AGREEMENT REGARING THE PURCHASE PRICE
ADJUSTMENT, BONUS AND ADDITONAL CONSIDERATION
This AGREEMENT REGARDING THE PURCHASE PRICE ADJUSTMENT, BONUS AND
ADDITONAL CONSIDERATION (this "Agreement") made and dated as of February 28,
1997 is executed by and among Jotan, Inc. ("Jotan"), SHC Acquisition Corp.
("Acquisition"). Xxxxxx X. Xxxxxxxxxxx ("Xxxxxxxxxxx"), Xxxx X. Xxxxxxx, Xx.
("Xxxxxxx") and Xxxxxxx X. Xxxxxxx, III ("Xxxxxxx") (Xxxxxxxxxxx, Xxxxxxx and
Xxxxxxx collectively, the "Shareholders") and Southland Holding Company (the
"Company") begin all the parties to the Share Purchase Agreement entered into
on December 19, 1996 (the "Purchase Agreement"). Acquisition is the assignee
of Jotan's rights and obligations under the Purchase Agreement pursuant to the
certain Assignment of Rights Under Share Purchase Agreement of even date
herewith.
1. Section 1.04 of the Purchase Agreement provides the Interim Financial
Statements (as defined therein) will be prepared and used to calculate (i)
the amount of the Dividend Payment referred to in Section 1.04(a) of the
Purchase Agreement (the "Dividend") and (ii) the amount of the Purchase Price
adjustment described in Section 1.03 of the Purchase Agreement. Each of the
undersigned hereby agrees that the Company will not declare a dividend and all
references to the Dividend Payment and the last two sentences of section
1.04(a) shall be deemed to be deleted. The parties also agree that the
Purchase Price adjustment shall be calculated based on the Closing date
Financial Statements prepared in accordance with Section 1.04 shall be
determined and paid within ten (10) days after (i) the delivery of the Closing
Date Financial Statements as provided in Section 1.04 or (ii) the resolution
of and Objection thereto, if any, and that no Interim Financial Statements
will be prepared. All references to the Interim Financial Statements in
Section 1.03 shall be deemed to be replaced with a reference to the Closing
Date Financial Statements.
2. Sections 4.01(f) and 4.01(g) of the Purchase Agreement shall be deemed
to be deleted and the parties agree that the Company will not declare a
dividend to its Shareholders prior to the Closing.
3. The parties agree that the Company will authorize and declare a bonus in
the aggregate amount of $600,000 ($200,000 per Shareholder) (the "Bonus"),
which the parties agree shall be paid to the Shareholders by the Company as
soon as practical after the company completes the Closing Date Financial
Statements.
4. Each of the undersigned hereby waives any and all rights he or it may
have under the Purchase Agreement to receive (i) the Interim Financial
Statements, (ii) the Dividend Payment and (iii) the Purchase Price adjustment
that was to have been based on the Interim Financial Statements and paid on or
prior to the Closing Date, provided that the Shareholders in no respect waive
Purchaser's obligation to pay, and their right to receive, (A) the Purchase
Price adjustment that is based on the Aggregate Acquisition Amount of the
Minority Interests and (B) the additional consideration to be paid pursuant to
paragraph 5 of this Agreement. The parties agree that the Purchase Price
adjustment, that additional consideration and the Bonus will be paid as soon
as practicable after the Company completes the Closing Date Financial
Statements subject to Section 1.04(b) and the last sentence of Section
1.04(c).
5. The parties hereto agree and confirm that as soon as practicable after
receiving the Closing Date Financial Statements, the Company shall pay to
Messrs. Gegenheimer, Sanders, and Xxxxxxx additional consideration in an
amount to each equal to such Shareholder's pro rata portion of the earnings of
the company computed after Taxes and after deduction for earnings attributable
to the Minority Interests for the period from May 31, 1996 through the Closing
Date as set forth on the Closing Date Financial Statements, assuming that
there have been no changes in the assets or liabilities set forth on the
balance sheet included in the Closing Date Financial Statements from the
assets and liabilities set forth on the Balance Sheet, other than changes in
the ordinary course of business and consistent with past practice.
6. The parties agree that unless expressly and explicitly otherwise stated
in the Other Agreements, (i) the obligations, convenants and agreements of the
Shareholders under any such Other Agreement shall be the obligations,
convenants and agreements of the applicable party or parties severally (and
not jointly and severally) and (ii) the indemnification obligation of the
Agreements shall be limited so that the Shareholders shall severally (and not
jointly and severally) indemnify any of the Persons specified in Section 5.02
with respect to any Loss related to or arising from any breach of any covenant
or agreement made or to be performed pursuant to any Other Agreement.
7. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, and it shall not be necessary in making
proof of this Agreement or the terms hereof to produce or account for more
than one of such counterparts provided that the counterpart bears the
signature of the party sought to be bound.
8. This Agreement shall be deemed to have been made and shall be construed
and interpreted in accordance with the laws of the State of Texas, without
regard to laws regarding choice or conflicts of laws.
9. Capitalized terms used in this Agreement and not defined have the
meaning ascribed to them in the Purchase Agreement.
(signatures on next page)
IN WITNESS WHEREOF, each of the undersigned have caused this Amendment
to be executed under seal effective as of this 28th day of February, 1997.
PURCHASER:
Attest: JOTAN, INC.
_________________________________ By: ___________________________________
Its: _______________________ Title: ________________________________
[CORPORATE SEAL]
ACQUISITION:
Attest: SHC ACQUISITION CORP.
_________________________________ By: ___________________________________
Its: _______________________ Title: ________________________________
[CORPORATE SEAL]
THE COMPANY:
Attest: SOUTHLAND HOLDING COMPANY
_________________________________ By: ___________________________________
Its: _______________________ Title: _________________________________
[CORPORATE SEAL]
THE SHAREHOLDERS:
__________________________ (SEAL)
XXXXXX X. GENGENHEIMER
__________________________ (SEAL)
XXXX X. XXXXXXX, XX.
__________________________ (SEAL)
XXXXXXX X. XXXXXXX, III
AGREEMENT REGARDING OTHER CONSIDERATION
This AGREEMENT REGARDING OTHER CONSIDERATION ("Agreement") made and
dated as of February 28, 1997 is executed by and among Jotan, Inc. ("Jotan"),
SHC Acquisition Corp. ("Acquisition"), Xxxx X. Xxxxxxx, Xx. ("Xxxxxxx") and
Southland Holding Company (the "Company");
Whereas, Jotan, Acquisition, Xxxxxxx, the Company, Xxxxxx X. Xxxxxxxxxxx
and Xxxxxxx X. Xxxxxxx, III are all the parties to that certain Share Purchase
Agreement entered into on December 19, 1996 (the "Purchase Agreement");
Whereas, Acquisition is the assignee of Jotan's rights and obligations
under the Purchase Agreement pursuant to that certain Assignment of Rights
Under Share Purchase agreement of even date herewith; and
Whereas, all the parties to the Purchase Agreement have entered into
that certain Agreement Regarding the Purchase Price Adjustment, Bonus and
Additional Consideration of even date herewith (the "Additional Consideration
Agreement");
Now Therefore, for and in consideration of Ten Dollars ($10) and for
other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties hereto, the parties hereby agree as follows:
1. The parties hereto agree and confirm that as soon as practicable after
receiving the Closing Date Financial Statements (as such term is referred to
in the Additional Consideration Agreement), the Company shall pay to all of
the third-part minority shareholders of each its subsidiaries an amount to
each equal to their pro rata share of the earnings of the respective
subsidiary computed after Taxes (as applicable to such subsidiary) in
accordance with each such third-party minority shareholder's ownership
percentage for the period from may 31, 1996 through the Closing date as set
forth on the Closing date Financial Statements, assuming that there have been
no changes in the assets or liabilities set forth on the respective balance
sheets included in the Closing Date Financial Statements from the assets and
liabilities set forth on the respective balance sheets of each respective
subsidiary of the Company, other than changes in the ordinary course of
business and consistent with past practice.
2. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, and it shall not be necessary in making
proof of this Agreement or the terms hereof to produce or account for more
than one of such counterparts provided that the counterpart bears the
signature of the party sought to be bound.
3. This Agreement shall be deemed to have been made and shall be construed
and interpreted in accordance with the laws of the State of Texas, without
regard to laws regarding choice or conflicts of laws.
4. Capitalized terms used in this Agreement and not defined have the
meaning ascribed to them in the Purchase Agreement.
IN WITMESS WHEREOF, each of the undersigned have caused this Agreement
to be executed under seal effective as of this 28th day of February, 1997.
PURCHASER:
Attest: JOTAN, INC.
_________________________________ By: __________________________________
Its: _______________________ Title: ________________________________
[CORPORATE SEAL]
ACQUISITION:
Attest: SHC ACQUISITION CORP.
_________________________________ By:___________________________________
Its: _______________________ Title:_________________________________
[CORPORATE SEAL]
THE COMPANY:
Attest: SOUTHLAND HOLDING COMPANY
__________________________________ By:___________________________________
Its: ________________________ Title:________________________________
[CORPORATE SEAL]
XXXXXXX:
__________________________ (SEAL)
XXXX X. XXXXXXX, XX.
