Exhibit 10.8
FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT (this Amendment") is
entered into as of June 29, 2001, by and among Dominion Capital, Inc., a
Virginia corporation ("Seller"), Saxon Capital Acquisition Corp., a Delaware
corporation ("Purchaser"), and Saxon Capital, Inc., a Virginia corporation (the
"Company").
WHEREAS, the parties hereto have entered into that certain Stock
Purchase Agreement dated as of June 7, 2001 (the "Purchase Agreement"), pursuant
to which Purchaser has agreed to purchase from Seller, and Seller has agreed to
sell to Purchaser, all of the issued and outstanding capital stock of the
Company; and
WHEREAS, the parties hereto desire to amend the Purchase Agreement as
set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. Section 1.1 of the Purchase Agreement is hereby
amended by adding the following definitions:
"CASH PURCHASE PRICE" shall have the meaning assigned to it in SECTION
2.1(a).
"NOTE" shall have the meaning assigned to it in SECTION 2.1(a).
2. PURCHASE AND SALE OF COMPANY STOCK. Section 2.1(a) of the
Purchase Agreement is hereby deleted in its entirety and replaced with the
following:
(a) Upon the terms and subject to the conditions
hereinafter set forth, on the Closing Date, Seller shall sell, convey,
assign, transfer and deliver to Purchaser, and Purchaser shall
purchase, accept and acquire from Seller, all of the Company Stock for
a purchase price as determined pursuant to SECTION 2.1(b), as such
amount may be adjusted pursuant to SECTION 2.2 and SECTION 2.3 (the
"Purchase Price"). Twenty-five million dollars ($25,000,000) of the
Purchase Price payable at the Closing shall be paid by Purchaser in the
form of a promissory note (the "Note"), in the form attached hereto as
EXHIBIT 2.1, to be executed by Purchaser at the Closing, and the
balance of the Purchase Price shall be paid in cash, by wire transfer
of immediately available funds denominated in U.S. dollars in
accordance with the written instructions of Seller (the "Cash Purchase
Price").
3. PURCHASER'S DELIVERIES. Section 3.3 of the Purchase Agreement
is hereby deleted in its entirety and replaced with the following:
SECTION 3.3 PURCHASER'S DELIVERIES.
At the Closing, Purchaser shall deliver or cause to be
delivered to Seller the following:
(a) The Cash Purchase Price, pursuant to SECTION 2.1.
(b) The Note, pursuant to SECTION 2.1, executed and
delivered by Purchaser.
(c) Certified copies of resolutions, duly adopted by the
Board of Directors of Purchaser, which shall be in full force and
effect at the time of the Closing, authorizing the execution, delivery
and performance by Purchaser of this Agreement and any agreements
contemplated hereby and the consummation of the transactions
contemplated hereby and thereby.
(d) The officer's certificate referred to in SECTION
9.1(c).
(e) An opinion of counsel to Purchaser, in substantially
the form attached hereto as EXHIBIT 3.3.
(f) Reimbursement of (i) the filing fee paid by Seller
under the HSR Act and (ii) fifty percent (50%) of the fees and expenses
of Xxxxxx Merchant Partners.
(g) Such other documents as are reasonably required to be
delivered by Purchaser to effectuate the transfer of the Purchased
Stock to Purchaser.
4. PURCHASER'S CORPORATE AUTHORITY. Section 5.2 of the Purchase
Agreement is hereby deleted in its entirety and replaced with the following:
SECTION 5.2 CORPORATE AUTHORITY.
(a) Purchaser has the corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. All corporate actions and proceedings necessary to
be taken by or on the part of Purchaser in connection with the
execution and delivery of this Agreement and the transactions
contemplated hereby have been duly and validly authorized by the Board
of Directors of Purchaser, and no other corporate proceedings or
stockholder approvals on the part of Purchaser are necessary to
authorize the execution and delivery of this Agreement or to consummate
the transactions contemplated hereby. This Agreement has been duly and
validly executed and delivered by Purchaser and constitutes the legal,
valid and binding obligation of Purchaser, enforceable against it in
accordance with and subject to its terms, except for the Enforceability
Exceptions.
(b) Purchaser has the corporate power and authority to
execute and deliver the Note and to perform its obligations thereunder.
The Note will be duly and validly executed and delivered by Purchaser
at the Closing and when executed and delivered will
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constitute the legal, valid and binding obligation of Purchaser,
enforceable against it in accordance with and subject to its terms,
except for the Enforceability Exceptions.
5. PURCHASER'S DELIVERIES. Section 9.4 of the Purchase Agreement
is hereby deleted in its entirety and replaced with the following:
SECTION 9.4 DELIVERIES.
Seller and the Company shall have received the items to be
delivered by Purchaser pursuant to SECTIONS 3.3(a) through (g),
inclusive.
6. INDEMNIFICATION BY SELLER. Section 11.6(b) of the Purchase
Agreement is hereby deleted in its entirety and replaced with the following:
(b) The maximum liability of Seller to indemnify the
Indemnified Purchaser Parties for any Indemnified Purchaser Claims
pursuant to SECTION 11.1(a)(i), (iv) or (v) shall be limited to an
amount equal to the Purchase Price; provided, however, that in the
event the liability of Seller to indemnify the Indemnified Purchaser
Parties for any Indemnified Purchaser Claims pursuant to SECTION
11.1(a)(i), (iv) or (v) shall exceed the Cash Purchase Price, Seller
shall have the option, in its discretion, to elect to provide such
indemnification in excess of the Cash Purchase Price through a set-off
against amounts owed by Purchaser to Seller under the Note; provided,
further, that in no event shall the maximum aggregate liability of
Seller to indemnify the Indemnified Purchaser Parties for all
Indemnified Purchaser Claims pursuant to SECTION 11.1(a) exceed the
Purchase Price.
7. INDEMNIFICATION BY PURCHASER. Section 11.6(e) of the Purchase
Agreement is hereby deleted in its entirety and replaced with the following:
(e) The maximum liability of Purchaser to indemnify the
Indemnified Seller Parties for any Indemnified Seller Claims pursuant
to SECTION 11.2(a)(i) or (iii) shall be limited to an amount equal to
the Purchase Price; provided, further, that in no event shall the
maximum aggregate liability of Purchaser to indemnify the Indemnified
Seller Parties for all Indemnified Seller Claims pursuant to SECTION
11.2(a) exceed the Purchase Price.
8. REMAINING PROVISIONS. Except as expressly modified by this
Amendment, the Purchase Agreement shall remain in full force and effect, and all
references to the Agreement in the Purchase Agreement or any other document or
agreement referenced therein shall mean the Agreement as modified by this
Amendment.
9. MISCELLANEOUS.
(a) AMENDMENT; MODIFICATION. This Amendment may be
amended, modified or waived only by a written instrument executed by all of the
parties hereto. The failure of any party at any time or times to require
performance of any provision of this Amendment shall in no manner affect the
right of such party at a later date to enforce the same.
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(b) SUCCESSORS AND ASSIGNS. All terms and provisions of
this Amendment shall be binding upon and inure to the benefit of the parties
hereto and their respective permitted transferees, successors and assigns. No
party hereto may assign any of its rights or delegate any of its duties
hereunder without the prior written consent of the other parties, and any such
attempted assignment or delegation without such consent shall be null and void.
(c) NOTICES. All notices, request, demands and other
communications hereunder shall be in writing and shall be delivered personally,
by courier, by telecopy or by mail (regular, certified or registered), postage
prepaid, to the addresses and in the manner set forth in the Purchase Agreement.
(d) GOVERNING LAW. This Amendment shall be governed by,
and construed and enforced in accordance with, the laws of the Commonwealth of
Virginia, without giving effect to the choice of law provisions thereof.
(e) COUNTERPARTS. This Amendment may be executed
simultaneously in one or more counterparts, each of which shall be deemed an
original, but all of which shall constitute but one and the same instrument.
(f) SEVERABILITY. Should any provision of this Amendment
for any reason be declared invalid or unenforceable, (i) such decision shall not
affect the validity or enforceability of any of the other provisions of this
Amendment, which remaining provisions shall remain in full force and effect, and
(ii) the application of such invalid or unenforceable provision to persons or
circumstances other than those as to which it is held invalid or unenforceable
shall be valid and enforced to the fullest extent permitted by law, but only to
the extent that such enforceability or application is in accordance with the
intent of the parties as evidenced by this Amendment.
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IN WITNESS WHEREOF, the parties have caused this First Amendment to
Stock Purchase Agreement to be duly executed by their authorized officers, as of
the day and year first above written.
SAXON CAPITAL ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: President
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SAXON CAPITAL, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: President
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DOMINION CAPITAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
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Title: President & CEO
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