AMENDMENT NO. 2
TO
ASSET PURCHASE AGREEMENT
THIS AMENDMENT NO. 2 TO ASSET PURCHASE AGREEMENT ("Amendment") is
entered into effective as of April 28, 1997, by and among KREG Operating Co.,
a Delaware corporation ("Purchaser"), Xxxxxx X. Xxxx ("Xxxx"), The Xxxx
Company, a California corporation ("Seller") and Xxxx Real Estate Group, Inc.
(the "Company").
RECITALS
A. Purchaser and Seller have previously entered into (i) that certain
Asset Purchase Agreement dated as of September 30, 1993 and (ii) that certain
Amendment No. 1 to Asset Purchase Agreement dated as of December 29, 1993
(collectively, the "Agreement"). Xxxx has executed the Agreement for the sole
purpose of agreeing and entering into the provisions of Article XII-Covenant Not
to Compete (the "Non-Compete") contained therein.
B. The Company is Purchaser's 100% parent company, and the Company has
proposed to effect a recapitalization (the "Recapitalization") as set forth
in that certain Registration Statement on Form S-4, Registration No.
333-22121, including any amendments thereto.
C. In connection with the Recapitalization, the parties hereto wish to
amend the termination provisions of the Non-Compete in order to permit the
Recapitalization and to add to the events which may cause a termination of the
Non-Compete.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereby agree that the terms of Section 12.4 of the
Agreement entitled "Termination" shall be amended and restated to read in full
as follows:
"12.4 TERMINATION. In addition to the termination of the Covenant
Not to Compete Set forth in Section 12.1 above on account of the lapse
of time as set forth therein, in the event that Purchaser defaults in
the payment of any amounts due to the Seller or Xxxx under this
Agreement, and such default continues for a period of ten (10) days
after delivery of notice of such payment default by the Seller or
Xxxx, as applicable, the Covenant Not to Compete of the Seller and
Xxxx shall immediately terminate and be of no further force and
effect. Notwithstanding anything to the contrary contained in this
Agreement, and in addition to any other termination of the Covenant
Not to Compete provided in the Agreement, the Covenant Not to Compete
of the Seller and Xxxx shall immediately terminate and be of no
further force and effect upon consummation of the Recapitalization,
AND the occurrence of any one of the following (i) the resignation of
Xxxx as an officer and director of the Company after the first
anniversary of the Recapitalization, (ii) the resignation of Xxxx as
an officer and director of the Company at any time following the
consummation of the
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Recapitalization in the event the Board of Directors of the Company duly
resolves to authorize any sale of all or substantially all of the
properties or interests in the properties of the Company, any merger or
consolidation of the Company with any other entity, other than a merger or
consolidation in which the Company will control the merged or consolidated
entity, any dissolution of the Company, any cessation of a present
operation of the Company or any other extraordinary corporate transaction
involving properties or interests in property of the Company, (iii) the
removal of Xxxx from his positions as an officer or director of the
Company, or (iv) the failure to elect Xxxx to such offices at any future
meeting of stockholders held after consummation of the Recapitalization.
In connection with any such termination of the Covenant Not to Compete,
Xxxx, Seller and their respective affiliates shall be released by
Purchaser, the Company and their respective affiliates, from claims of
usurpation of corporate opportunity, interference with prospective
advantage and like torts; provided, Xxxx, Seller and their respective
affiliates will not be released from claims of improper employee
solicitation for two (2) years after the consummation of the
Recapitalization and, in the event Xxxx is removed from office with the
Company on the basis of a conclusive determination of usurpation of
corporate opportunity, Xxxx and his affiliates will not be released from
claims of usurpation of corporate opportunity. In addition, Purchaser, the
Company and their respective affiliates shall similarly release any
officer, director or employee of the Company who thereafter leaves the
Company to join Xxxx, Seller or their respective affiliates."
Defined terms not otherwise defined in this Amendment shall have the
meanings provided in the Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed effective as of the date first above written.
KREG OPERATING CO., a Delaware corporation
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Chief Financial Officer
XXXX REAL ESTATE GROUP, INC., a Delaware
corporation
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Executive Vice President and
Chief Financial Officer
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
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THE XXXX COMPANY, a California corporation
By: /s/ XXXXXX X. XXXX
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Name: Xxxxxx X. Xxxx
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Title: Chairman and
Chief Executive Officer
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/s/ XXXXXX X. XXXX
--------------------------------------
XXXXXX X. XXXX
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