EXHIBIT 10.28
AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
This AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT (the "Amendment"), is made
and entered into as of November 18, 1998, by and among Xxxxxxx American
Corporation (formerly known as Monroe, Inc.), a Delaware corporation (the
"Buyer"), Xxxxxxx Enterprises, Inc., a Massachusetts corporation (the
"Company"), Xxxxxx X. Xxxxxxx and those individuals identified as Stockholders
on the signature pages to this Amendment (each, individually a "Stockholder" and
collectively the "Stockholders"). Capitalized terms used herein and not
otherwise defined shall have the meaning provided in the Purchase Agreement, as
hereinafter defined.
WHEREAS, the parties hereto are parties to a Stock Purchase Agreement (the
"Purchase Agreement"), dated as of May 20, 1998; and
WHEREAS, the parties hereto desire to amend the Purchase Agreement as
provided herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
Section 1. Amendment. The Purchase Agreement is amended as set forth
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below:
(a) Paragraph 4 of the Preamble of the Purchase Agreement is deleted in its
entirety and is replaced by the following:
WHEREAS, Buyer is entering into a separate stock purchase agreement
(the "Other Agreement") with Xxxxxx-American Company, Inc., a North
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Carolina corporation ("Xxxxxx-American"), pursuant to which it will
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acquire all of the outstanding capital stock of Xxxxxx-American (such
acquisition, the "Xxxxxx-American Acquisition"); and
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(b) Paragraph 5 of the Preamble of the Purchase Agreement is deleted in
its entirety and is replaced by the following:
WHEREAS, the parties intend that the transfer and sale of capital
stock pursuant to this Agreement and the initial underwritten public
offering by Buyer of shares of Buyer Common Stock (the "IPO")
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(collectively the "Plan of Organization") will be treated as exchanges
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qualifying under Section 351 of the Internal Revenue Code of 1986, as
amended (the "Code").
----
(c) Section 1.2 of the Purchase Agreement is deleted in its entirety and
is replaced by the following:
Total Consideration. In consideration of the transfer by the
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Stockholders to Buyer of the Company Shares, Buyer agrees to pay to
the Stockholders aggregate consideration of $48,500,000, subject to
reduction as provided in Sections 1.4 and 1.9 below (the "Total
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Consideration"), comprised of (a) cash in the aggregate amount of
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$31,000,000 (subject to reduction as provided in Sections 1.4 and
1.9), (b) a number of shares of common stock of Buyer, $.01 par value
per share ("Buyer Common Stock") equal to (i) $12,500,000 divided by
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(ii) the price (the "IPO Price") at which shares of Buyer Common Stock
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will be sold to the public in the IPO, as set forth in the final
prospectus (the "Prospectus") contained in the registration statement
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on Form S-1 (the "Registration Statement") to be filed with the
----------------------
Securities and Exchange Commission (the "SEC") in connection with the
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IPO and (c) either cash or a number of shares of Buyer Common Stock
(valued at the IPO Price) or a combination thereof, at the option of
Buyer (written notice of which must be provided to the Company and the
Stockholders' Representative not less than ten (10) days prior to the
Closing Date), having an aggregate value of $5,000,000. The Total
Consideration shall be allocated among the Stockholders in the manner
set forth in Exhibit B hereto. The cash portion of the Total
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Consideration, reduced as provided in Sections 1.4 and 1.9, shall be
paid by Buyer at the Closing by wire transfer of immediately available
funds to an account which shall be specified by each Stockholder at
least three business days prior to the Closing, or, if not so
specified, by certified check. The portion of the Total Consideration
consisting of shares of Buyer Common Stock shall, subject to the
deposit by Buyer into escrow of certain shares as contemplated by
Section 1.9, be transferred by Buyer at the Closing by delivery to
each Stockholder of a certificate representing the number of shares of
Buyer Common Stock (rounded to the nearest whole share) to which such
Stockholder is entitled hereunder.
(d) Section 1.4 of the Purchase Agreement is deleted in its entirety and
is replaced by the following:
Tax Escrow. On the Closing Date, Buyer shall deposit an amount of
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cash equal to the amount calculated in accordance with Schedule
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1.4 attached hereto (the "Audit Amount") in escrow (the "Tax Escrow")
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with an escrow agent mutually acceptable to Buyer and the
Stockholders' Representative (the "Escrow Agent") to be held, invested
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and distributed by the Escrow Agent in accordance with the terms of an
escrow agreement in substantially the form attached hereto as Exhibit
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C (the "Tax Escrow Agreement"). The cash portion of the Total
- --------------------
Consideration otherwise payable to each Stockholder shall be reduced
by the Audit Amount on a pro rata basis based upon the ratio that the
number of Common Shares held by such Stockholder bears to the total
number of Common Shares held by all Stockholders. Exhibit B hereto
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sets forth such pro rata
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interest of each Stockholder, expressed as a percentage (each a
"Common Proportionate Share"). Notwithstanding the foregoing, the cash
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portion of the Total Consideration payable in respect of Preferred
Shares shall not be reduced and shall not participate in the Tax
Escrow. The Tax Escrow will be available to pay obligations and
liabilities of the Company (including, without limitation, federal and
state Taxes, the "Audit Liabilities") in connection with and resulting
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from the audits (collectively, the "Audits" and each individually, an
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"Audit") by (i) the Internal Revenue Service (the "IRS") of the
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federal income tax returns filed by the Company with respect to the
Company's fiscal years ended August 31, 1992, 1993, 1994, 1995, 1996
and 1997 and the employment tax returns filed by the Company with
respect to calendar years 1993 and 1994 and (ii) the Massachusetts
Department of Revenue (the "DOR") of the Massachusetts state income
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tax returns filed by the Company with respect to the Company's fiscal
years ended August 31, 1994, 1995 and 1996. The parties hereto agree
and acknowledge that the Company has entered into (i) an Agreement to
Assessment and Collection of Additional Tax and Acceptance of
Overassessment (the "Payroll Tax Agreement") and (ii) a Consent to
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Assessment and Collection (the "Income Tax Agreement," together with
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the Payroll Tax Agreement, the "Tax Settlement Agreements," copies of
-------------------------
which are attached to Schedule 1.4), with the IRS with respect to the
Audits relating to the Company's federal income tax returns for the
Company's fiscal years ended August 31, 1992, 1993 and 1994 and the
Company's employment tax returns for calendar years 1993 and 1994 (the
"Settled Audits"). In addition, the parties agree that Buyer currently
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intends to deliver to the Escrow Agent, at or promptly after the
Closing, the appropriate notice required under the Tax Escrow
Agreement to instruct the Escrow Agent to pay to the IRS all
amounts payable under the Income Tax Agreement and/or to pay to the
DOR or other state or local taxing authority some or all of the amount
that Buyer reasonably believes is payable to the DOR or other state or
local taxing authority as a result of the Audits. Each of the
Stockholders' Representative and the Stockholders agree not to dispute
such notice or resulting payments from the Tax Escrow and shall, at
the Buyer's request, execute joint written instructions to the Escrow
Agent to effect such payments.
(e) A new Section 1.4A is added to the Purchase Agreement to read in its
entirety as follows:
Additional Payment. As additional consideration for the transfer by
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the Stockholders to Buyer of the Company Shares, Buyer agrees to pay
to each Stockholder such Stockholder's Common Proportionate Share of
the actual amount received by the Company, if any, as a refund with
respect to the Company's federal income tax return for the Company's
fiscal year ended August 31, 1998 (collectively, the "Additional
Payments"). The Additional Payments, if any, shall be paid to the
Stockholders no later than fifteen (15) days after the date on which
the Company receives its final refund with respect to the Company's
federal income tax return for the Company's fiscal year ended August
31, 1998. Subject to the foregoing, the Additional Payments shall be
paid by wire transfer of immediately available funds to the accounts
specified by each Stockholder prior to the Closing, or, if not so
specified, by certified check. The Company shall have the right to
prepare and file (or cause its accountants to prepare and file) prior
to the Closing the Company's federal income tax return for its fiscal
year ended August 31, 1998. Buyer shall have the right to review and
discuss such tax return with the Company prior to filing. If the
Company takes any action after the Closing which would reduce the
amount of the Additional Payments, the Additional Payments will not be
so reduced but will be treated as if such action had not been taken.
(f) Section 1.7 of the Purchase Agreement is deleted in its entirety and
is replace by the following:
Income Tax Treatment of the Transactions. It is intended that the
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following transactions, which are occurring simultaneously, will be
treated as exchanges qualifying under (S)351 of the Code: (i) the
transfer of the Company Shares by the Stockholders in exchange for
Buyer Common Stock and cash pursuant to this Agreement and (ii) the
sale of Buyer Common Stock for cash in the IPO. All of
3
the parties to this Agreement agree to report the aforementioned
transactions, for all purposes, consistently with the foregoing.
(g) Section 1.9 of the Purchase Agreement is deleted in its entirety and
is replaced by the following:
Indemnification Escrow. On the Closing Date, Buyer shall deposit into
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escrow (the "Indemnity Escrow") with the Escrow Agent (a) cash in the
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aggregate amount of $3,700,000 (the "Cash Escrow Amount") and (b) a
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number of shares of Buyer Common Stock (rounded to the nearest whole
share) equal to (i) $1,300,000 divided by (ii) the IPO Price (the
"Escrowed Shares"), to be held, invested and distributed by the Escrow
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Agent in accordance with the terms of an indemnification escrow
agreement in substantially the form attached hereto as Exhibit D (the
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"Indemnification Escrow Agreement"). The cash portion of the Total
--------------------------------
Consideration otherwise payable to each Stockholder shall be reduced
by such Stockholder's Common Proportionate Share of the Cash Escrow
Amount. The number of shares of Buyer Common Stock to be delivered to
each Stockholder at the Closing pursuant to Section 1.2 shall be
reduced by such Stockholder's Common Proportionate Share of the number
of Escrowed Shares. Notwithstanding the foregoing, the cash portion of
the Total Consideration payable in respect of the Preferred Shares and
the shares of Buyer Common Stock deliverable in respect of Preferred
Shares shall not be reduced and shall not participate in the Indemnity
Escrow.
(h) Section 2.3(b) of the Purchase Agreement is deleted in its entirety
and is replaced by the following:
The Stockholders own of record and, except for (i) the trust fund (the
"ESOP Trust Fund") referred to in Article 2.17 of the Xxxxxxx
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Enterprises, Inc. Employee Stock Ownership Plan as amended and
restated by the Ninth Amendment, effective as of January 1, 1997, as
amended by the Tenth Amendment, effective as of September 1, 1998,
(the "ESOP"), (ii) the Xxxxxxx Trust and (iii) the Xxxxxx X. Xxxxxxx
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1991 Charitable Remainder Unitrust (the "Xxxxxxx CRUT"), beneficially,
all of the issued and outstanding shares of capital stock of the
Company as set forth on Exhibit A hereto.
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(i) Section 2.19 of the Purchase Agreement is deleted in its entirety and
is replaced by the following:
Warranty or Other Claims. Except as set forth in Schedule 2.19, there
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are no existing or, to the knowledge of the Company and the
Stockholders, threatened product liability, warranty or other similar
claims, or to the knowledge of the Company and the Stockholders any
facts upon which a valid material claim of
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such nature could be based, against the Company or any of its
Subsidiaries for products or services which are defective or fail to
meet any product or service warranties. No claim has been asserted
against the Company or any of its Subsidiaries for renegotiation or
price redetermination of any business transaction, and, to the
knowledge of the Company and the Stockholders, there are no facts upon
which any valid claim therefor could be based.
(j) The penultimate sentence and the last sentence of Section 4.4 of the
Purchase Agreement are deleted in their entirety and are replaced by the
following:
Except as expressly provided in the next sentence, the delivery of any
Company Disclosure Supplement, Closing Disclosure Supplement or other
notice pursuant to this Section 4.4 shall not render correct any
representation or warranty that was incorrect when made or limit or
otherwise affect the remedies available hereunder to the party
receiving such Company Disclosure Supplement, Closing Disclosure
Supplement or notice. It is expressly agreed that, for the purpose of
determining whether or not the representations and warranties
contained in the first sentence of Section 2.6(a), the first sentence
of Section 2.6(a)(ii), Section 2.11, the last sentence of Section 2.15
and Section 2.30(b) are true, correct or accurate at any time after
the date hereof, such representations or warranties shall be modified
by information set forth in the Closing Disclosure Supplement and any
Company Disclosure Supplement and any remedies (including, without
limitation, the remedies set forth in Section 10) available to the
party receiving the Closing Disclosure Supplement or any Company
Disclosure Supplement based upon the accuracy of such representations
and warranties after the date hereof shall be affected by the Closing
Disclosure Supplement and any Company Disclosure Supplement.
(k) Subsections (d) and (e) of Section 4.2 of the Agreement are deleted
in their entirety and are replaced by the following:
(d) Refrain from making any change or incurring any obligation to make
a change in its Articles of Organization, by-laws, capital structure
or authorized or issued capital stock, including but not limited to
the issuance of any option, warrant, call, conversion right or
commitment of any kind with respect to the Company's capital stock;
provided, however, that no later than the date preceding the date on
which Buyer files with the SEC the final pricing amendment with
respect to the Registration Statement, the Company shall fully satisfy
the matching contributions required pursuant to the Xxxxxxx Advantage
Plan 401(k) for the Company's fiscal year ended August 31, 1998 by (i)
paying up to $500,000 of such matching contributions to the ESOP in
cash and (ii) paying the balance of such matching contributions in
newly issued shares of its common stock to the ESOP (the "ESOP Share
Issuance") (upon the ESOP Share Issuance, the Company shall update and
deliver to Buyer Exhibits A and B hereto and all shares of common
stock issued in the ESOP Share Issuance shall be deemed included in
the definition of "Common Shares" for all purposes);
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(e) Other than (i) a cash dividend with respect to the Preferred Stock in
an aggregate amount not exceeding the accrued and unpaid dividends on the
Preferred Stock as of August 31, 1998 and (ii) with respect to redemptions
by the Company from the ESOP Trust Fund in accordance with the terms of the
ESOP, refrain from declaring, setting aside or paying any dividend, making
any other distribution in respect of its capital stock or making any direct
or indirect redemption, purchase or other acquisition of its stock;
(l) A new Section 4.17 is added to the Purchase Agreement to read in its
entirety as follows:
ABD/Xxxxxxx Dispute. Without the prior written consent of Buyer,
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which consent shall not be unreasonably withheld, neither the Company
nor any of the Stockholders shall, nor shall the Company permit any of
its directors, officers, employees or agents to make or respond to any
settlement proposal or other proposed resolution with respect to the
ABD/Xxxxxxx Dispute or agree to or enter into any settlement or other
proposed resolution with respect to the ABD/Xxxxxxx Dispute.
(m) Section 5.9 of the Purchase Agreement is deleted in its entirety and
is replaced by the following:
Private Offering. Neither Buyer, any of its affiliates nor anyone
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on its behalf, has issued, sold or offered any securities of Buyer to
any person under circumstances that would cause the issuance and sale
of the Buyer Common Stock pursuant to this Agreement or the Other
Agreement to be subject to the registration requirements of the
Securities Act. Assuming that the representations and warranties of
the Stockholders contained in Section 3.4 of this Agreement are true
and correct as of the date hereof and as of the Closing Date, the
offering of shares of Buyer Common Stock pursuant to the Plan of
Organization will be made in compliance in all material respects with
applicable federal and state securities laws.
(n) Section 8.2(e) of the Purchase Agreement is deleted in its entirety.
(o) Section 9.1 of the Purchase Agreement is deleted in its entirety and
is replaced by the following:
Termination. At any time prior to the Closing, this Agreement may be
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terminated as follows:
(a) by mutual written consent of all of the parties to this
Agreement;
(b) by the Company or Stockholders holding a majority in
interest of the Common Shares, provided that neither the Company nor
any of the Stockholders is in material breach of this Agreement: (i)
if Buyer is in material breach of this Agreement and such breach shall
remain uncured for a period of ten (10) business days after the
Company shall have given written notice of such breach to Buyer; (ii)
if Buyer shall have explicitly or by conduct repudiated this Agreement
and such repudiation shall have remained uncured for a period of five
(5) business days after the Company shall have given written notice
thereof to Buyer; (iii) if by December 31, 1998, any of the conditions
in Section 8.1 or Section 8.3 shall not have been satisfied, complied
with or performed in all material respects (unless such failure of
satisfaction, noncompliance or nonperformance is the result directly
or indirectly of any intentional or willful action or intentional or
willful failure to act on the part of the Company or any Stockholder)
and the Company and the Stockholders shall not have waived in writing
such failure of satisfaction, noncompliance or nonperformance; (iv) if
by November 20, 1998, Buyer has not delivered to the Stockholders'
Representative a letter of intent providing for a bank underwriting
commitment from a lender in the amount of at least $50,000,000; (v) if
by December 4, 1998, the managing underwriter of the IPO has not
commenced the road show for the IPO; or (vi) if by December 24, 1998,
Buyer has not filed the final pricing amendment to the Registration
Statement; or
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(c) by Buyer, provided that Buyer is not in material breach of
this Agreement: (i) if the Company or any Stockholder is in material
breach of this Agreement and such breach shall remain uncured for a
period of ten (10) business days after Buyer shall have given written
notice of such breach to the Company and the Stockholders; (ii) if the
Company or any Stockholder shall have explicitly or by conduct
repudiated this Agreement and such repudiation shall have remained
uncured for a period of five (5) business days after Buyer shall have
given written notice thereof to such party; or (iii) if by December
31, 1998, any of the conditions in Section 8.1 or Section 8.2 shall
not have been satisfied, complied with or performed in all material
respects (unless such failure of satisfaction, noncompliance or
nonperformance is the result directly or indirectly of any intentional
or willful action or intentional or willful failure to act on the part
of Buyer) and Buyer shall not have waived in writing such failure of
satisfaction, noncompliance or nonperformance.
(p) Sections 10.2(d) and (e) of the Purchase Agreement are deleted in
their entirety and are replaced by the following:
(d) any breach of any covenant or agreement made by the Company or
any Stockholder in this Agreement or in any Schedule, Exhibit or
certificate delivered under or in connection with this Agreement, or
by reason of any claim, action or proceeding asserted or instituted
arising out of any such breach;
(e) any liability of the Company or any Subsidiary for misuse,
misapplication or improper handling, administration or management of
market development or promotional funds or market development or
promotional fund accounts, in each case which arises from an event or
transaction occurring prior to the Closing; and
(q) A new Section 10.2(f) is added to the Purchase Agreement to read in
its entirety as follows:
(f) the dispute between the Company (and any Subsidiary) and ABD
Sales, Inc., Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxx, Xxxxxx Xxxxxxx,
Xxxxxx X. Xxxxx and Xxxxxxx Xxxxxxxxx which is currently pending
before the American Arbitration Association (the "ABD/Xxxxxxx
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Dispute"), including, without limitation, any Loss resulting from any
settlement, litigation, arbitration award or judgment, but only to the
extent that the total amount of all Losses under this subsection (f)
exceeds $8,000,000; provided, however, if any settlement, award or
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judgment provides for payment on a deferred basis, such Loss shall be
calculated on a net present value basis using a discount rate of 8%.
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(r) The penultimate paragraph and the paragraph immediately preceding the
penultimate paragraph of Section 10.2 of the Purchase Agreement are deleted
in their entirety and are replaced by the following:
Claims under clauses (a) through (f) of this Section 10.2 are
collectively referred to herein as "Buyer Indemnifiable Claims," and
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Losses in respect of such claims are collectively referred to herein
as "Buyer Indemnifiable Losses."
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For purposes of this Section 10.2, "severally" means each Stockholder
shall be liable only for such Stockholder's Common Proportionate Share
of any Buyer Indemnifiable Losses. Buyer Indemnifiable Losses
resulting from or arising out of the breach by a Stockholder of any
representation or warranty contained in Section 3 or any covenant or
agreement made by such Stockholder in this Agreement or in any
Schedule, Exhibit or certificate delivered under or in connection with
this Agreement shall be satisfied solely by recourse to such breaching
Stockholder's Common Proportionate Share of the Indemnity Escrow and
only to the extent of such breaching Stockholder's Common
Proportionate Share of the Indemnity Escrow (subject to the option of
such breaching Stockholder to pay in cash rather than Escrowed Shares
in accordance with the terms of the Indemnification Escrow Agreement).
(s) Section 10.3(a) of the Purchase Agreement is deleted in its entirety
and is replaced by the following:
Indemnification Escrow. Subject to the exceptions set forth in
----------------------
Section 10.3(c) below, all Buyer Indemnifiable Claims and Buyer
Indemnifiable Losses shall be satisfied solely by the Indemnity Escrow
pursuant to the terms of this Agreement and the Indemnification Escrow
Agreement, provided that Buyer Indemnifiable Claims and Buyer
Indemnifiable Losses relating to the Audit Liabilities may also be
satisfied by the Tax Escrow pursuant to the terms of this Agreement
and the Tax Escrow Agreement. Buyer Indemnifiable Claims relating to
the Audit Liabilities will, to the extent that the Tax Escrow (taking
into account all Buyer Indemnifiable Claims pending against the Tax
Escrow) has funds available, be claimed first against the Tax Escrow
before being claimed against the Indemnity Escrow. To the extent that
any Buyer Indemnifiable Losses are paid by a Stockholder directly in
cash rather than by Escrowed Shares pursuant to the Indemnification
Escrow Agreement, a number of Escrowed Shares (rounded to the nearest
whole share) equal to the amount of cash so paid divided by the IPO
Price (subject to appropriate adjustment after the Closing Date for
any stock split or stock dividend with respect to Buyer Common Stock,
or any combination or reclassification of the Buyer Common Stock into
a greater or smaller number of shares) shall be distributed to such
Stockholder in accordance with the Indemnification Escrow Agreement.
(t) Section 10.3(c) of the Purchase Agreement is deleted in its entirety
and is replaced by the following:
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No Limitation on Certain Claims. Notwithstanding anything herein to
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the contrary, Buyer Indemnified Parties (i) shall be entitled to
dollar-for-dollar indemnification from the first dollar, (ii) shall
not be subject to the Deductible Amount, (iii) shall not be limited to
recourse against the Indemnity Escrow, (iv) shall be entitled to claim
directly against any Stockholder and (v) shall not be subject to any
limitation as to time (except as provided in Section 10.3(d)), in
seeking indemnification from the Stockholders with respect to any of
the following:
(A) Losses involving a breach by the Company or any Stockholder
of any of the representations and warranties contained in Sections 2.3
and 3.1; or
(B) Buyer Indemnified Losses described in Sections 10.2(a).
In addition, notwithstanding anything herein to the contrary, (1)
Buyer Indemnifiable Losses arising under Section 10.2(f) shall not be
subject to the Deductible Amount, shall be indemnifiable from the
first dollar and shall not exceed $2,000,000 and (2) Buyer
Indemnifiable Losses with respect to the Audit Liabilities shall not
be subject to the Deductible Amount, shall be indemnifiable from the
first dollar and shall be limited in accordance with Section 10.3(a).
(u) The third sentence of Section 10.7 of the Purchase Agreement is
deleted in its entirety and is replaced by the following:
In determining Losses hereunder, due account shall be taken of all
relevant factors, including, without limitation, the net present value
of (i) any insurance proceeds (net of any negative tax effects) and
(ii) any deduction, credit, amortization, exclusion from income or
other tax benefit realized by the indemnified party on the account of
any Loss; provided that Buyer Indemnifiable Losses relating to the
Audit Liabilities will not be reduced by any such tax benefit which
results from any appeal, dispute or contest of the Settled Audits by
Buyer or the Company.
(v) Section 11.2 of the Purchase Agreement is deleted in its entirety and
is replaced by the following:
Fees and Expenses. Each of Buyer, the Company, and the Stockholders
-----------------
shall bear its or his own expenses and costs in connection with the
preparation and negotiation of this Agreement and the consummation of
the transactions contemplated hereby, provided that solely in the
event that the purchase and sale of Company Shares is consummated
hereunder, the reasonable expenses of the Company and the Stockholders
(including the legal and accounting expenses of the Company and the
Stockholders and amounts payable to the financial advisor to the
Trustee of the ESOP) in connection with such transaction, up to a
maximum of $650,000, shall be paid by Buyer or may be paid by or
reflected in an account of the Company, except that Buyer will not be
required to pay (and the Company will not pay or have reflected in any
account) the fees and expenses of more than one firm of legal counsel
to the Company, one firm of legal counsel for the ESOP Trust Fund and
one firm of legal counsel to Xxxxxx X. Xxxxxxx, the Xxxxxxx CRUT and
the Xxxxxxx Trust. All expenses of the Company and the Stockholders
that are not payable by Buyer or reflected in an account of the
Company pursuant to the immediately preceding sentence shall be paid
directly by the Stockholders.
(w) The following "defined term" is deleted from Section 11.14 of the
Purchase Agreement:
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Xxxxxx-American Acquisition - Section 1.7
(x) The following "defined terms" are added to Section 11.14 of the
Purchase Agreement in their respective alphabetical places:
ABD/Xxxxxxx Dispute - Section 10.2(f)
Additional Payments - Section 1.4A
Cash Escrow Amount - Section 1.9
ESOP Share Issuance - Section 4.2(d)
Indemnity Escrow - Section 1.9
Xxxxxx-American Acquisition - Preamble
(y) Schedule 1.4 (Audit Amount) to the Purchase Agreement is deleted in
its entirety and is replaced by Schedule 1.4 attached hereto.
(z) Exhibit B (Allocation of Total Consideration) to the Purchase
Agreement is deleted in its entirety and is replaced by Exhibit B attached
hereto.
(aa) Exhibit C (Form of Tax Escrow Agreement) to the Purchase Agreement is
deleted in its entirety and is replaced by Exhibit C attached hereto.
(bb) Exhibit D (Form of Indemnification Escrow Agreement) to the Purchase
Agreement is deleted in its entirety and is replaced by Exhibit D attached
hereto.
Except as expressly amended hereby, the Purchase Agreement remains in full
force and effect in accordance with its terms.
Section 2. Governing Law. This Amendment shall be construed under and
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governed by the internal laws of The Commonwealth of Massachusetts without
regard to its conflict of laws provisions.
Section 3. Counterparts. For the convenience of the parties, this
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Amendment may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which shall constitute one and the same document.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF the parties hereto have caused this Amendment to be
executed as of the date set forth above by their duly authorized
representatives.
XXXXXXX AMERICAN CORPORATION
/s/ Xxxxx X. Xxxxxx
By:____________________________________
Xxxxx X. Xxxxxx
President
XXXXXXX ENTERPRISES, INC.
/s/ Xxxxxx X. Xxxxxxx
By:____________________________________
Xxxxxx X. Xxxxxxx
President
S-1
STOCKHOLDERS
------------
/s/ Xxxxxx Xxxxxxxx
_________________________________
Xxxxxx Xxxxxxxx
00 Xxxxxxx Xxxx
Xxxx Xxxxxx, XX 00000
/s/ Xxxxxxx X. Xxxxxxx
__________________________________
Xxxxxxx X. Xxxxxxx
00 Xxxxx Xxxx
Xxxxxxx, XX 00000
/s/ Xxxxxx X. Xxxxx
__________________________________
Xxxxxx X. Xxxxx
0 Xxxxxxxxx Xxxx
Xxxxxxxxx Xxxxx, XX 00000
/s/ Xxxxxx X. Xxxxx, Xx.
__________________________________
Xxxxxx X. Xxxxx, Xx.
00 Xxxx Xxxx Xxxx
Xxxxxxx, XX 00000
/s/ Xxxxxx X. Xxxxxxx
__________________________________
Xxxxxx X. Xxxxxxx
000 Xxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
/s/ Xxxxxx X. Xxxxxxx
__________________________________
Xxxxxx X. Xxxxxxx
0000 Xxxxx Xxxxx Xxxxxxxxx
Xxxxxxxx Xxxxx, XX 00000-0000
S-2
XXXXXX X. XXXXXXX
1984 REVOCABLE TRUST
/s/ Xxxxxx X. Xxxxxxx
__________________________________
Xxxxxx X. Xxxxxxx, Trustee
/s/ Xxxxxx X. Xxxxx
__________________________________
Xxxxxx X. Xxxxx, Trustee
/s/ Xxxxx Xxxxx
__________________________________
Xxxxx Xxxxx, Trustee
XXXXXX X. XXXXXXX 1991 CHARITABLE REMAINDER UNITRUST
/s/ Xxxxxx X. Xxxxxxx
__________________________________
Xxxxxx X. Xxxxxxx, Trustee
/s/ Xxxxxx X. Xxxxx
__________________________________
Xxxxxx X. Xxxxx, Trustee
XXXXXXX ENTERPRISES, INC.
EMPLOYEE STOCK OWNERSHIP TRUST
/s/ Xxxxx X. Xxxxxxxxxxx
__________________________________
Xxxxx X. Xxxxxxxxxxx, as Trustee and not individually
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
/s/ Xxxxxx X. Xxxxxx, Xx.
__________________________________
Xxxxxx X. Xxxxxx, Xx.
00 Xxx Xxxxxx
Xxxxxxx, XX 00000
___________________________________
Xxxxxx X. Xxxxx
00 Xxxxxxxx Xxxxx
X. Xxxxxxxx, XX 00000
S-3
