Exhibit 2.1
AMENDMENT NO. 1 TO
AMENDED AND RESTATED STOCK PURCHASE AGREEMENT
This AMENDMENT NO. 1 TO AMENDED AND RESTATED STOCK PURCHASE AGREEMENT
(this "Amendment") is made and entered into this 28th day of December 1998
between Xxxxxx, Inc., a New Jersey corporation ("Xxxxxx"), Xxxxxx Homes, Inc., a
New Jersey corporation (the "Company"), and Braewood Development Corp., a Nevada
corporation (the "Purchaser").
In consideration of the mutual covenants and agreements set forth herein
and for good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree to amend that certain Amended and Restated Stock
Purchase Agreement, effective as of September 2, 1998 (the "Agreement"), among
Xxxxxx, the Company and the Purchaser, by assignment from Centex Real Estate
Corporation, a Nevada corporation, as follows:
Section 1. Defined Terms. All capitalized terms used but not defined in
this Amendment have the respective meanings ascribed to such terms in the
Agreement.
Section 2. Litigation. (a) In connection with the preparation of
Xxxxxx'x financial statements for the fiscal year ended November 30, 1998,
Xxxxxx has increased the reserve for litigation for that period by $824,177.
Therefore, the form of Holdback Escrow Agreement attached as Exhibit B to the
Agreement shall be modified to provide that the Company Deposit (as defined in
the Holdback Escrow Agreement) shall be $652,085. The Company Deposit will be
funded by Purchaser on behalf of the Company. The Seller Deposit (as defined in
the Holdback Escrow Agreement) will be $1,506,915 funded through a reduction in
the sales proceeds under the Agreement. Any settlement check or other payment
for litigation or claims or associated expenses that was issued on a Company
account before Closing but not cashed until after Closing, and for which a
reduction in the Company Deposit has not been made, will be reimbursed to the
Company from the Escrow Account.
(b) The Holdback Escrow Agreement will include an annex that identifies
the litigation and claims falling into the following categories: (i) litigation
and claims involving subsidiaries of the Company, all of which will be divested
before the Effective Date, and for which the Company will have no liability or
obligation; (ii) litigation and claims in which the Company is plaintiff and for
which Xxxxxx will bear the costs of pursuit (without recourse to the funds in
the Holdback Escrow Agreement) and will receive the benefit of any recovery; and
(iii) litigation and claims in which the Company is plaintiff and for which the
Company will bear the costs of pursuit (without recourse to the funds in the
Holdback Escrow Agreement) and will receive the benefit of any recovery.
Existing counterclaims in the cases described in clause (ii) are listed on the
Litigation Schedule and will be handled in the same manner as other litigation
and claims on the Litigation Schedule. Counterclaims, if any, that may yet be
filed will be (or will not be) the obligation of Xxxxxx according to the
indemnification provisions of the Agreement. The litigation and claims in each
category are listed on the attached Annex A.
Section 3. Income. Section 12.01(d) of the Agreement is amended to
provide that in addition to other Purchase Price adjustments to be made after
Closing the Purchase Price will be
increased, on or before January 31, 1998, by fifty cents ($.50) for each dollar
($1.00) of after-tax net income of the Company for the month ended December 31,
1998.
Section 4. Intercompany Transactions. On or before January 26, 1999,
Xxxxxx will deliver to Purchaser a complete schedule of all intercompany
transactions that have been made since November 30, 1998. Xxxxxx represents and
warrants that such schedule will be a complete and accurate list of such
intercompany transactions.
Section 5. Bonuses. Xxxxxx has delivered to Purchaser a list of all
performance bonuses to be paid by Xxxxxx or the Company for the fiscal year
ended November 30, 1998, and the proposed date for payment, all of which
correspond with accruals on the Pro Forma November 30, 1998 Balance Sheet. The
Company will also accrue on its books bonuses for the month of December, using
the same bonus accrual methods as were used for the fiscal year ended November
30, 1998.
Section 6. Option/Bond Release. For good and valuable consideration
Xxxxxx grants to Purchaser or its affiliated assignee the option, exercisable
until January 30, 1999, to acquire all of the partnership interests of Talcon
Title Agency, L.P., including the general and limited partnership interests, all
of which are held by Xxxxxx, for $1.00 plus Purchaser's procurement of the
release of Xxxxxx and its Affiliates, and any officers or directors of Xxxxxx or
any such Affiliates who are personally obligated, from all liability and
obligations which relate to the subdivision improvement bonds on the attached
Exhibit A which is intended to represent all of the maintenance bonds for which
Xxxxxx has provided an indemnity obligation to the issuer of the bonds and for
which Purchaser was not otherwise required to procure a release under Section
4.25 of the Agreement.
Section 7. Effect. Except as amended by this Amendment, the Agreement
remains in full force and effect.
Section 8. Counterpart Originals. This Amendment may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same instrument. This Amendment shall be
effective when it has been executed by each of the parties either in person or
by facsimile.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first above written.
XXXXXX, INC.
By:________________________________________
Xxxxxxx X. Xxxxxxxxx
Chairman and Chief Executive Officer
XXXXXX HOMES, INC.
2
By:________________________________________
Xxxxxxx X. Xxxxxxxxx
Chairman and Chief Executive Officer
BRAEWOOD DEVELOPMENT CORP.
By:________________________________________
Name: Xxxxx X. Xxxxx
Title: Vice President
