EXHIBIT 4.4
SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT
This SECOND AMENDMENT to the Stock Purchase Agreement dated as of December
21, 2000, by and among DELTA GALIL INDUSTRIES LTD., a company organized under
the laws of the State of Israel ("DELTA"), WUNDIES INDUSTRIES, INC., a Delaware
corporation and a wholly owned subsidiary of Delta ("PURCHASER"), INNER SECRETS
INC., a New Jersey corporation (the "COMPANY") and XXXXXX XXXXX, XXXXXXX XXXXXX,
XXXXX XXXXXXXXXX and XXXX XXXXXXXXXX (each, an "INDIVIDUAL SHAREHOLDER" and
together, the "SELLING SHAREHOLDERS"), as amended by the First Amendment to the
Agreement dated as of January 5, 2001 (the "AGREEMENT").
WHEREAS, the closing of the transaction contemplated by the Agreement took
place on January 5, 2001 (the "CLOSING"); and
WHEREAS, the Agreement provided for certain post-Closing payments from
Purchaser to the Selling Shareholders; and
WHEREAS, the parties desire to further amend the Agreement to reflect the
parties' understandings with respect to such payments;
NOW, THEREFORE, the parties hereby agree as follows:
1. The term "EBITDA" shall mean earnings before interest, income taxes,
depreciation and amortization, as determined in accordance with US
generally accepted accounting principles and as reflected on the financial
statements of Delta Galil USA Inc., a Delaware corporation into which
Purchaser and the Company were merged ("DELTA USA").
2. Section 1.3 shall be deleted in is entirety and replaced with the
following:
1.3 ADJUSTMENT OF PURCHASE PRICE
(a) The Parties hereby agree that the Company's EBITDA for the fiscal year
ending December 31, 2000 was $13.4 million. Purchaser shall pay the
Selling Shareholders an aggregate adjustment to the Preliminary
Purchase Price of $1.6 million (equal to the difference between $13.4
million and the assumed EBITDA of the Company at Closing of $13
million, multiplied by four (4)), plus interest of $203,000.
(b) In addition, the Purchaser shall pay the Selling Shareholders
collectively an additional $200,000 pursuant to Section 1.3(b) of the
Agreement in respect of net collection of customers' receivables
received by the Company by January 8, 2001.
(c) Any amounts will be paid to the Selling Shareholders pro rata in
accordance with their former shareholdings in the Company.
3. Section 1.7(a) shall be deleted in its entirety and replaced with the
following:
(a) The Selling Shareholders collectively shall be entitled to a performance
payment (the "PERFORMANCE PAYMENT") to the extent that EBITDA of Delta USA
("DELTA USA EBITDA") meets the targets set forth in the table below.
IF DELTA USA EBITDA FOR 2003 IS: THEN THE PERFORMANCE PAYMENT WILL BE:
Less than $20 million No Performance Payment
Greater than $20 million and up to $21 million $1,675,000
Greater than $21 million and up to $22 million $3,350,000
Greater than $22 million and up to $23 million $5,025,000
Greater than $23 million $6,700,000
4. Section 1.7(c), (d), (e) and (f) are deleted in their entirety.
5. The following shall be added as a new section 1.7(c):
(c) If the Performance Payment for 2003 is less than $6,700,000, the
Selling Shareholders may be entitled to up to the remainder of the
$6,700,000 not paid for 2003 if Delta USA EBITDA for fiscal year 2004
meets the targets set forth in the tables below:
(i) If 2003 Delta USA EBITDA was less than $20 million, then the
Performance Payment for 2004 will be as follows:
IF DELTA USA EBITDA FOR 2004 IS: THEN THE 2004 PERFORMANCE PAYMENT WILL BE:
Less than $20 million No Performance Payment
Greater than $20 million and up to $21 million $1,675,000
Greater than $21 million and up to $22 million $3,350,000
Greater than $22 million and up to $23 million $5,025,000
Greater than $23 million $6,700,000
(ii) If 2003 Delta USA EBITDA was $20 million to $21 million, then the
Performance Payment for 2004 will be as follows:
IF DELTA USA EBITDA FOR 2004 IS: THEN THE 2004 PERFORMANCE PAYMENT WILL BE:
Greater than $21 million and up to $22 million $1,675,000
Greater than $22 million and up to $23 million $3,350,000
Greater than $23 million $5,025,000
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(iii) If 2003 Delta USA EBITDA was $21 million to $22 million, then
Performance Payment for 2004 will be as follows:
IF DELTA USA EBITDA FOR 2004 IS: THEN THE 2004 PERFORMANCE PAYMENT WILL BE:
Greater than $22 million and up to $23 million $1,675,000
Greater than $23 million $3,350,000
(iv) If 2003 Delta USA EBITDA was $22 million to $23 million, then if Delta
USA EBITDA for 2004 is greater than $23 million, the Performance Payment for
2004 will be $1,675,000.
6. The parties hereby acknowledge that, other than the payments described
herein, neither Delta nor Purchaser shall have any other payment obligations to
the Selling Shareholders under the Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to
the Agreement to be duly executed as of this 23rd day of April, 2003.
DELTA GALIL INDUSTRIES LTD.
By: /s/ Xxxxxx Xxxxx
----------------
Name: Avirma Lahav
Title: CFO
DELTA GALIL USA, INC.
(as successor-in-interest to
Wundies Industries, Inc. and
Inner Secrets, Inc.)
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: VP Finance
INDIVIDUAL STOCKHOLDERS:
By: /s/ Xxxxxx Xxxxx
----------------
Name: Xxxxxx Xxxxx
By: /s/ Xxxxxxx Xxxxxx
------------------
Name: Xxxxxxx Xxxxxx
By: /s/ Xxxxx Xxxxxxxxxx
--------------------
Name: Xxxxx Xxxxxxxxxx
By: /s/ Xxxx Xxxxxxxxxx
-------------------
Name: Xxxx Xxxxxxxxxx
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