AMENDMENT NO. 1 TO
AGREEMENT FOR PURCHASE AND SALE OF STOCK
THIS AMENDMENT NO. 1 TO AGREEMENT FOR PURCHASE AND SALE OF STOCK (this
"Amendment"), dated as of the 27th day of February, 1997, is made by and among
the individuals and entities listed on Schedule X attached hereto, being the
holders of all of the outstanding shares of stock of Winning Ways, Inc., a
Missouri corporation (the "Company"), all of said individuals and entities being
hereinafter collectively referred to as the "Sellers," GFSI HOLDINGS, INC., a
Delaware corporation ("Holdings"), and GFSI, INC., a Delaware corporation
("Acquisition").
W I T N E S S E T H:
WHEREAS, the parties to this Amendment are parties to an Agreement for
Purchase and Sale of Stock, dated January 24, 1997 (the "Agreement"), pursuant
to which Holdings and Acquisition have agreed to purchase, and the Sellers have
agreed to sell and transfer to Holdings and Acquisition, all of the capital
stock of the Company; and
WHEREAS, the parties hereto desire to amend and modify certain terms of the
Agreement as set forth in this Amendment;
NOW THEREFORE, in consideration of the premises and the covenants contained
herein, the parties hereto covenant and agree as follows:
1. Definitions. Unless defined in this Amendment, capitalized terms used in
this Amendment have the meaning given to such terms in the Agreement.
2. Definition of Prudential Premium. The following definition shall be
inserted between the definitions of "Net Worth Surplus" and "Sellers' Agents"
set forth in Section 1.2 of the Agreement:
"Prudential Premium" shall mean any "Prepayment Premium" amounts
actually paid to The Prudential Insurance Company of America or its
assignee at the Closing pursuant to the terms of that certain Promissory
Note executed by the Company on January 17, 1991 in the principal amount of
$9,900,000, as such premium ultimately may be agreed upon by The Prudential
Insurance Company of America and the Company prior to Closing.
3. Preliminary Purchase Price. Section 1.3 of the Agreement is deleted in
its entirety and the following language is inserted in lieu thereof:
1.3 Preliminary Purchase Price. Subject to the terms and conditions of
this Agreement and in reliance on the
covenants, representations and warranties of the Sellers herein contained
(including, without limitation, the sale, conveyance, transfer and delivery
of the Shares to Holdings and Acquisition), Acquisition and Holdings,
collectively, shall pay to the Sellers at the Closing an amount equal to
(x) $232,900,000 less (y) the Estimated Closing Debt, subject to adjustment
as of the Closing Date pursuant to Section 1.4 hereof, and less (z) the
amount of the Prudential Premium, to be paid as follows:
1.3.1 Holdings shall pay $94,000 to the Sellers by delivery of an
aggregate of 940 shares of Holdings' Series A Common Stock, par value $0.01
per share, in an exchange that is intended to qualify as a tax-free
exchange pursuant to the provisions of Section 351 of the Internal Revenue
Code of 1986, as amended (the "Code");
1.3.2 Holdings shall pay $12,690,000 to the Sellers by delivery of an
aggregate of 12,690 shares of Holdings' Series A Preferred Stock, par value
$0.01 per share, in an exchange that is intended to qualify as a tax-free
exchange pursuant to the provisions of Section 351 of the Code;
1.3.3 Subject to the provisions of the following sentence, Acquisition
shall pay to the Sellers' Agents, for the benefit of all of the Sellers, an
aggregate amount of $220,116,000 minus the amount of the Estimated Closing
Debt and minus the amount of the Prudential Premium, the resulting amount
of which is hereinafter referred to as the "Preliminary Cash Purchase
Price." Six hundred thousand dollars ($600,000) of the Preliminary Cash
Purchase Price shall be paid to the Escrow Agent for the benefit of the
Sellers, to be held pursuant to the terms of the Escrow Agreement and
distributed in accordance with the terms of Section 1.4. The balance of the
Preliminary Cash Purchase Price shall be paid to the Sellers' Agents, for
the benefit of the Sellers, by wire transfer of immediately available funds
to the account designated by the Sellers' Agents in writing to Acquisition
no less than two (2) days prior to the Closing.
1.3.4 The aggregate amount of the Closing Debt and the Prudential
Premium shall be paid by Acquisition to the respective creditors of the
Company at the Closing.
4. Post-Closing Adjustments. At such time as any amounts are to be paid to
Acquisition or the Sellers, as the case may be, pursuant to the terms of Section
1.4.8 of the Agreement, and in addition to any amounts to be paid pursuant to
such Section,
(i) if Wolff elects to exercise his option under Section 6.8 of the
Agreement to purchase the Company's
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interest in the Hawker 1000 owned by the Company (the "Aircraft"), Wolff
shall pay to the Company the amount of the book value of the Aircraft as
shown on the books and records of the Company as of the Closing Date in
consideration of the execution by the Company of an FAA Bill of Sale and
such other instruments as may be necessary to transfer title of the
Aircraft to Wolff,
(ii) if any of Wolff, Barry Golden, John Menghini or Robert Shaw elect
to exercise their individual rights under Section 6.5 of the Agreement to
require the Company to assign to such individual the entire life insurance
policy (including the cash value of such life insurance policy) owned by
the Company and insuring such individual's life, the individuals exercising
such rights shall pay to the Company the cash value of the life insurance
policy which insures their life; and
(iii) Acquisition shall pay to the Sellers' Agents, for the benefit of
the Sellers, the amount of the Prudential Premium paid to The Prudential
Insurance Company of America or its assignee at or in connection with the
Closing, plus interest on the Prudential Premium from the Closing Date at
the prime rate as established by The Boatmen's First National Bank of
Kansas City. Acquisition shall take all commercially reasonable means,
including seeking additional borrowings under its credit facilities, to
assure that funds will be available to make the payments required under
this clause (iii).
5. Section 3.2. Section 3.2 of the Agreement is deleted in its entirety and
the following language is inserted in lieu thereof:
3.2 Capitalization. Holdings has authorized capital stock consisting
of 100,000 shares of Common Stock, par value $.01 per share. Acquisition
has authorized capital stock consisting of 10,000 shares of Common Stock,
par value $.01 per share.
6. Representations and Warranties. The Sellers hereby jointly and severally
represent and warrant to Holdings and Acquisition that the representations and
warranties set forth in the Agreement are true and correct in all material
respects as of the date hereof.
7. Wolff Employment Agreement. The parties agree that the form of the Wolff
Employment Agreement attached hereto as Exhibit A shall be the form of such
agreement, as contemplated by Section 6.6.1 of the Agreement, to be executed by
Wolff at Closing and shall be deemed to be Exhibit 6.6.1 to the Agreement.
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8. Subscription Agreement. The parties agree that the form of the
Subscription Agreement attached hereto as Exhibit B shall be the form of such
agreement, as contemplated by Section 6.6.2 of the Agreement, to be executed by
all of the shareholders of Holdings at Closing and shall be deemed to be Exhibit
6.6.2 to the Agreement.
9. Consulting Fees. The parties agree that they are in agreement concerning
the amount and types of fees to be paid to TJC pursuant to the terms of the
consulting agreement to be executed between TJC and Holdings at Closing.
10. Approval of Exhibits. Holdings and Acquisition hereby acknowledge to
the Sellers that the Exhibits delivered to counsel for Holdings and Acquisition
as required by Section 6.6.4 of the Agreement shall be deemed to be the Exhibits
to the Agreement; provided, however, Holdings' and Acquisition's acceptance and
review of such materials as the Exhibits to the Agreement shall not be deemed to
waive or otherwise affect their rights under Article 11 of the Agreement.
11. Satisfaction of Section 6.6 Conditions. The parties agree that the
terms and conditions of Section 6.6 of the Agreement have been satisfied and
that, pursuant to Section 1.1 of the Agreement, (i) the Agreement remains in
full force and effect, except as expressly amended and modified by the terms of
this Amendment, (ii) the obligations of Holdings and Acquisition to consummate
the transactions contemplated by the Agreement remain subject to the fulfillment
of the conditions set forth in Article 7 of the Agreement and (iii) the
obligations of the Sellers to consummate the transactions contemplated by the
Agreement remain subject to the fulfillment of the conditions set forth in
Article 8 of the Agreement.
12. Financing Contingency. The parties agree that Section 8.8 of the
Agreement is deleted in its entirety.
13. Effect of Amendment. Except as modified and amended by the terms and
conditions of this Amendment, all of the terms and conditions of the Agreement
remain in full force and effect.
14. Miscellaneous. This Amendment shall be governed by, construed, applied
and enforced in accordance with the laws of the state of Missouri, except that
no doctrine of choice of law shall be used to apply any law other than that of
the state of Missouri. This Amendment shall insure to the benefit of the parties
and their respective successors, heirs, and assigns. The language used in this
Amendment will be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of strict construction will be applied
against any party hereto. The captions used in this Amendment (i) are for
convenience of reference only, (ii) do not constitute a part of this Amendment
and
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(iii) will not be deemed to limit, characterize or in any way affect any
provision of this Amendment. This Amendment and the Agreement contain the
complete agreement among the parties and supersedes any prior understandings,
agreements or representations by or among the parties, written or oral, which
may relate in any way to the subject matter of this Amendment and the Agreement.
This Amendment may be executed in one or more counterparts, any one of which
need not contain the signatures of more than one party, but all such
counterparts taken together will constitute one and the same instrument.
(Signatures on following pages)
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IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as
of the date first hereinabove set forth.
HOLDINGS:
GFSI HOLDINGS, INC.
By /s/ A. Richard Caputo, Jr.
------------------------------------------
A. Richard Caputo, Jr.,
Vice President
ACQUISITION:
GFSI, INC.
By /s/ A. Richard Caputo, Jr.
------------------------------------------
A. Richard Caputo, Jr.,
Vice President
SELLERS:
Robert M. Wolff, Trustee under that
certain Trust Agreement dated 5/17/79,
by and between Robert M. Wolff, as
Grantor, and Robert M. Wolff, as Trustee
By /s/ Robert M. Wolff
------------------------------------------
Robert M. Wolff, Trustee under that
certain Trust Agreement dated 5/17/79,
by and between Robert M. Wolff, as
Grantor, and Robert M. Wolff, as
Trustee
Marcia W. Wolff, Trustee of the Marcia
W. Wolff Trust under Trust Agreement
dated 6/22/83
By /s/ John L. Menghini
------------------------------------------
John Menghini, attorney-in-fact for
Marcia W. Wolff, Trustee of the Marcia
W. Wolff Trust under Trust Agreement
dated 6/22/83
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By /s/ Robert Shaw
-----------------------------------------
Robert Shaw, attorney-in-fact for
Marcia W. Wolff, Trustee of the Marcia
W. Wolff Trust under Trust Agreement
dated 6/22/83
By /s/ Larry D. Graveel
-----------------------------------------
Larry D. Graveel, attorney-in-fact for
Marcia W. Wolff, Trustee of the Marcia
W. Wolff Trust under Trust Agreement
dated 6/22/83
Robert Shaw, Trustee of the Charles A.
Wolff Trust under Trust Agreement dated
9/29/82
By /s/ Robert Shaw
-----------------------------------------
Robert Shaw, Trustee of the Charles A.
Wolff Trust under Trust Agreement
dated 9/29/82
Scott M. Wolff
By /s/ John L. Menghini
------------------------------------------
John Menghini, attorney-in-fact for
Scott M. Wolff
By /s/ Robert Shaw
-----------------------------------------
Robert Shaw, attorney-in-fact for
Scott M. Wolff
By /s/ Larry D. Graveel
-----------------------------------------
Larry D. Graveel, attorney-in-fact for
Scott M. Wolff
Laura W. Greenbaum, Trustee of the Laura
M. Wolff Trust dated 9/20/78
By /s/ John L. Menghini
------------------------------------------
John Menghini, attorney-in-fact for
Laura W. Greenbaum, Trustee of the
Laura M. Wolff Trust dated 9/20/78
By /s/ Robert Shaw
-----------------------------------------
Robert Shaw, attorney-in-fact for
Laura W. Greenbaum, Trustee of the
Laura M. Wolff Trust dated 9/20/78
By /s/ Larry D. Graveel
-----------------------------------------
Larry D. Graveel, attorney-in-fact for
Laura W. Greenbaum, Trustee of the
Laura M. Wolff Trust dated 9/20/78
Mark Golden and Martin Becker, as
Trustees of the Barry S. Golden
Discretionary Trust for Mark Golden
under Agreement dated 6/20/83
By /s/ John L. Menghini
------------------------------------------
John Menghini, attorney-in-fact for
Mark Golden and Martin Becker, as
Trustees of the Barry S. Golden
Discretionary Trust for Mark Golden
under Agreement dated 6/20/83
By /s/ Robert Shaw
-----------------------------------------
Robert Shaw, attorney-in-fact for
Mark Golden and Martin Becker, as
Trustees of the Barry S. Golden
Discretionary Trust for Mark Golden
under Agreement dated 6/20/83
By /s/ Larry D. Graveel
-----------------------------------------
Larry D. Graveel, attorney-in-fact for
Mark Golden and Martin Becker, as
Trustees of the Barry S. Golden
Discretionary Trust for Mark Golden
under Agreement dated 6/20/83
Michael Golden and Martin Becker, as
Trustees of the Barry S. Golden
Discretionary Trust for Michael Golden
under Agreement dated 6/20/83
By /s/ John L. Menghini
------------------------------------------
John Menghini, attorney-in-fact for
Michael Golden and Martin Becker, as
Trustees of the Barry S. Golden
Discretionary Trust for Michael Golden
under Agreement dated 6/20/83
By /s/ Robert Shaw
-----------------------------------------
Robert Shaw, attorney-in-fact for
Michael Golden and Martin Becker, as
Trustees of the Barry S. Golden
Discretionary Trust for Michael Golden
under Agreement dated 6/20/83
By /s/ Larry D. Graveel
-----------------------------------------
Larry D. Graveel, attorney-in-fact for
Michael Golden and Martin Becker, as
Trustees of the Barry S. Golden
Discretionary Trust for Michael Golden
under Agreement dated 6/20/83
Barry S. Golden, as Trustee of the Barry
S. Golden Revocable Trust dated 11/11/77
By /s/ John L. Menghini
------------------------------------------
John Menghini, attorney-in-fact for
Barry S. Golden, as Trustee of the
Barry S. Golden Revocable Trust dated
11/11/77
By /s/ Robert Shaw
-----------------------------------------
Robert Shaw, attorney-in-fact for
Barry S. Golden, as Trustee of the
Barry S. Golden Revocable Trust dated
11/11/77
By /s/ Larry D. Graveel
-----------------------------------------
Larry D. Graveel, attorney-in-fact for
Barry S. Golden, as Trustee of the
Barry S. Golden Revocable Trust dated
11/11/77
John Leo Menghini, Trustee of the John
Leo Menghini Revocable Trust dated
11/18/92
By /s/ John L. Menghini
------------------------------------------
John Menghini, Trustee of the John Leo
Menghini Revocable Trust dated
11/18/92
Lisa Menghini
By /s/ John L. Menghini
------------------------------------------
John Menghini, attorney-in-fact for
Lisa Menghini
By /s/ Robert Shaw
-----------------------------------------
Robert Shaw, attorney-in-fact for
Lisa Menghini
By /s/ Larry D. Graveel
-----------------------------------------
Larry D. Graveel, attorney-in-fact for
Lisa Menghini
Robert Shaw, Custodian of Laura Shaw
By /s/ Robert Shaw
-----------------------------------------
Robert Shaw, Custodian of Laura Shaw
Robert Shaw, Custodian of Stacey Shaw
By /s/ Robert Shaw
-----------------------------------------
Robert Shaw, Custodian of Stacey Shaw
Anthony Gagliano
By /s/ John L. Menghini
------------------------------------------
John Menghini, attorney-in-fact for
Anthony Gagliano
By /s/ Robert Shaw
-----------------------------------------
Robert Shaw, attorney-in-fact for
Anthony Gagliano
By /s/ Larry D. Graveel
-----------------------------------------
Larry D. Graveel, attorney-in-fact for
Anthony Gagliano
Lee Ann Stevens
By /s/ John L. Menghini
------------------------------------------
John Menghini, attorney-in-fact for
Lee Ann Stevens
By /s/ Robert Shaw
-----------------------------------------
Robert Shaw, attorney-in-fact for
Lee Ann Stevens
By /s/ Larry D. Graveel
-----------------------------------------
Larry D. Graveel, attorney-in-fact for
Lee Ann Stevens
Kirk Kowalewski
By /s/ John L. Menghini
------------------------------------------
John Menghini, attorney-in-fact for
Kirk Kowalewski
By /s/ Robert Shaw
-----------------------------------------
Robert Shaw, attorney-in-fact for
Kirk Kowalewski
By /s/ Larry D. Graveel
-----------------------------------------
Larry D. Graveel, attorney-in-fact for
Kirk Kowalewski
Mark Schimpf
By /s/ John L. Menghini
------------------------------------------
John Menghini, attorney-in-fact for
Mark Schimpf
By /s/ Robert Shaw
-----------------------------------------
Robert Shaw, attorney-in-fact for
Mark Schimpf
By /s/ Larry D. Graveel
-----------------------------------------
Larry D. Graveel, attorney-in-fact for
Mark Schimpf
By /s/ Robert Shaw
-----------------------------------------
Robert Shaw, attorney-in-fact for
Mary Cimpl
By /s/ Larry D. Graveel
-----------------------------------------
Larry D. Graveel, attorney-in-fact for
Mary Cimpl
Dave Geenens
By /s/ John L. Menghini
------------------------------------------
John Menghini, attorney-in-fact for
Dave Geenens
By /s/ Robert Shaw
-----------------------------------------
Robert Shaw, attorney-in-fact for
Dave Geenens
By /s/ Larry D. Graveel
-----------------------------------------
Larry D. Graveel, attorney-in-fact for
Dave Geenens
David Churchman
By /s/ John L. Menghini
------------------------------------------
John Menghini, attorney-in-fact for
David Churchman
By /s/ Robert Shaw
-----------------------------------------
Robert Shaw, attorney-in-fact for
David Churchman
By /s/ Larry D. Graveel
-----------------------------------------
Larry D. Graveel, attorney-in-fact for
David Churchman
Steve Arnold
By /s/ John L. Menghini
------------------------------------------
John Menghini, attorney-in-fact for
Steve Arnold
By /s/ Robert Shaw
-----------------------------------------
Robert Shaw, attorney-in-fact for
Steve Arnold
By /s/ Larry D. Graveel
-----------------------------------------
Larry D. Graveel, attorney-in-fact for
Steve Arnold
Jason Krakow
By /s/ John L. Menghini
------------------------------------------
John Menghini, attorney-in-fact for
Jason Krakow
By /s/ Robert Shaw
-----------------------------------------
Robert Shaw, attorney-in-fact for
Jason Krakow
By /s/ Larry D. Graveel
-----------------------------------------
Larry D. Graveel, attorney-in-fact for
Jason Krakow
Martin Becker, Trustee of the Barry S.
Golden Trust UTA dated 10/7/96
By /s/ John L. Menghini
------------------------------------------
John Menghini, attorney-in-fact for
Martin Becker, Trustee of the Barry S.
Golden Trust UTA dated 10/7/96
By /s/ Robert Shaw
-----------------------------------------
Robert Shaw, attorney-in-fact for
Martin Becker, Trustee of the Barry S.
Golden Trust UTA dated 10/7/96
By /s/ Larry D. Graveel
-----------------------------------------
Larry D. Graveel, attorney-in-fact for
Martin Becker, Trustee of the Barry S.
Golden Trust UTA dated 10/7/96
William DiRocco Trust
By /s/ John L. Menghini
------------------------------------------
John Menghini, attorney-in-fact for
William DiRocco Trust
By /s/ Robert Shaw
-----------------------------------------
Robert Shaw, attorney-in-fact for
William DiRocco Trust
By /s/ Larry D. Graveel
-----------------------------------------
Larry D. Graveel, attorney-in-fact for
William DiRocco Trust
Terry V. Glenn
By /s/ John L. Menghini
------------------------------------------
John Menghini, attorney-in-fact for
Terry V. Glenn
By /s/ Robert Shaw
-----------------------------------------
Robert Shaw, attorney-in-fact for
Terry V. Glenn
By /s/ Larry D. Graveel
-----------------------------------------
Larry D. Graveel, attorney-in-fact for
Terry V. Glenn
Mary Cimpl
By /s/ John L. Menghini
------------------------------------------
John Menghini, attorney-in-fact for
Mary Cimpl
Robert Shaw, Trustee of the John L.
Menghini, Jr. Trust
By /s/ Robert Shaw
-----------------------------------------
Robert Shaw, Trustee of the John L.
Menghini, Jr. Trust
Robert Shaw, Trustee of the Michael J.
Menghini Trust
By /s/ Robert Shaw
-----------------------------------------
Robert Shaw, Trustee of the Michael J.
Menghini Trust
Larry Douglas Graveel, Trustee of the
Larry D. Graveel Trust dated 8/30/91
By /s/ Larry D. Graveel
-----------------------------------------
Larry D. Graveel, Trustee of the Larry
D. Graveel Trust dated 8/30/91
Michael H. Gary, Trustee of The Michael
H. Gary Revocable Trust dated 3/10/93
By /s/ Michael H. Gary
-----------------------------------------
Michael H. Gary, Trustee of The
Michael H. Gary Revocable Trust dated
3/10/93
Robert Shaw, Trustee of The Robert Shaw
Living Trust dated 2/7/89
By /s/ Robert Shaw
-----------------------------------------
Robert Shaw, Trustee of The Robert
Shaw Living Trust dated 2/7/89
Robert Shaw, Custodian of Andrew Shaw
By /s/ Robert Shaw
-----------------------------------------
Robert Shaw, Custodian of Andrew Shaw