AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
Reference is made to that certain Stock Purchase Agreement (the
"Agreement") entered into as of June 4, 1998 by and among Gemini Plastic
Services, Inc., a Florida corporation (the "Company"), Anchor Advanced Products,
Inc., a Delaware corporation (the "Purchaser"), and Xxxxxx Xxxxxxx, Xxxx Xxxx,
Xxxxx Xxxxxxx, Xxxxxxxx Xxxxxx, Xxxxxx Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxx Xxxxxxxxx
and Xxxxx Xxxxx (each a Seller and sometimes collectively referred to herein as
the "Sellers"). Capitalized terms used herein and not otherwise defined shall
have the same meaning herein as in the Agreement.
The purpose of this Amendment No. 1 is to set forth the parties'
agreement with respect to certain issues under the Agreement.
Accordingly, the parties hereby agree as follows:
1. Purchase Price Adjustment. Notwithstanding any provision in the
Agreement to the contrary, (a) the parties have agreed that the Purchaser shall
pay an estimated Purchase Price at Closing of $9,800,000, (b) the Purchaser
shall cause the Company to prepay the outstanding indebtedness under the
Affiliate Notes as set forth on Schedule 2.26 (an aggregate amount of $378,992),
in exchange for the return of each of the original Affiliate Notes, marked "Paid
in Full", and (c) the Sellers have advised the Purchaser that the
lease/financing obligations for equipment newly acquired since February 28, 1998
is not $1,192,036.50 as previously represented by the Sellers on Schedule
1.02(b), but rather $594,466. In connection therewith:
(a) Amendment to Section 1.02(b) of the Agreement. Section 1.02(b) of
the Agreement is hereby amended by deleting such Section in its
entirety from the Agreement and substituting therefor the
following:
"(b) "Closing Liabilities Amount" means the aggregate amount of
total liabilities appearing on the Closing Balance Sheet, as
finally determined pursuant to Section 1.06, provided that (i) the
capital lease/financing obligations of Five Hundred Ninety-Four
Thousand Four Hundred Sixty-Six Dollars ($594,466) for equipment
newly acquired since February 28, 1998 shall not be included in the
calculation of Closing Liabilities Amount hereunder and (ii) the
indebtedness of the Company under the Affiliate Notes shall be
included in the calculation of Closing Liabilities Amount."; and
(b) Amendment to Section 1.02(d) of the Agreement. Section 1.02(d) of
the Agreement is hereby amended by deleting such Section in its
entirety from the Agreement and substituting therefor the
following:
"(d) "Purchase Price" means Nine Million Eight Hundred Thousand
Dollars ($9,800,000), minus (i) the amount, if any, by which the
Closing Liabilities Amount exceeds Five Million One Hundred Ninety
Thousand One Hundred Eight Dollars ($5,190,108) and minus (ii) the
amount, if any, by which the stockholders' equity of $2,760,692
appearing on the estimated Closing Balance Sheet which has been
submitted by the Sellers to the Purchaser and attached hereto as
Exhibit A, exceeds the Closing Net Book Value."
2. New Equipment. Notwithstanding any provision in the Agreement to the
contrary, any reference in the Agreement to Schedule 1.02(b) or the amounts set
forth therein are hereby amended to be a reference to $594,466, that being the
amount which Sellers represent and warrant to the Purchaser as the total amount
of lease/financing obligations for equipment newly acquired since February 28,
1998.
3. FINOVA. Notwithstanding any provision in the Agreement to the
contrary, the parties acknowledge that they have not received a consent to the
assignment of the Company=s agreements with FINOVA Technology Finance, Inc.,
f/k/a Financing for Science International, Inc. ("FINOVA") and have agreed to
proceed with the Closing as contemplated under the Agreement subject to the
following:
(a) the Sellers and the Purchaser will cooperate using reasonable good
faith efforts to obtain FINOVA=s consent to the assignment of its contracts with
the Company to the Purchaser with minimum fees, costs and expenses;
(b) to the extent there are any such fees, costs or expenses of any
kind whatsoever, including without limitation penalties, the Sellers, jointly
and severally, on the one-hand, and the Purchaser, on the other hand, agree to
split such fees, costs and expenses on a fifty-fifty basis. Any such cost
splitting shall not be subject to the provisions of ARTICLE IX of the Agreement.
4. NECC. Notwithstanding any provision in the Agreement to the
contrary, the parties have agreed that if the cost to obtain a consent to the
assignment of the Company=s contracts with New England Capital Corporation
("NECC") exceeds $5,000, the Sellers, jointly and severally, on the one hand,
and the
Purchaser, on the other hand, agree to bear any such excess costs on a
fifty-fifty basis. Any such cost splitting shall not be subject to the
provisions of ARTICLE IX of the Agreement.
5. No Further Amendments. Except as specifically amended hereby, the
Agreement remains in full force and effect.
6. Counterparts. This Amendment No. 1 may be executed in one or more
counterparts, and with counterpart signature pages, each of which shall be an
original, but all of which together shall constitute one and the same Amendment
No. 1, and each such counterpart may be delivered by telecopy and any such
delivery shall be as effective as delivery of a manually signed counterpart.
[Signatures appear on the following page.]
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment No. 1 to Stock Purchase Agreement as a sealed instrument as of this
29th day of June, 1998.
Company:
GEMINI PLASTIC SERVICES, INC.
By: /s/ Crugar Xxxxxx, President
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Sellers:
/s/ Xxxxxx Xxxxxxx /s/ Xxxx Xxxx
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Xxxxxx Xxxxxxx Xxxx Xxxx
/s/ Xxxxx Xxxxxxx /s/Xxxxxxxx Xxxxxx
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Xxxxx Xxxxxxx Xxxxxxxx Xxxxxx
/s/ Xxxxxx Xxxxxx /s/ Crugar Xxxxxx
-------------------- ------------------
Xxxxxx Xxxxxx Crugar Xxxxxx
/s/ Xxxxxxx Xxxxxxxxx /s/ Xxxxx Xxxxx
-------------------- ------------------
Xxxxxxx Xxxxxxxxx Xxxxx Xxxxx
Purchaser:
ANCHOR ADVANCED PRODUCTS, INC.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, CEO
