EXHIBIT 10.34
SECOND AMENDMENT TO PURCHASE AGREEMENT
THIS IS A SECOND AMENDMENT TO PURCHASE AGREEMENT (the "Amendment")
dated as of December 27, 1996 by and among CHS Electronics, Inc., a Florida
corporation ("Buyer"), and Merisel, Inc., a Delaware corporation ("Merisel"),
and Merisel Europe, Inc., a Delaware corporation ("Europe"). Merisel and Europe
are collectively referred to herein as the "Sellers." All capitalized terms
without definition used in this Amendment shall retain their respective meanings
as specified in the Purchase Agreement (as defined hereafter).
BACKGROUND
Pursuant to the Purchase Agreement (the "Purchase Agreement") dated
August 29, 1996 by and among the Buyer and the Sellers, the Buyer agreed to
purchase and the Sellers agreed to sell the Europe Stock, the Latin America
Stock and the Mexico Stock and the Europe Assets on the terms and subject to the
conditions set forth in such Purchase Agreement. The Purchase Agreement was
amended by a First Amendment to Purchase Agreement dated as of October 4, 1996
(the "First Amendment"). The Buyer and the Sellers have deemed it advisable to
further amend certain terms of the Purchase Agreement, as amended by the First
Amendment, subject to the terms and conditions of this Second Amendment.
TERMS
In consideration of the mutual covenants contained herein and intending
to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I.
1.1. AMENDMENT TO SECTIONS 1.2(C)(I) AND (C)(II). Sections 1.2(c)(i) and
(c)(ii) of the Purchase Agreement are hereby amended in their entirety as
follows:
(c) REGARDING THE CLOSING BALANCE SHEETS. (i) Promptly after the
Closing Date, but in any event no later than 60 days after the Closing Date,
Europe shall prepare and deliver to Buyer, or cause to be prepared and delivered
to Buyer, a combining balance sheet of the European Subsidiaries and Europe
Assets as of the close of business on the Closing Date (the "Europe Closing
Balance Sheet"), together with the draft audit report of Deloitte & Touche, LLP
thereon. The Europe Closing Balance Sheet shall be prepared in accordance with
United States generally accepted accounting principles ("U.S. GAAP") applied
consistently with those U.S. GAAP principles applied in the preparation of the
1995 Balance Sheets (as defined in SECTION 2.7) (such accounting principles
being, the "Accounting Principles"), except that the accounts receivable and
inventory on the Europe Closing Balance Sheet will be valued utilizing the
adjustments listed in Exhibit A. In addition, the combining closing balance
sheet will convert foreign currencies to U.S. dollars at the closing exchange
rate published in the Wall Street Journal as of the Closing Date, and the Europe
Closing Balance Sheet will be prior to the application of purchase accounting
and recordation of the transactions contemplated in the Agreement. MIFINCO,
Inc.'s
investment in shares of Merisel France, Inc. and Mexico will be valued at zero
for the combining Closing Balance Sheet. The report of Deloitte & Touche, LLP
shall state (without qualification as to scope of audit or other matters) that
in their opinion the Europe Closing Balance Sheet presents fairly in all
material respects, the net assets of Europe sold as of the Closing Date, on the
basis of accounting defined in this Agreement and Exhibit A. The Europe Closing
Balance Sheet shall be subject to the review of Xxxxx Xxxxxxxx L.L.P. The
parties shall allow and cause the European Subsidiaries to allow the parties,
Xxxxx Xxxxxxxx, L.L.P. and other representatives of the parties full and
complete access to all work papers, books and records and all additional
information used in preparing the Europe Closing Balance Sheet and will make
their and the European Subsidiaries' officers and employees reasonably available
to discuss with the parties and their representatives such papers, books,
records and information. Buyer and its representatives shall be provided
complete access to all work papers and other information used by Deloitte &
Touche, LLP in examining the Europe Closing Balance Sheet which are not
proprietary to Deloitte & Touche, LLP and Sellers and their representatives
shall be provided complete access to all work papers and other information used
by Xxxxx Xxxxxxxx, L.L.P. in reviewing the Europe Closing Balance Sheet which
are not proprietary to Xxxxx Xxxxxxxx, LLP. Buyer has notified Sellers of its
disagreement with the draft Europe Closing Balance Sheet. If such disagreement
cannot be resolved by Buyer and Europe (each of which shall use their
"reasonable efforts" to so resolve the claim) prior to January 31, 1997, the
items in dispute shall be submitted to a nationally recognized firm of
independent auditors acceptable to both Buyer and Europe (or, in the absence of
agreement, the auditing firm of KPMG Peat Marwick L.L.P.) (the "Resolution
Accountants"). The sole function of the Resolution Accountants shall be to
select as most accurately reflecting the Europe Closing Balance Sheet, without
adjustment or alteration, the Europe Closing Balance Sheet submitted by Buyer or
the Europe Closing Balance Sheet submitted by Europe as the true Europe Closing
Balance Sheet, and the determination by such independent auditing firm shall be
binding and conclusive upon the parties. If the Resolution Accountants select
the Europe Closing Balance Sheet submitted by Buyer, Europe shall pay the fees
and expenses of the Resolution Accountants; if the Resolution Accountants select
the Europe Closing Balance Sheet submitted by Europe, Buyer shall pay the fees
and expenses of the Resolution Accountants. Europe shall pay the cost of the
fees and expenses of Deloitte & Touche, L.L.P. and Buyer shall pay the cost of
the fees and expenses of Xxxxx Xxxxxxxx L.L.P. There shall be no adjustment to
the Purchase Price unless and until such adjustment exceeds $250,000 and only to
the extent of that excess of $250,000.
(ii) Promptly after the Closing Date, but in any event no
later than 60 days after the Closing Date, Merisel shall prepare and deliver to
Buyer, or cause to be prepared and delivered to Buyer, a combining balance sheet
of Latin America and Mexico (the "Latin/Mexico Closing Balance Sheet") as of the
close of business on the Closing Date, together with the draft audit report of
Deloitte & Touche, LLP thereon. The Latin/Mexico Closing Balance Sheet shall be
prepared in accordance with U.S. GAAP applied consistently with those U.S. GAAP
principles applied in the preparation of the 1995 Balance Sheets, except that
the Latin/Mexico Closing Balance Sheet will convert Mexican pesos to U.S.
dollars at the closing exchange rate published in the Wall Street Journal as of
the Closing Date and the Latin/Mexico Closing Balance Sheet will be prior to the
application of purchase accounting and recordation of the transactions
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contemplated in this Agreement (the "Latin American Accounting Principles"). The
report of Deloitte & Touche, L.L.P. shall state (without qualification as to
scope of audit or other matters) that in their opinion the Latin/Mexico Closing
Balance Sheet presents fairly in all material respects, the net assets of Mexico
and Latin America sold as of the Closing Date, on the basis of the Latin
American Accounting Principles defined in this Agreement. The parties shall
allow and cause Latin America and Mexico to allow the parties, Xxxxx Xxxxxxxx,
L.L.P. and other representatives of the parties, full and complete access to all
work papers, books and records and all additional information used in preparing
the Latin/Mexico Closing Balance Sheet and will make their and will use their
reasonable efforts to make Latin America's and Mexico's officers and employees
available to discuss with the parties and their representatives such papers,
books, records and information. Buyer and all its representatives shall be
provided complete access to all work papers and other information used by
Deloitte & Touche, LLP in auditing the Latin/Mexico Closing Balance Sheet which
are not proprietary to Deloitte & Touche LLP and Sellers and their
representatives should be provided complete access to all work papers and other
information used by Xxxxx Xxxxxxxx L.L.P. in reviewing the Latin/Mexico Closing
Balance Sheet which are not proprietary to Xxxxx Xxxxxxxx L.L.P. Buyer has
notified Merisel of its disagreement with the draft Latin/Mexico Closing Balance
Sheet. If such disagreement cannot be resolved by Buyer and Merisel (each of
which shall use their "reasonable efforts" to so resolve the claim) prior to
January 31, 1997, the items in dispute shall be submitted to the Resolution
Accountants. The sole function of the Resolution Accountants shall be to select
as most accurately reflecting the Latin/Mexico Closing Balance Sheet, without
adjustment or alteration, the Latin/Mexico Closing Balance Sheet submitted by
Buyer to the Resolution Accountants, which closing balance sheet reflects the
results of any previous discussions between the parties or the Latin/Mexico
Closing Balance Sheet submitted by Merisel to the Resolution Accountants, which
closing balance sheet reflects the results of any previous discussions between
the parties as the true Latin/Mexico Closing Balance Sheet, and the
determination by such independent auditing firm shall be binding and conclusive
upon the parties. If the Resolution Accountants select the Latin/Mexico Closing
Balance Sheet submitted by Buyer, Merisel shall pay the fees and expenses of the
Resolution Accountants; if the Resolution Accountants select the Latin/Mexico
Closing Balance Sheet submitted by Merisel, Buyer shall pay the fees and
expenses of the Resolution Accountants. Merisel shall pay the cost of the fees
and expenses of Deloitte & Touche, LLP and Buyer shall pay the cost of the fees
and expenses of Xxxxx Xxxxxxxx L.L.P.
ARTICLE II.
2.1 EFFECT OF AMENDMENT. Except as expressly provided in Article I of this
Amendment, nothing shall affect or be deemed to affect any provisions of the
Purchase Agreement, as amended by the First Amendment, and, except only to the
extent that they may be varied hereby, the Buyer and Sellers hereby ratify and
confirm all of their agreements and obligations contained in the Purchase
Agreement, as amended by the First Amendment and hereby.
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2.2 COUNTERPARTS. This Second Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but which together
shall constitute one and the same instrument.
2.3 GOVERNING LAW. This Second Amendment shall be governed by and construed in
accordance with the internal laws of the State of Florida without giving effect
to principles of conflicts of laws.
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IN WITNESS WHEREOF, the parties hereto have executed or caused this
Amendment to be executed by their duly authorized representatives as of the day
and year first above written.
CHS ELECTRONICS, INC.
By: /S/ XXXXXXX XXXXXX
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Xxxxxxx Xxxxxx, Chief Executive Officer
MERISEL, INC.
By: /S/ XXXXXX XXXXXXXXXX
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Xxxxxx Xxxxxxxxxx, Chief Executive Officer
MERISEL EUROPE, INC.
By: /S/ XXXXXX XXXXXXXXXX
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Xxxxxx Xxxxxxxxxx, Chief Executive Officer
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