Exhibit 10.17
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FIRST AMENDMENT TO ACQUISITION AGREEMENT
THIS FIRST AMENDMENT, dated as of October 3, 1997 (this "Amendment"), is
made to the Acquisition Agreement, dated as of September 11, 1997 (the
"Agreement"), by and among ▇.▇. ▇▇▇▇▇ DRUG COMPANY, a Missouri corporation
("Buyer"), G.D. HOLDINGS OF DELAWARE, INC., a Delaware corporation
("Holdings"), ▇▇▇▇▇▇ INVESTOR GROUP, L.P., an Illinois limited partnership (the
"Partnership"), and the partners of the Partnership who have executed the
Agreement (collectively, the "Partners"). Terms used and not otherwise defined
herein have the meanings accorded to such terms in the Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Restatement of Section 1.2. Section 1.2 of the Agreement is hereby
deleted in its entirety and the following provision is hereby substituted in
lieu thereof:
"Section 1.2 Purchase Price. The total purchase price for the Shares
of the Partnership Interests shall be $28,000,000 (as such amount may
be reduced pursuant to the final sentence of Section 3.13 below, the
"Base Purchase Price"); plus if the Closing occurs after the later of
thirty-five (35) days from (i) the date of execution of this Agreement
or (ii) the date Buyer files it Premerger Notification and Report Form
under the HSR Act (as defined below) for approval of the transactions
contemplated hereunder, and such delay in the Closing is not
attributable to (i) delay in obtaining any governmental consent or
approval of the transactions contemplated hereunder, (ii) the failure
of Holdings, the Partnership or the Partners to deliver any document,
certificate or other item required to be delivered pursuant to Section
1.5 or 6.1 hereunder, or (iii) any claim, action or lawsuit against
any of the parties hereto that would restrict or prohibit such party
from consummating the transactions contemplated herein, an amount
equal to $5,000 multiplied by the number of days from but not
including such date to and including the Closing Date (the
"Incremental Purchase Price," and, together with the Base Purchase
Price, the "Purchase Price")."
2. Restatement of Section 1.3. Section 1.3 of the Agreement is hereby
deleted in its entirety and the following provision is hereby substituted in
lieu thereof:
"Section 1.3 Payment of Purchase Price. The Purchase Price shall be
paid as follows:
(a) In the event of the Share Purchase, at the Closing, Buyer
shall deliver to the Partnership (i) a One Day Promissory Note (the
"One Day Note") in a form reasonably acceptable to Buyer and the
Partnership
(including an irrevocable letter of credit securing the One Day Note
in form reasonably satisfactory to the parties, with all fees and
expenses related to such letter of credit to be paid by the
Partnership on behalf of the Partners electing to receive a portion of
such One Day Note in proportion to the principal amount to be received
by each such Partner), in such principal amount as the Partnership
shall elect (the "One Day Note Principal Amount"); provided that in no
event shall the One Day Note Principal Amount exceed the Purchase
Price minus $4,500,000 (the "Maximum Closing Amount"), and (ii) a
January 2, 1998 Note (the "1/2/98 Note") in a form reasonably
acceptable to Buyer and the Partnership (including an irrevocable
letter of credit securing the 1/2/98 Note in form reasonably
satisfactory to the parties, with all fees and expenses related to
such letter of credit to be paid by the Partnership on behalf of the
Partners electing to receive a portion of such 1/2/98 Note in
proportion to the principal amount to be received by each such
Partner), in a principal amount equal to the excess of the Maximum
Closing Amount over the One Day Note Principal Amount.
(b) In the event of the Partnership Purchase, at the Closing,
Buyer shall deliver to ▇▇▇▇▇▇ ▇▇▇▇▇▇, as paying agent for the Partners
(i) a 1/2/98 Note in a form reasonably acceptable to Buyer and the
Partnership (including an irrevocable letter of credit securing the
1/2/98 Note in form reasonably satisfactory to the parties, with all
fees and expenses related to such letter of credit to be paid by the
Partnership on behalf of the Partners electing to receive a portion of
such 1/2/98 Note in proportion to the principal amount to be received
by each such Partner), in such principal amount as the Partnership
shall elect (the "1/2/98 Note Principal Amount"); provided that in no
event shall the 1/2/98 Note Principal Amount exceed the Maximum
Closing Amount, and (ii) a transitory promissory note in form
reasonably acceptable to Buyer and the Partnership in a principal
amount equal to the excess of the Maximum Closing Amount over the
1/2/98 Note Principal Amount (the "Transitory Note") which shall be
payable in full immediately upon funding of the loans under that
certain Loan and Security Agreement, dated as of October 3, 1997,
among Buyer, certain other borrowers and the lenders named therein by
wire transfer of immediately available funds to an account designated
in writing by the Partnership at least one business day prior to
Closing.
(c) In any event, at the Closing, the Buyer shall deliver to a
commercial bank or other financial institution mutually acceptable to
Buyer and the Partnership, as escrow agent (the "Escrow Agent"), the
sum of $4,500,000 to be held in an escrow account pursuant to the
terms of the Escrow Agreement, substantially in the form attached
hereto as Exhibit 1.3(c) (the "Escrow Agreement")."
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3. Restatement of Section 3.13. Section 3.13 of the Agreement is hereby
deleted in its entirety and the following provision is hereby substituted in
lieu thereof:
"Section 3.13 Expenses. The Partnership (or, in the case of the
Partnership Purchase, the Partners) shall pay all legal and financial
advisor fees and expenses incurred on behalf of the Companies or the
Partnership, all fees and expenses incurred in connection with the
solicitation of the approval of the partners of the Partnership, and
all fees and expenses related to the letters of credit referred to in
Section 1.3, in each case, in connection with the transactions
contemplated hereunder (collectively, "Partnership Expenses"). All
other reasonable fees and expenses (if any) incurred on behalf of the
Companies or the Partnership (but not of the individual partners of
the Partnership) in connection with the transactions contemplated
hereunder shall be paid by the Companies. The Partnership and the
Partners shall indemnify and hold harmless Buyer and the Companies in
respect of any fees and expenses not expressly described in this
Section 3.13 as the Companies' responsibility.
4. Restatement of Section 6.1. Section 6.1(w) of the Agreement is hereby
deleted in its entirety and the following provision is hereby substituted in
lieu thereof:
"(w) Buyer shall have received an Employment Agreement duly executed
by ▇▇▇▇▇▇ ▇▇▇▇▇▇, containing the terms set forth in Exhibit 6.1w-2
hereto (the "Employment Agreement")."
In addition, the term "Employment Agreements" shall be deleted throughout
the Agreement and replaced with the term "Employment Agreement."
5. Waivers
(a) The Partnership has (i) transferred (or on the Closing will
transfer) the real property owned by it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ to General Drug Company and (ii) paid (or on the Closing will pay) the
indebtedness owed to the City of Chicago under that certain CDB Float Loan
Demand Note due 11/15/98. Buyer waives any breach, violation or default under
the Agreement with respect to the transactions referred to in the previous
sentence.
(b) In lieu of the requirements of Holdings under Section 3.11, Buyer
agrees to accept copies of the payroll register for the period ended September
30, 1997, setting forth the names of the Companies' employees.
6. Full Force and Effect. Except as expressly amended or modified
hereby, the Agreement will and does remain in full force and effect.
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7. Governing Law. This Amendment will be governed by and construed in
accordance with the domestic laws of the State of Illinois, without giving
effect to any choice of law or conflict provision or rule (whether of the State
of Illinois or any other jurisdiction) that would cause the laws of any
jurisdiction other that the State of Illinois to be applied. In furtherance of
the foregoing, the internal law of the State of Illinois will control the
interpretation and construction of this Amendment, even if under such
jurisdiction's choice of law or conflict of law analysis, the substantive law of
some other jurisdiction would ordinarily apply.
8. Counterparts. This Amendment may be executed simultaneously in two or
more counterparts, any one of which need not contain the signatures of more than
one party, but all such counterparts taken together shall constitute one and the
same Amendment.
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IN WITNESS WHEREOF, the Parties have executed this First Amendment to
Acquisition Agreement as of the date first written above.
▇.▇. ▇▇▇▇▇ DRUG COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman
G.D. HOLDINGS OF DELAWARE, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇ INVESTOR GROUP, L.P.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: General Partner
RESCAP CORPORATION
Title: General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇, as attorney in fact
for the Partners
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