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EXHIBIT 2.2.1
FIRST AMENDMENT TO AMENDED AND RESTATED STOCK PURCHASE
AGREEMENT AND AGREEMENT REGARDING EARNOUT AMOUNTS FOR BONUS
YEAR 2004 AND INDEMNIFICATION CLAIM
This FIRST AMENDMENT TO AMENDED AND RESTATED STOCK PURCHASE
AGREEMENT AND
AGREEMENT REGARDING EARNOUT AMOUNTS FOR BONUS YEAR 2004 AND
INDEMNIFICATION
CLAIM (the "First Amendment") is entered into as of November 10,
2004 by and
among Delta Apparel, Inc., a Georgia corporation ("Delta"), M.
J. Soffe Co., a
North Carolina corporation (the "Company"), and James F. Soffe,
John D. Soffe,
and Anthony M. Cimaglia (collectively, the "Shareholders").
WHEREAS, Delta, the Company, and the Shareholders entered into
that
certain Amended and Restated Stock Purchase Agreement (the
"Stock Purchase
Agreement"), dated as of October 3, 2003, pursuant to which the
Shareholders
agreed to sell, and Delta agreed to purchase (through a
wholly-owned subsidiary
of Delta), all of the outstanding shares of capital stock of
M.J. Soffe Co.; and
WHEREAS, Delta, the Company, and the Shareholders desire to
amend the
definition of EBITDA contained in the Stock Purchase Agreement
and to make an
adjustment to the EBITDA calculation with respect to Bonus Year
2004 (as such
term is defined in the Stock Purchase Agreement); and
WHEREAS, Delta, the Company, and the Shareholders desire to
resolve
Delta's claim for indemnification by the Shareholders with
respect to the
understatement of current accrued liabilities set forth on the
Closing Financial
Information (as such term is defined in the Stock Purchase
Agreement); and
WHEREAS, capitalized terms used herein, unless otherwise defined
herein,
shall have the same meanings as given such terms in the Stock
Purchase
Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
conditions
set forth herein, and other good and valuable consideration, the
receipt and
sufficiency of which are hereby acknowledged, Delta, the
Company, and the
Shareholders hereby agree as follows:
1. The definition of "EBITDA" contained in Exhibit L to the
Stock
Purchase Agreement is hereby deleted in its entirety and
replaced with the
following, effective as of October 3, 2003:
"EBITDA means the earnings of the Company (including income
received in
the Ordinary Course of Business from sources other than sales
of
inventory) before interest expense and income Taxes, plus
depreciation and
amortization (including the addition of depreciation expense
that is
capitalized in inventory owned by the Company on the Closing
Date and sold
by the Company during the applicable
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period, but not including any depreciation expense that is
capitalized in
any other inventory), determined in accordance with GAAP
consistently
applied and using methodologies that are consistent with those
used on the
Company's opening balance sheet (which opening balance sheet
shall be
prepared in accordance with the methodologies set forth on
Schedule X
attached hereto and made a part hereof)."
2. Delta hereby agrees that EBITDA with respect to Bonus Year
2004
shall be increased (from the amount it otherwise would have
been) by the amount
of $26,000 for purposes of calculating the EBITDA Earnout Amount
and the Return
Rate Earnout Amount with respect to Bonus Year 2004 (together,
the "2004 Earnout
Amounts").
3. The Shareholders acknowledge and agree that the current
accrued
liabilities of M.J. Soffe Co. at Closing, as reflected in the
Closing Financial
Information, were understated by an amount equal to $1,541,090,
as further
described in Exhibit A attached hereto, and that such
understatement constituted
a breach by the Shareholders of Section 8.11 of the Stock
Purchase Agreement
(the "Breach"). The Shareholders further acknowledge and agree
that, pursuant to
the terms of the Stock Purchase Agreement, Delta is entitled to
assert a Claim
for indemnification with respect to the Breach in the amount of
$1,541,090 (the
"Closing Financial Information Claim")
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