EXHIBIT 2.2
AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as of November 8, 2001
(this "Amendment"), between X.X. XXXXXX, INC., a Delaware corporation ("DHI"),
and XXXXXXX HOMES, INC., a Delaware corporation (the "Company").
WHEREAS, the parties hereto entered into the Agreement and Plan of
Merger, dated as of October 22, 2001 (the "Agreement"), between DHI and the
Company;
WHEREAS, the parties hereto desire to amend the Agreement as herein
provided;
NOW, THEREFORE, for valuable consideration hereby acknowledged, the
parties hereto agree as follows:
Section 1. Amendment. The Agreement is hereby amended by (a) deleting
SECTION 2.1.3(d)(i) in its entirety and substituting in lieu thereof:
(i) Cash equal to the quotient of (y) the Cash Consideration
minus the product of (A) the Adjusted Cash Amount times (B) the
aggregate number of Non-Election Shares, divided by (z) the aggregate
number of Cash Election Shares, but in no event less than the Adjusted
Cash Amount.
and (b) deleting the amount "$4.09" from SECTION 2.1.3(d)(iv) and substituting
the phrase "Adjusted Cash Amount" in lieu thereof.
Section 2. References. All references in the Agreement to the Agreement
shall be deemed to be references to the Agreement as amended hereby.
Section 3. Representations and Warranties. Each of the parties hereto
represent and warrant that this Amendment has been duly and validly authorized,
executed and delivered by such party and constitutes the legal, valid, and
binding obligation of such party, enforceable against such party in accordance
with its terms.
Section 4. Entire Agreement; Ratification. This Amendment embodies the
entire agreement of the parties and supersedes any prior agreements or
understandings with respect to the subject matter hereof. Except as modified or
supplemented hereby, the Agreement shall continue in full force and effect.
Section 5. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the internal laws of the State of Delaware
applicable to contracts executed and fully performed within the State of
Delaware.
Section 6. Counterparts. This Amendment may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when
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executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
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IN WITNESS WHEREOF, DHI and the Company have caused this Amendment to
be executed as of the date first written above by their respective officers
thereunto duly authorized.
X.X. XXXXXX, INC.
By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
Executive Vice President, Treasurer,
and Chief Financial Officer
XXXXXXX HOMES, INC.
By: /s/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx
Co-Chairman, President and Chief
Executive Officer