EXHIBIT 4.9
AMENDMENT NO. 1 TO THE
PUT OPTION AGREEMENT
This Amending Agreement (the "AMENDMENT") is entered into this 13th day of
December, 2004, by and among ALBAHEALTH, LLC, a Delaware limited liability
company (the "COMPANY"); ALBA-WALDENSIAN, INC., a Delaware corporation ("ALBA");
ENCOMPASS GROUP L.L.C., a Delaware limited liability company ("ENCOMPASS"); and
GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation ("GE CAPITAL").
WHEREAS, the parties entered into a series of agreements relating to the
formation and operation of the Company, including that certain Put Option
Agreement (the "PUT OPTION AGREEMENT"), dated as of September 6, 2002;
WHEREAS, pursuant to the terms of the Put Option Agreement, the Alba Party
is entitled to exercise the Put Option for a period of three (3) years
commencing on September 6, 2004;
WHEREAS, it is agreed among the parties that as of the date of this
Amendment to the Put Option Agreement, the Alba Party is entitled to exercise
the Put Option according to the terms of the Put Option Agreement; and whereas
at the request of the Company and Encompass, Alba agreed not to exercise the Put
Option during September 2004, and the parties wish to amend the Put Option
Agreement on the terms and conditions set forth herein;
NOW THEREFORE, the parties hereby agree as follows:
1. This Amendment constitutes an integral part of the Put Option Agreement
and sets forth the understandings of the parties thereto. Any capitalized term
not defined herein shall have the same meaning ascribed to it in the Put Option
Agreement.
2. In the event that the Alba Party does not deliver a Put Notice on or
before June 30, 2005, but delivers a Put Notice during the six month period
beginning July 1, 2005, the terms for calculating the Alba Put Consideration
shall be amended as follows:
a. (i) If LTM EBITDA (as currently defined in the Put Option
Agreement) calculated based on the actual date of delivery of the
Put Notice is less than US$6,434,000(six million four hundred and
thirty-four thousand United States dollars) (the "MINIMUM
EBITDA"), then "LTM EBITDA" for purposes of computing the Alba
Put Consideration shall be deemed to be the Minimum EBITDA.
(ii) If LTM EBITDA calculated based on the date of delivery of
the Put Notice is greater than the Minimum EBITDA, then "LTM
EBITDA" for purposes of computing the Alba Put Consideration
shall be the Minimum EBITDA plus 50% of the amount by which the
actual LTM EBITDA exceeds Minimum EBITDA.
b. The "Initial Put Payment" for purposes of computing the Alba Put
Consideration shall be the Initial Put Payment (as currently
defined in the Put Option Agreement, based on the LTM EBITDA as
defined in section 2(a) to this Amendment above) plus $325,000
(three hundred and twenty-five thousand United States dollars).
3. In the event that the Alba Party does not deliver a Put Notice during
the six month period beginning July 1, 2005, the terms for calculating the Alba
Put Consideration shall remain as set forth in the Put Option Agreement as in
effect prior to this Amendment.
4. In case that the Alba Party delivers a Put Notice during the six month
period beginning July 1, 2005, the consummation of the purchase of the Put
Interest will take place 105 days following the Put Date.
5. An example of the calculation of the Alba Put Consideration assuming
delivery of the Put Notice during the six month period beginning July 1, 2005
and in accordance with clause 2 above is set forth in ANNEX A to this Amendment.
6. Except as modified in this Amendment, all terms and conditions of the
Put Option Agreement remain unmodified and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have entered into and signed this
Amendment to be effective as of the date first written above.
ALBAHEALTH, LLC
By: /S/ Yos Shiran
------------------
Name: Yos Shiran
Title: Chairman
ENCOMPASS GROUP, L.L.C.
By: /S/ ▇▇▇▇▇ ▇.
----------------
Name: ▇▇▇▇▇ ▇.
Title: C.O.O.
GENERAL ELECTRIC CAPITAL CORPORATION
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: C.O.O.
ALBA-WALDENSIAN, INC.
By: /S/ Yos Shiran /S/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------ ----------------
Name: Yos Shiran ▇▇▇▇ ▇▇▇▇▇▇▇
Title: CEO CFO
ANNEX A
CALCULATION OF "PUT VALUE"
Debt = any indebtedness for borrowed money
Y = net debt ("Debt" minus cash and cash equivalents) at the last day of the
quarter ended before the "put notice".
"PUT VALUE" IF ACTUAL EBITDA <= 6,434,000:
($ 6,434,000 x 6) + 325,000 - Y
"PUT VALUE" IF ACTUAL EBITDA > 6,434,000:
($ 6,434,000 x 6) + [(actual EBITDA - 6,434,000) x 3] + 325,000 - Y
