(b) and Schedule A shall be payable in
full to Bronnenkant on October 31, 2002.
2. Section 4(c) of the Bronnenkant Agreement shall be deleted in its entirety.
3. The following provision shall be added to the Bronnenkant Agreement as
paragraph 4(h):
(h) The cumulative amount of $21,714.60 (the
"Deferred Amount") that was originally payable under
Sections 4(a) and 4(b) and Schedule A hereto during 1997
has been deferred and is now payable in full on October
31, 2002. In addition to all other amounts now payable on
October 31, 2002 under Sections 4(a) and 4(b) and Schedule
A hereto, the additional cumulative amount of $9,775.00
(the "Additional Amount") is now payable in full on October
31, 2002 as provided above. In determining the "Final
Payoff Amount" (as defined in this paragraph 4) in the
event an Acceleration Event (as defined in this paragraph
4) occurs:
(i) The Deferred Amount shall not be discounted to its
present value but shall be payable in full; and
(ii) The Additional Amount shall be reduced to its present
value as of the date on which the Acceleration Event
occurs using an interest rate of eight and one-half
percent (8 1/2%) in determining such present value.
4. Unless expressly amended herein, all other provisions in the
Bronnenkant Agreement are hereby ratified and confirmed in all respects and
shall continue in full force and effect.
5. This Amendment contains the entire agreement and understanding
between the parties respecting the subject matter hereof and supersedes all
prior and collateral agreements and understandings, regardless of form or
nature, between the parties respecting that subject matter. No extension,
amendment, modification, or supplement to this Amendment will be effective
unless made in writing signed by the parties hereto. This Amendment will be
binding on and inure to the benefit of the parties hereto and their respective
successors and assigns. This Amendment may be executed in multiple counterparts,
each of which will constitute an original, but all of which together will
constitute one and the same agreement. The validity, construction, and
enforcement of this Amendment and all matters related thereto or in connection
therewith will be governed by the laws of the State of Georgia.
21
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment as of
the date first set forth above.
ATTEST: HORIZON ACQUISITION CORP.
By:
-------------------------------- ----------------------------
Title: Title:
-------------------------- -------------------------
-------------------------------- -------------------------------
Witness Xxxxx X. Xxxxxxxxxxx
22
EXHIBIT "F"
AMENDMENT TO SECURITY AGREEMENT
THIS AMENDMENT, entered into as of ______________ 1997, by and among
HORIZON ACQUISITION CORP., a Georgia corporation ("HAC"); NEOSTAR HOLDING, INC.,
a Delaware corporation and successor in interest through merger to Neostar
Medical Technologies, Inc., a Delaware corporation, ("Neostar"); XXXXXX X. XXXX
("Pike"); XXXXXX X. XXXXXX, XX ("Xxxxxx"); XXXXXXX X. XXXXX, as Trustee of the
Xxxxx Family Trust ("Xxxxx"); and XXXXX X.
XXXXXXXXXXX ("Bronnenkant");
WHEREAS, the parties are parties to that certain Security Agreement
dated October 24, 1995 ("Security Agreement");
WHEREAS, the parties desire to amend the Security Agreement in the
manner hereinafter provided;
NOW, THEREFORE, in consideration for the agreements contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Section 2 of the Security Agreement is hereby amended by amending
and restating such Section 2 in its entirety as follows:
2. Indebtedness Secured. The Security Interest
granted by Debtor secures payment of any and all
indebtedness and liabilities of Debtor to the Secured Party
pursuant the Purchase Price Note and the Non-Competition
Agreements, as may be amended from time to time by the
parties thereto (the "Indebtedness").
2. Unless expressly amended herein, all other provisions in the
Security Agreement are hereby ratified and confirmed in all respects and shall
continue in full force and effect.
3. The Collateral described in the Security Agreement is located at
HAC's offices at Xxx Xxxxxxx Xxx, Xxxxxxxxxx, Xxxxxxx 00000.
4. This Amendment contains the entire agreement and understanding
between the parties respecting the subject matter hereof and supersedes all
prior and collateral agreements and understandings, regardless of form or
nature, between the parties respecting that subject matter. No extension,
amendment, modification, or supplement to this Amendment will be effective
unless made in writing signed by the parties hereto. This Amendment will be
binding on and inure to the benefit to the parties hereto and their respective
successors and assigns. This Amendment may be executed in multiple counterparts,
each of which will constitute an original, but all of which together will
constitute one and the same agreement. The validity, construction, and
enforcement
23
of this Amendment and all matters related thereto or in connection therewith
will be governed by the laws of the State of Georgia.
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment
as of the date first set from above.
ATTEST: HORIZON ACQUISITION CORP.
By:
------------------------------ --------------------------------
Title: Title:
------------------------ -----------------------------
ATTEST: NEOSTAR HOLDING, INC.
By:
------------------------------ --------------------------------
Title: Title:
------------------------ -----------------------------
------------------------------ -----------------------------------
Witness Xxxxxx X. Xxxx
------------------------------ -----------------------------------
Witness Xxxxxx X. Xxxxxx, XX
------------------------------ -----------------------------------
Witness Xxxxxxx X. Xxxxx, as Trustee of the
Xxxxx Family Trust
------------------------------ -----------------------------------
Witness Xxxxx X. Xxxxxxxxxxx
