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EXHIBIT 10.34
FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT (this "Amendment") is
dated as of the 14th day of December 1999, by and among Horizon Medical
Products, Inc., a Georgia corporation, ("Purchaser"), Xxxxxx Corporation, a New
York corporation ("Xxxxxx"), and Xxxxxx Xxxxxxx, Xxxxxx Xxxxx and Xxxxxxxxx
Xxxxx (collectively, the "Xxxxxx Shareholders").
WITNESSETH:
WHEREAS, Purchaser, Xxxxxx and the Xxxxxx Shareholders are parties to
that certain Stock Purchase Agreement, dated as of, and effective as of October
15, 1998 (the "Stock Purchase Agreement"); and
WHEREAS, Purchaser, Xxxxxx and the Xxxxxx Shareholders desire to amend
certain provisions of the Stock Purchase Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
promises and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Section 1.2(b) of the Stock Purchase Agreement is hereby
deleted and replaced in its entirety with the following:
"(b) $4,000,000, plus $450,834 as an acceleration of the
payment due pursuant to Section 1.3(d) hereof (the "First Anniversary
Payment"), payable within 60 days after the first anniversary of the
Closing Date (as defined in Section 6.1 hereof) (the "First Anniversary
Date"), and payable as follows:
(i) $2,400,000 payable on December 15, 1999
under the Standby Letters of Credit issued to the Xxxxxx
Shareholders and apportioned among Xxxxxx Shareholders as
follows:
Xxxxxx Xxxxxxx $2,112,000;
Xxxxxx Xxxxx $ 144,000;
Xxxxxxxxx Xxxxx $ 144,000.
Each Standby Letter of Credit shall be reduced by an amount
equal to the payment made pursuant to this Section 1.2(b)(i)
under such Standby Letter of Credit;
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(ii) $1,400,000 payable in cash on December 15,
1999 and apportioned among Xxxxxx Shareholders as follows:
Xxxxxx Xxxxxxx $980,000;
Xxxxxx Xxxxx $210,000;
Xxxxxxxxx Xxxxx $210,000; and
(iii) $650,834, plus $54,873.30 in interest due on
the First Anniversary Payment pursuant to Section 1.6, for a
total of $705,707.30, plus simple interest on the unpaid
balance of this amount which shall accrue at a rate equal to
11% per annum, based on a 365-day year and on actual days
elapsed, payable in installments as follows:
(A) $225,000 payable in installments of
$25,000 on each of December 15, 1999, December 22,
1999, December 29, 1999, January 5, 2000, January 12,
2000, January 19, 2000, January 26, 2000, February 2,
2000 and February 9, 2000, with each installment
apportioned among Xxxxxx Shareholders as follows:
Xxxxxx Xxxxxxx 70%;
Xxxxxx Xxxxx 15%;
Xxxxxxxxx Xxxxx 15%; and
(B) The remainder payable in weekly
installments of $50,000 each Wednesday beginning on
February 16, 2000 until all principal amounts plus
accrued interest have been paid, with each
installment apportioned among Xxxxxx Shareholders as
follows:
Xxxxxx Xxxxxxx 70%;
Xxxxxx Xxxxx 15%;
Xxxxxxxxx Xxxxx 15%.
Payments made under this Section 1.2(b)(iii) shall be applied
first to accrued interest and then to the remaining principal
balance."
2. Section 1.3(f) of the Stock Purchase Agreement is hereby
deleted and replaced in its entirety with the following:
"(f) Notwithstanding anything herein to the
contrary, any amounts payable on the Second or Third
Anniversary Date that are not being disputed pursuant to
Section 1.3(e) or subject to Offset (as hereinafter defined)
shall be paid within 60 days of the Second or Third
Anniversary Date, respectively."
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3. Section 1.6 of the Stock Purchase Agreement is hereby deleted
and replaced in its entirety with the following:
"Section 1.6 Interest. With respect to the Second Anniversary
Payment and the Third Anniversary Payment, Purchaser will pay interest
on the amount of each unpaid portion of each payment for the period
beginning on the day after the Second Anniversary Date and the Third
Anniversary Date, as applicable, and continuing through the date of
payment. Interest will be calculated as simple interest on a per annum
basis equal to the prime rate (Chase Manhattan Bank) less 1%. Any
interest payable hereunder shall be paid on the date of payment of the
applicable installment of the Purchase Price."
4. Section 1.8 of the Stock Purchase Agreement is hereby deleted
and replaced in its entirety with the following:
"Section 1.8 Apportionment of Purchase Price. The Purchase
Price shall be apportioned among Xxxxxx Shareholders in proportion to
each Xxxxxx Shareholder's ownership of Xxxxxx Stock as reflected on
Schedule 2.2(a) of the Xxxxxx Disclosure Letter (as hereinafter
defined), except for the First Anniversary Payment, which shall be
apportioned among Xxxxxx Shareholders as set forth in Section 1.2(b)."
5. Article 1 of the Stock Purchase Agreement is hereby amended by
adding the following Section 1.9 thereto:
"Section 1.9 Tax Accrual Reimbursement. On December 15, 1999,
Purchaser shall pay Xxxxxx Shareholders an amount equal to $27,266 as
reimbursement for the over-accrual of taxes due to New York City and to
the State of New York, as reflected on the Closing Balance Sheet, in
full settlement of such over-accrual amount. The parties agree that
such $27,266 payment shall be treated as an excess payment pursuant to
Section 1.3(d)(i) which will result first in a reduction in the amount
of the Third Anniversary Payment and thereafter a reduction in the
Second Anniversary Payment. The parties further agree that such payment
shall be apportioned among the Xxxxxx Shareholders as follows: Xxxxxx
Xxxxxxx (100%); Xxxxxx Xxxxx (0%); and Xxxxxxxxx Xxxxx (0%)."
6. This Amendment may be executed in counterparts, all of which
together shall constitute one in the same instrument.
7. Except as expressly amended hereby, the Stock Purchase
Agreement shall continue in full force and effect. This Amendment is limited as
written and should not be deemed to be a consent or waiver of any other term or
condition of the Stock Purchase Agreement.
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IN WITNESS WHEREOF, the parties have executed this First Amendment to
Stock Purchase Agreement to be duly executed, as of the date first above
written.
HORIZON MEDICAL PRODUCTS, INC.
By: /s/ XXXXXXX X. XXXXXXXX, XX.
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Xxxxxxx X. Xxxxxxxx, Xx.
President
XXXXXX CORPORATION
By: /s/ XXXXXX XXXXXXX
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Xxxxxx Xxxxxxx
President
XXXXXX SHAREHOLDERS
By: /s/ XXXXXX XXXXXXX
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Xxxxxx Xxxxxxx
By: /s/ XXXXXX XXXXX
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Xxxxxx Xxxxx
By: /s/ XXXXXXXXX XXXXX
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Xxxxxxxxx Xxxxx
