EXHIBIT 2.1
AMENDMENT TO
AGREEMENT OF PURCHASE AND SALE
THIS AMENDMENT made as of June 30, 1999 (this "Amendment") to that
certain Agreement of Purchase and Sale made as of the 29th day of August, 1997,
as amended, (the "Original Agreement") by and among Miss Xxxxx, Inc., a
Delaware corporation, Terbem Limited, a British Virgin Islands corporation,
Bobst Investment Corp., a British Virgin Islands corporation, TCRI Offshore
Partners C.V., a Netherlands Antilles corporation, TCR International Partners
L.P., a Delaware limited partnership, Triumph Capital II, L.P., a Delaware
limited partnership, Xxxxxx Xxxxxxx, Xxxxxx Xxxxxxxx, Xxxxxx Xxxxxxxxx,
Xxxxxxxxx Xxxxxxx, ME Acquisition Corp. (now known as Miss Xxxxx, Inc.), a
Delaware corporation, and Norton XxXxxxxxxx, Inc. (now known as XxXxxxxxxx
Apparel Group Inc.), a Delaware corporation. Capitalized terms used herein and
not otherwise herein, shall have the meanings assigned to such terms in the
Original Agreement.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the parties hereto are parties to the Original Agreement;
WHEREAS, the Company has been liquidated and in connection with such
liquidation the Company has assigned its rights under the Original Agreement to
a Liquidating Trust, established pursuant to an Agreement dated as of August 31,
1998, with Xxxxxxx X. Xxxxxx, as Trustee (the "Trust"), which assignment was
affected in accordance with the terms of Section 13.10 of the Original
Agreement, including without limitation, in accordance with the condition set
forth in such Section regarding Norton's right, which right has been exercised,
to require up to 50% of the portion of the Earn Out Payment payable to each of
the Management Stockholders and to Xxxxxx Xxxxxxxxx to be paid in shares of
Norton Common Stock;
WHEREAS, the Stockholders agree that the entitlement to the Earn Out
Payment on the Closing Date under the Original Agreement was as set forth on
Schedule I hereto;
WHEREAS, those Persons designated as Group A Stockholders
(collectively, the "Group A Stockholders") and the Group B Stockholder (the
"Group B Stockholder") on Schedule I hereto have determined to accept an early
and discounted pay out of the Earn Out Payment under the Original Agreement, all
in accordance with the terms and conditions of this Amendment, and all in
complete and full satisfaction of the Purchaser's and Norton's obligations under
the Original Agreement to make any Earn Out Payment to the Company (or the
Trust) in respect of the Group A Stockholders and the Group B Stockholder and/or
directly to the Group A Stockholders and the Group B Stockholder;
WHEREAS, the parties hereto agree that, but for this Amendment, the
aggregate percentage of the Earn Out Payment to which the Trust (as the
successor to the Company) would be entitled under the Original Agreement on
behalf of the Group A Stockholders and the Group B Stockholder is 64.338% and,
accordingly, that the aggregate percentage of the Earn Out Payment to which the
Trust (as the successor to the Company) will be entitled under the Original
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Agreement on behalf of the remaining Stockholders (after giving effect to this
Amendment) is 35.662%; and
WHEREAS, the parties hereto desire to amend the Original Agreement as
set forth herein.
NOW THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein and intending to be legally bound, the
parties hereto hereby agree as follows:
1. The parties hereto agree with and to the recitals set forth
herein.
2. Each of the Group A Stockholders agrees that upon payment by the
Purchaser of (i) $5,000,000, if paid after the date hereof and on or before the
close of business on August 6, 1999 or (ii) $5,250,000, if paid after the close
of business on August 6, 1999 and on or before the close of business on August
31, 1999, in either case, by bank wire transfer as set forth on Exhibit A
hereto, the Purchaser and Norton shall have fully and completely satisfied and
discharged any and all obligations under the Original Agreement to pay the Earn
Out Payment to the Company or the Trust (as the successor to the Company) in
respect of the Group A Stockholders (and each of them) and/or directly to the
Group A Stockholders (and each of them) under Section 2.02 of the Original
Agreement or otherwise.
3. The Group B Stockholder agrees that upon payment of $5,000,000 by
bank wire transfer as set forth on Exhibit B hereto, by the Purchaser, the
Purchaser and Norton shall have fully and completely satisfied and discharged
any and all obligations under the Original Agreement to pay the Earn Out Payment
to the Company or the Trust (as successor to the Company) in respect of the
Group B Stockholder and/or directly to the Group B Stockholder under Section
2.02 of the Original Agreement or otherwise.
4. The definition of "Earn Out Payment" set forth in Section 14.01 of
the Original Agreement is hereby amended to read in its entirety as follows:
"Earn Out Payment" shall mean an aggregate amount determined by
multiplying (1) 35.662% by (2) the amount by which (x) the product
of (a) four (4) multiplied by (b) the 1998/1999 EBITDA exceeds (y)
$24,000,000." The reference to "12%" in the definition of "Stock
Earn Out Cap" set forth in Section 14.01 of the Original Agreement
is hereby amended to be a reference to "2.822%."
5. The parties hereto agree that the Earn Out Payment (after giving
effect to the provisions set forth in Sections 1 through 5 of this Amendment)
payable under Section 2.02 of the Original Agreement shall be payable to the
Trust in accordance with the terms and conditions of Section 2.02 of the
Original Agreement and, upon such payment, the Purchaser and Norton shall have
fully and completely satisfied and discharged any and all obligations to pay the
Earn Out Payment under Section 2.02 of the Original Agreement or otherwise.
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6. The Stockholders Representative shall be Xxxxxx Xxxxxxx.
7. The parties hereto agree that the references to the term
"Stockholders" and "Management Stockholders" contained in Sections 11.01(a),
11.01(b) and 11.02 shall, on the date of the Effectiveness Notice (as defined
below), be deemed not to include the Group A Stockholders (or any of them), the
Group B Stockholder, or except with respect to Section 11.02(a), Xxxxxx Xxxxxxx,
Xxxxxx Xxxxxxxx or Xxxxxx Xxxxxxxxx.
8. Notwithstanding anything to the contrary contained herein, the
parties hereto understand and agree that the terms and provision of the
Amendment shall become effective only upon delivery to the Stockholders
Representative on or prior to August 31, 1999 of a notice (the "Effectiveness
Notice") from the Purchaser that the Purchaser and Norton have received consent
to this Amendment and the transactions contemplated hereby (in form and
substance satisfactory to the Purchaser and Norton in their sole discretion)
under (i) the Amended and Restated Financing Agreement dated as of June 18,
1998, as amended, by and among Norton XxXxxxxxxx, Inc., Norton XxXxxxxxxx of
Xxxxxx, Inc., Miss Xxxxx, Inc., JJ Acquisition Corp., the Financial Institutions
from time to time party thereto, NationsBanc Commercial Corporation, as
Collateral Agent, The CIT Group/Commercial Services, Inc., as Administrative
Agent, and Fleet Bank NA, as Documentation Agent, and (ii) the Indenture dated
as of June 18, 1998, as amended, providing for Norton's $125,000,000 12 1/2%
Senior Notes Due 2005, among Norton XxXxxxxxxx, Inc., the Subsidiary Guarantors
named therein, and United States Trust Company of New York, as Trustee. The
Purchaser shall make the payments contemplated by Sections 2 and 3 of this
Amendment on the first Business Day following the date of the Effectiveness
Notice. The Amendment shall terminate and have no force or effect if such
payments are not made on or before August 31, 1999.
9. Each of the Group A Stockholders and the Group B Stockholder shall
indemnify and hold harmless each of the Purchaser Indemnified Parties from and
against any and all Damages which are sustained or incurred by any of the
Purchaser Indemnified Parties in connection with or by reason of the failure by
any of them to comply with and abide by their respective covenants and
agreements set forth in this Amendment.
10. The validity of this Amendment and of any of its terms or
conditions, as well as the rights and duties of the parties under this
Amendment, shall be construed pursuant to and in accordance with the laws of the
State of New York without regard to conflict of laws principles.
11. This Amendment may be signed in counterparts, including by
telecopy, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same Amendment.
12. Nothing hereby expressed or implied is intended or shall be
construed to confer upon any Persons other than the parties hereto any rights or
remedies under or by reason of this Amendment.
* * *
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IN WITNESS WHEREOF, this Amendment has been duly executed by the parties
hereto as of the date first above written.
LIQUIDATING TRUST pursuant to an Agreement dated as of
August 31, 1998, Xxxxxxx X. Xxxxxx, as Trustee
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Trustee
ME ACQUISITION CORP.(now known as
as Miss Xxxxx, Inc.)
By: /s/ Xxxxx Xxxxxxxxx
---------------------
Name: Xxxxx Xxxxxxxxx
Title: Chief Executive Officer
NORTON XXXXXXXXXX, INC. (now known
as XxXxxxxxxx Apparel Group Inc.)
By: /s/ Xxxxx Xxxxxxxxx
---------------------
Name:
Title: Chief Executive Officer
TRIUMPH CAPITAL, X.X. XX
By Triumph Management, L.P., its general partner
By: Xxxxxxx X. Xxxxxx
-------------------
Name:
Title: General Partner
TERBEM LIMITED
By: Xxxxxxx X. Xxxxxx
-------------------
Name:
Title: Attorney-in-Fact
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BOBST INVESTMENT CORP.
By: Xxxxxxx X. Xxxxxx
-------------------------
Name:
Title: Attorney-in-Fact
TCRI OFFSHORE PARTNERS C.V.
By Three Cities Management Partners, L.P., its general
partner
By Three Cities Research, Inc., its general partner
By: Xxxxxxx X. Xxxxxx
-------------------------
Name:
Title: Partner
TCR INTERNATIONAL PARTNERS L.P.
By Three Cities Management Partners, L.P., its general
partner
By Three Cities Research, Inc., its general partner
By: Xxxxxxx X. Xxxxxx
-------------------------
Name:
Title: Partner
/s/ Xxxxxx Xxxxxxx
-------------------------
Xxxxxx Xxxxxxx
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/s/ Xxxxxx Xxxxxxxx
---------------------------
Xxxxxx Xxxxxxxx
/s/ Xxxxxx Xxxxxxxxx
---------------------------
Xxxxxx Xxxxxxxxx
/s/ Xxxxxxx X. Xxxxxx
---------------------------
Xxxxxxxxx Xxxxxxx
By Xxxxxxx X. Xxxxxx
Attorney-in-Fact
