EXHIBIT 10.27
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 16, 1998, by and among Xxxxxxx American
Corporation (formerly known as Monroe, Inc.), a Delaware corporation (the
"Buyer"), Xxxxxx-American Company, Inc., a North Carolina corporation (the
"Company"), Xxxxxx X. Xxxxxx, Xx., as representative of the Stockholders (the
"Stockholders' Representative"), 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 22, 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) 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 cash in the aggregate amount of $25,635,000 (the
"Total Consideration"). The Total Consideration shall be allocated
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among the Stockholders in the manner set forth in Exhibit B hereto.
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The Total Consideration shall, subject to the deposit by Buyer into
escrow of the Escrow Amount (as defined in Section 1.8), be paid by
Buyer at the Closing by wire transfer to an account which shall be
specified by each Stockholder at least three business days prior to
the Closing.
(b) Section 1.3 of the Purchase Agreement is deleted in its entirety and
is replaced by the following:
Closing. Unless this Agreement shall have been terminated in
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accordance with Section 9 hereof, the closing of the transfer of the
Company Shares provided for in this Agreement (the "Closing") shall
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take place at the offices of Xxxxxxx, Procter & Xxxx LLP at Exchange
Place, 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 commencing at
10:00 a.m. local time on the date on which the conditions to closing
set forth in Section 8 hereof are satisfied, or, if applicable,
waived, or at such other time, date and place as may be otherwise
mutually agreed upon by
the Company and Buyer (the "Closing Date"); provided, however, that
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the Closing Date shall not be after December 31, 1998.
(c) Section 1.6 of the Purchase Agreement is deleted in its entirety and
is replaced by the following:
Certain Definition. For the purposes of this Agreement, the "Code"
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shall refer to the Internal Revenue Code of 1986, as amended.
(d) Section 1.8 of the Purchase Agreement is deleted in its entirety and
is replaced by the following:
Indemnification Escrow. On the Closing Date, Buyer shall deposit an
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amount of cash equal to $1,550,000 (the "Escrow Amount") with an
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escrow agent mutually acceptable to Buyer and the Stockholders'
Representative (the "Escrow Agent"), to be held, invested and
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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 "Escrow Agreement"). The Total Consideration payable to the
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Stockholders at the Closing pursuant to Section 1.2 shall be reduced
by the Escrow Amount as provided in Exhibit B attached hereto under
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the column headed "Escrow".
(e) Section 2.34(b) of the Purchase Agreement is deleted in its entirety
and is replaced by the following:
Provided only that Buyer has accurately incorporated any information
furnished in writing by the Company to Buyer specifically for
inclusion in any registration statement to be filed with the
Securities and Exchange Commission (the "SEC"), any prospectus
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contained in such registration statement, any proxy statement, any
private placement memorandum, any offering memorandum or similar
disclosure document (each, an "Offering Document"), in connection with
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any initial public offering, Rule 144A offering, private placement or
any other debt or equity financing (each, an "Offering") by Buyer and
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has deleted from any Offering Document any statement that the Company
has specifically requested in writing be so deleted, (i) at the time
any Offering Document becomes effective under the Securities Act of
1933, as amended (the "Securities Act") (if applicable) or is
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delivered to any prospective purchaser of securities offered by the
Buyer, such Offering Document will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and (ii) at the time of the commencement and consummation of the
Offering, no Offering Document will include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of
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the circumstances under which they were made, not misleading. The
representations and warranties in this Section 2.34(b) shall not apply
to statements in or omissions from any Offering Document relating to
any person or entity other than the Company and its officers,
directors and stockholders.
(f) Section 3.4 of the Purchase Agreement is deleted in its entirety.
(g) Section 4.2(m) of the Purchase Agreement is deleted in its entirety
and is replaced by the following:
Permit Buyer, the managing underwriters or placement agent of any
Offering and their respective authorized representatives to have full
access to all its properties, assets, records, tax returns, contracts
and documents and furnish to Buyer, the managing underwriters or
placement agent of any Offering and their respective authorized
representatives such financial and other information with respect to
its business or properties as they may from time to time reasonably
request;
(h) Section 4.4 of the Purchase Agreement is deleted in its entirety and
is replaced by the following:
Notification of Certain Matters. The Company and each of the
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Stockholders (each a "Notifying Party") shall give prompt notice to
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Buyer of (a) the occurrence or non-occurrence of any event that would
be likely to cause any representation or warranty of the Notifying
Party contained in this Agreement to be untrue or inaccurate in any
material respect at or prior to the Closing and (b) any material
failure of the Notifying Party to comply with or satisfy any covenant,
condition, or agreement to be complied with or satisfied by it
hereunder and the Company and the Stockholders shall use their best
efforts to prevent or promptly remedy the same. Without limiting the
foregoing, from time to time prior to the Closing the Company will
promptly supplement or amend the Schedules hereto both to correct any
inaccuracy in such Schedules when delivered and to reflect any
development which, if existing at the date of this Agreement, would
have been required to be set forth in the Schedules or which has
rendered inaccurate the information contained in such Schedules (each
notice furnishing such information being called a "Company Disclosure
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Supplement"), and at least five (5) business days prior to the Closing
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the Company will deliver to Buyer a final Company Disclosure
Supplement consisting of a complete update of the Schedules hereto as
though all representations and warranties contained in Section 2 and
Section 3 hereof were to be made as of the date of the Closing. In
addition, the Company and each of the Stockholders shall promptly
notify Buyer in writing if at any time prior to a closing in
connection with the Offering it or he shall obtain knowledge of any
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facts relating to the Company or its officers, directors or
stockholders that might make it necessary or appropriate to amend or
supplement any Offering Document (or any other document filed with any
public official in connection with the Offering) in order to make the
statements contained therein not misleading or comply with applicable
law. The delivery of any Company 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 or notice.
(i) Section 4.6 of the Purchase Agreement is deleted in its entirety and
is replaced by the following:
Cooperation of the Company and Stockholders. The Company and each of
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the Stockholders shall (a) cooperate with all reasonable requests of
Buyer, Buyer's counsel and accountants in connection with the
consummation of the transactions contemplated hereby and (b) execute
and deliver such other instruments and take such other actions as may
be reasonably required by Buyer or the managing underwriters or
placement agent of any Offering in order to carry out the intent of
this Agreement and to close the Offering, including without limitation
the execution and delivery of customary lock-up agreements, director
and officer questionnaires and S-1 questionnaires, subject to the
other terms of this Agreement.
(j) Section 4.9 of the Purchase Agreement is deleted in its entirety.
(k) Section 4.13 of the Purchase Agreement is deleted in its entirety and
is replaced by the following:
No Transfer of Company Shares. Except for the transfers of Company
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Shares contemplated by Schedule 2.31 hereto, which shall occur on the
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business day immediately preceding the Closing Date (the "Share
Transfers"), unless and until this Agreement shall have been
terminated in accordance with its terms, no Stockholder shall directly
or indirectly enter into any contract or binding commitment to sell,
exchange, deliver, assign, pledge, encumber or otherwise transfer or
dispose of any Company Shares, nor shall any Stockholder directly or
indirectly enter into any contract or binding commitment or grant any
right of any kind to acquire, dispose of, vote or otherwise control in
any manner any Company Shares. The Company has accrued or will accrue
prior to the Closing Date an amount estimated by the Company to
constitute compensation to the Stockholders as a result of the Share
Transfers (approximately $10,000,000 in the aggregate).
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(l) Section 5.3 of the Purchase Agreement is deleted in its entirety.
(m) Section 5.5 of the Purchase Agreement is deleted in its entirety.
(n) Section 6.3 of the Purchase Agreement is deleted in its entirety.
(o) Section 7.1 of the Purchase Agreement is deleted in its entirety and
is replaced by the following:
Offering Document. The parties shall cooperate in the preparation
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and, if required, filing with the SEC of the Offering Document with
respect to the Offering and, in the case of a registration statement
under the Securities Act, will use all reasonable efforts to have such
registration statement declared effective by the SEC as promptly as
practicable.
(p) Section 7.3 of the Purchase Agreement is deleted in its entirety and
is replaced by the following:
Tax Returns. With respect to any tax years ending prior to the
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Closing Date (each, a "Pre-Closing Year") and the short tax year
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ending as of the Closing Date (the "Short Year"), Xxxxx X. Xxxxxx will
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cause the tax returns to be prepared and, in the event of an IRS audit
of (i) the fiscal year ended on October 30, 1997, (ii) any Pre-
Closing-Year, or (iii) the Short Year, Xx. Xxxxxx, so long as he is an
employee of the Company, will represent the Company in such audits.
Xx. Xxxxxx'x representation of the Company in such audits and his
preparation of any Pre-Closing Year and the Short Year tax returns
will, however, be subject to review and approval by the Company. With
respect to any Pre-Closing Year and the Short Year, an election to
waive carryback under Section 172(b)(3) of the Code will not be made.
(q) Section 7.6 of the Purchase Agreement is deleted in its entirety and
is replaced by the following:
Sale of Real Estate. The Company has accrued or will accrue prior to
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the Closing Date an amount for payments to certain employees equal to
the net proceeds (including following payment of all mortgages) to the
Company from the sale of the Charlotte Real Estate (the "Real Estate
Bonuses"). The parties hereto agree that the sale of the Charlotte
Real Estate shall occur on or subsequent to the Closing Date. Buyer
shall pay, or cause the Company to pay, the aggregate amount of the
Real Estate Bonuses no later than the ninetieth (90th) day after the
end of the calendar month in which the Closing occurs. Subject to the
foregoing, the Real Estate Bonuses shall be paid to such employees and
in such
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amounts as the Stockholders' Representative shall designate to Buyer
in a schedule delivered no later than ten (10) days prior to the
Closing Date.
(r) Section 7.7 of the Purchase Agreement is deleted in its entirety and
is replaced by the following:
Tax Refund. The Company has accrued or will accrue prior to the
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Closing Date an amount for payment to certain employees equal to the
aggregate amount expected to be received by the Company as refunds
with respect to the Company's federal and state income tax returns for
the Company's fiscal years ended October 31, 1996, 1997 and 1998.
Buyer shall pay, or cause the Company to pay, the actual amount
received by the Company as refunds with respect to the Company's
federal and state income tax returns for the Company's fiscal years
ended October 31, 1996, 1997 and 1998 (the "Tax Refund Bonuses"). The
Tax Refund Bonuses shall be paid no later than the date on which the
Company has received all state and federal tax refunds which determine
the amount of the Tax Refund Bonuses. Subject to the foregoing, the
Tax Refund Bonuses shall be paid to such employees and in such amounts
as the Stockholders' Representative shall designate to Buyer in a
schedule delivered no later than ten (10) days prior to the Closing
Date.
(s) Section 8.1(c) of the Purchase Agreement is deleted in its entirety
and is replaced by the following:
Registration Statement. If Buyer is consummating an initial public
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offering of shares of common stock, $.01 par value per share, of Buyer
("Buyer Common Stock") to finance the transaction contemplated hereby,
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the registration statement relating to such initial public offering
shall have become effective under the Securities Act and no stop order
suspending the effectiveness of such registration statement shall have
been issued and no proceedings for that purpose shall have been
initiated or threatened by the SEC.
(t) Section 8.1(d) of the Purchase Agreement is deleted in its entirety.
(u) Section 8.1(e) of the Purchase Agreement is deleted in its entirety.
(v) Section 8.2(a) of the Purchase Agreement is deleted in its entirety.
(w) Section 8.2(f) of the Purchase Agreement is deleted in its entirety
and is replaced by the following:
Opinions of Counsel. On the Closing Date, Buyer shall have received
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from (i) Xxxxx & Xxx Xxxxx, PLLC, counsel for the Company, an opinion
as of said
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date, in the form attached hereto as Exhibit E, and (ii) Xxxxxxxx,
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Xxxxxxx & Xxxx, P.A., counsel for the Stockholders, an opinion as of
said date, in the form attached hereto as Exhibit F, which opinions
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shall provide that they may be relied upon by the managing
underwriters or placement agent of the Offering.
(x) Section 8.2(g) of the Purchase Agreement is deleted in its entirety.
(y) Section 8.2(l)(ii) of the Purchase Agreement is deleted in its
entirety and is replaced by the following:
The Company's historical financial statements shall, in the opinion of
Buyer's independent public accountants, be suitable or readily
adaptable for incorporation in (A) any Offering Document and (B)
annual reports on Form 10-K to be filed by Buyer in the future under
the Exchange Act.
(z) A new Section 8.2(m) is added to the Purchase Agreement to read in its
entirety as follows:
(m) Salary Expense Ratio. The Company shall have used all
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commercially reasonable efforts to reduce the ratio of aggregate
salary expense (including bonus) to aggregate commission income for
the Company and its Subsidiaries, excluding the Mid-Atlantic division,
to fifty-three percent (53%) or less by the earlier of (i) the Closing
Date or (ii) December 31, 1998, and to maintain such level through the
Closing Date. For the purposes of this Section 8.2(m), "salary
expense" and "commission income" shall be on an annualized basis and
shall be based on the Company's most recent estimate of salaries and
commissions as provided to Buyer from time to time, including the pro
forma adjustments for the contemplated departure of Xxxx Xxxxxx, Xx.
and the contemplated buyout of X.X. Xxxxx and other associates
employed by Xxxxxx-American Company of Florida, Inc.
(aa) Section 8.3(a) of the Purchase Agreement is deleted in its entirety.
(bb) Section 8.3(e) of the Purchase Agreement is deleted in its entirety.
(cc) 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;
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(b) by the Company or the Stockholders' Representative, 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 five
(5) business days after the Company or the Stockholders'
Representative, as applicable, shall have given written notice of such
breach to Buyer; or (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 or
the Stockholders' Representatives, as applicable, shall have given
written notice thereof to Buyer; or (iii) if by November 30, 1998 (the
"Termination Date"), any of the conditions in Section 8.1 or Section
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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 action
or failure to act on the part of the Company or any Stockholder) and
the Company and the Stockholders shall not have waived such failure of
satisfaction, noncompliance or nonperformance, provided, that in the
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event that, on or prior to November 30, 1998, Buyer delivers to the
Stockholders' Representative a commitment letter from a bona fide
third party providing for financing sufficient to fund the Total
Consideration, the Termination Date shall be extended to December 31,
1998; or
(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 five (5) business days after Buyer shall have given written
notice of such breach to the Company and, if applicable, such
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Stockholder; or (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 November 30, 1998 (the "Termination Date"),
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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 action or failure to act
on the part of Buyer) and Buyer shall not have waived such failure of
satisfaction, noncompliance or nonperformance, provided, that in the
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event that, on or prior to November 30, 1998, Buyer delivers to the
Stockholders' Representative a commitment letter from a bona fide
third party providing for financing sufficient to fund the Total
Consideration, the Termination Date shall be extended to December 31,
1998.
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(dd) Section 9.3 of the Purchase Agreement is deleted in its entirety and
is replaced by the following:
Right to Proceed. Anything in this Agreement to the contrary
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notwithstanding, if any of the conditions specified in Section 8.1 or
Section 8.2 hereof have not been satisfied, Buyer shall have the right
to proceed with the transactions contemplated hereby without waiving
any of its rights hereunder, and if any of the conditions specified in
Section 8.1 or Section 8.3 hereof have not been satisfied, the Company
and the Stockholders shall have the right to proceed with the
transactions contemplated hereby without waiving any of their
respective rights hereunder; provided, however, if the condition
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specified in Section 8.2(m) hereof has not been satisfied and Buyer
nevertheless proceeds with consummation of the transactions
contemplated hereby, Buyer shall have no right to bring a claim based
on any failure of the condition contained in Section 8.2(m).
(ee) Section 10.2(c) of the Purchase Agreement is deleted in its entirety
and is replaced by the following:
(c) any liability of the Company or any Subsidiary for Taxes relating
to periods ending on or prior to the Closing or arising from an event
or transaction occurring prior to the Closing or as a result of the
Closing, including, without limitation, any increase in Taxes due to
the unavailability of any loss or deduction claimed by the Company or
any Subsidiary, but excluding income Taxes for the Company's short tax
year ending on the Closing Date (the "1999 Tax Year"), which is
covered in Subsection (d) below;
(ff) Section 10.2(d) of the Purchase Agreement is deleted in its entirety
and is replaced by the following:
(d) any liability of the Company or any Subsidiary for income Taxes
relating to the 1999 Tax Year, or arising from an event or transaction
occurring during the 1999 Tax Year, including, without limitation, any
increase in Taxes due to the unavailability of any loss or deduction
claimed by the Company or any Subsidiary (collectively, "1999 Tax
Losses");
(gg) Sections 10.2(h) and (i) of the Purchase Agreement are deleted in
their entirety and are replaced by the following:
(h) Losses arising out of, resulting from or based upon the litigation
currently pending in the Superior Court
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of Xxxx County, State of Georgia, Civil Action File No. 000-0000-00,
as disclosed on
Schedule 2.16 hereto, but only to the extent such Losses exceed
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$100,000;
(i) 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
(hh) A new Section 10.2(j) is added to the Purchase Agreement to read in
its entirety as follows:
(j) Losses arising out of, resulting from or based upon the matters
set forth in Schedule 10.2 hereto.
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(ii) The penultimate paragraph of Section 10.2 of the Purchase Agreement is
deleted in its entirety and is replaced by the following:
Claims under clauses (a) through (j) 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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(jj) Section 10.3(a) of the Purchase Agreement is deleted in its entirety
and is replaced by the following:
Escrow. Subject to the exceptions set forth in Sections 10.3(c) and
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10.3(e) below, all Buyer Indemnifiable Claims and Buyer Indemnifiable
Losses shall be satisfied solely from the Escrow Amount held in escrow
pursuant to the Escrow Agreement.
(kk) Section 10.3(c) of the Purchase Agreement is deleted in its entirety
and is replaced by the following:
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 Escrow Amount, (iv) shall, to the extent that the
Escrow Amount is insufficient to satisfy any Loss, be entitled to
claim directly against any Stockholder to the extent of such
Stockholder's Proportionate Share of such Loss 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:
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(i) Losses involving a breach by the Company or any Stockholder
of any of the representations and warranties contained in Sections
2.3, 2.8 (other than Taxes relating to the 1999 Tax Year, which are
addressed in Section 10.3(e)) and 3.1; or
(ii) Buyer Indemnifiable Losses described in Sections 10.2(a),
(c), (f) and (i).
In addition, notwithstanding anything herein to the contrary,
Buyer Indemnifiable Losses arising under Section 10.2(j) (including
for this purpose only costs and expenses of the Stockholders as the
indemnifying parties in conducting a defense pursuant to Section
10.6(b), which costs and expenses shall be paid out of the Escrow
Amount) shall not be subject to the Deductible Amount and shall be
indemnifiable from the first dollar.
(ll) Section 10.3(e) of the Purchase Agreement is deleted in its entirety
and is replaced by the following:
1999 Tax Losses. Notwithstanding anything in this Section 10.3 to the
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contrary, Buyer Indemnifiable Losses described in Section 10.2(d)
shall be indemnifiable as follows:
(i) an amount of such Buyer Indemnifiable Losses equal to the
aggregate amount of the Tax Refund Bonuses shall be indemnified from
the first dollar without regard to the Deductible Amount by recourse
to the Escrow Amount and, to the extent that the Escrow Amount is
insufficient to satisfy any Loss, the Buyer Indemnified Parties shall
be entitled to claim directly against any Stockholder to the extent of
such Stockholder's Proportionate share of such Loss;
(ii) if such Buyer Indemnifiable Losses exceed the aggregate
amount of the Tax Refund Bonuses, the first $400,000 of such excess
shall not be subject to indemnification hereunder; and
(iii) if such Buyer Indemnifiable Losses exceed the aggregate
amount of the Tax Refund Bonuses by more than $400,000, such excess
over $400,000 shall be indemnified by recourse to the Escrow Amount
and, to the extent that the Escrow Amount is insufficient to satisfy
any Loss, the Buyer Indemnified Parties shall be entitled to claim
directly against any Stockholder to the extent of such Stockholder's
Proportionate share of such Loss, subject to an aggregate limit of
$1,550,000.
(mm) Section 11.1 of the Purchase Agreement is deleted in its entirety and
is replaced by the following:
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Alternative Structure. Notwithstanding anything to the contrary
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contained in this Agreement, prior the Closing, Buyer shall be
entitled to revise the structure of the sale of the Company Shares and
related transactions provided that each of the transactions describing
such revised structure shall (a) not change the amount of
consideration to be received by such Stockholders, (b) be capable of
consummation in as timely a manner as the structure contemplated
herein, (c) not change adversely the tax consequences to the
Stockholders of the sale of the Company Shares and (d) not otherwise
be prejudicial to the interests of Stockholders or employees of the
Company. This Agreement and any related documents shall be
appropriately amended in order to reflect any such revised structure.
(nn) Section 11.10 to the Purchase Agreement is deleted in its entirety and
is replaced by the following:
Publicity and Disclosures. No press releases or public disclosure,
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either written or oral, of the transactions contemplated by this
Agreement, shall be made by a party to this Agreement without the
prior knowledge and written consent of Buyer and the Company.
Notwithstanding the foregoing, neither the filing nor distribution of
any Offering Document (or any other document filed with any public
official in connection with the Offering), nor the distribution of the
related prospectus (whether in preliminary or final form), nor any
selling activity conducted by Buyer, the underwriters or any placement
agent in connection with the Offering, including without limitation
those conducted as part of the so-called road show, shall be construed
as press releases or public disclosure requiring the prior approval of
the Company.
(oo) Schedule 2.31 (Transfer of Shares) to the Purchase Agreement is
deleted in its entirety and is replaced by Schedule 2.31 attached hereto.
(pp) A new Schedule 10.2 is added to the Purchase Agreement to read in its
entirety as Schedule 10.2 attached hereto.
(qq) Exhibit A (List of Stockholders) to the Purchase Agreement is deleted
in its entirety and is replaced by Exhibit A attached hereto.
(rr) Exhibit B (Allocation of Total Consideration) to the Purchase
Agreement is deleted in its entirety and is replaced by Exhibit B attached
hereto.
(ss) Exhibit C (Form of Indemnification Escrow Agreement) to the Purchase
Agreement is deleted in its entirety and is replaced by Exhibit C attached
hereto.
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(tt) Exhibit D (Form of Registration Rights Agreement) to the Purchase
Agreement is deleted in its entirety.
(uu) Exhibit G (Form of Employment and Noncompetition Agreement) to the
Purchase Agreement is deleted in its entirety and is replaced by Exhibit G
attached hereto.
(vv) Exhibit I (Form of Opinion of Xxxxxxx, Procter & Xxxx LLP) to the
Purchase Agreement is deleted in its entirety and is replaced by Exhibit I
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 North Carolina 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]
12-A
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
XXXXXX-AMERICAN COMPANY, INC.
/s/ Xxxxxx X. Xxxxxx, Xx.
By:_________________________________
Xxxxxx X. Xxxxxx, Xx.
Chairman/CEO
STOCKHOLDERS' REPRESENTATIVE
/s/ Xxxxxx X. Xxxxxx, Xx.
____________________________________
Xxxxxx X. Xxxxxx, Xx., as
Stockholder Representative
12-B
STOCKHOLDERS
------------
/s/ Xxxx X. Xxxxx, Xx.
_________________________________
Xxxx X. Xxxxx, Xx.
00000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
/s/ Xxxxx X. Xxxxxxxxxx
__________________________________
Xxxxx X. Xxxxxxxxxx
0000 Xxxxxxxxxxx Xxxxx
Xxxx Xxxx, XX 00000
/s/ Xxxxx X. Xxxxxx
__________________________________
Xxxxx X. Xxxxxx
00000 Xxxx Xxxxxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
/s/ Xxxxxx X. Xxxxxxx
__________________________________
Xxxxxx X. Xxxxxxx
0000 Xxxxxxxx Xxxxx Xxxxxx
Xxxxx, XX 00000
/s/ Xxxxxxx X. Xxxxxxxx
__________________________________
Xxxxxxx X. Xxxxxxxx
0000 Xxxxxxxxxx Xxxxxxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
/s/ E. Xxx Xxxxxxx
__________________________________
E. Xxx Xxxxxxx
00000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
/s/ Xxxxxx X. Xxxxxxxxx, Xx.
__________________________________
Xxxxxx X. Xxxxxxxxx, Xx.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
13
/s/ Xxxxxx X. Xxxxxxxxx, Xx.
__________________________________
Xxxxxx X. Xxxxxxxxx, Xx.
0000 Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
/s/ Xxxxxxx X. Xxxxxxx
___________________________________
Xxxxxxx X. Xxxxxxx
000 Xxxx Xxxxx Xxx
Xxxxxxxxxx, XX 00000
/s/ Xxxxxx X. Xxxxx
____________________________________
Xxxxxx X. Xxxxx
#00 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
/s/ Xxxxxx X. Xxxxxx, Xx.
__________________________________
Xxxxxx X. Xxxxxx, Xx.
0000 Xxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
/s/ Xxxxxx X. Xxxxxx, III
__________________________________
Xxxxxx X. Xxxxxx, III
0000 Xxxx Xxxxx Xxxxxx
Xxxxx, XX 00000
14
EXHIBIT A
[as amended, pursuant to Amendment No. 1 to Stock Purchase Agreement]
LIST OF STOCKHOLDERS
--------------------
Name of Stockholder Current Closing Percentage of Outstanding
Ownership Ownership Common Stock Owned at
Closing
--------------------------------------------------------------------------------
Xxxxxx X. Xxxxxx, Xx. 580 339.22 35.498%
Xxxxxx X. Xxxxxxxxx, 289 149.10 15.603%
Sr.
Xxxx X. Xxxxx, Xx. 10 46.60 4.876%
Xxxxx X. Xxxxxxxxxx 10 46.60 4.876%
Xxxxx X. Xxxxxx 10 46.60 4.876%
Xxxxxx X. Xxxxxxx 10 46.60 4.876%
Xxxxxxx X. Xxxxxxxx 14 137.92 14.433%
E. Xxx Xxxxxxx 10 46.60 4.876%
Xxxxxx X. Xxxxxxxxx, 10 46.60 4.876%
Jr.
Xxxxxx X. Xxxxxx, III 10 46.60 4.876%
Xxxxxxx X. Xxxxxxx 1.35 1.64 0.172%
Xxxxxx X. Xxxxx 1.25 1.52 0.159%
------ ------ -------
TOTAL: 955.60 955.60 100.00%
EXHIBIT B
---------
[as amended, pursuant to Amendment No. 1 to Stock Purchase Agreement]
ALLOCATION OF TOTAL CONSIDERATION/1/ AMONG STOCKHOLDERS
XXXXXX-AMERICAN COMPANY, INC.
TOTAL PROPORTIONATE
CASH CONSIDERATION ESCROW SHARE/2/
---------------------------------------------------------------------------------
Xxxxx X. Xxxxxxxxxx $ 1,250,000 $ 1,250,000 $ 75,832 4.892%
---------------------------------------------------------------------------------
Xxxx X. Xxxxx, Xx. 1,250,000 1,250,000 75,832 4.892%
---------------------------------------------------------------------------------
E. Xxx Xxxxxxx 1,250,000 1,250,000 75,832 4.892%
---------------------------------------------------------------------------------
Xxxxx X. Xxxxxx 1,250,000 1,250,000 75,832 4.892%
---------------------------------------------------------------------------------
Xxxxxx X. Xxxxxx, III 1,250,000 1,250,000 75,832 4.892%
---------------------------------------------------------------------------------
Xxxxxx X. Xxxxxxxxx, Xx. 1,250,000 1,250,000 75,832 4.892%
---------------------------------------------------------------------------------
Xxxxxx X. Xxxxxxx 1,250,000 1,250,000 75,832 4.892%
---------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxxx 3,700,000 3,700,000 224,462 14.481%
---------------------------------------------------------------------------------
Xxxxxx X. Xxxxxx, Xx. 9,100,000 9,100,000 552,054 35.616%
---------------------------------------------------------------------------------
Xxxxxx X. Xxxxxxxxx, Xx. 4,000,000 4,000,000 242,660 15.656%
---------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxx 44,135 44,135 N/A N/A
---------------------------------------------------------------------------------
Xxxxxx X. Xxxxx 40,865 40,865 N/A N/A
---------------------------------------------------------------------------------
Total $25,635,000 $25,635,000 $1,550,000 100%
---------------------------------------------------------------------------------
______________________
/1/ The amounts set forth under cash are subject to reduction pursuant to
the terms and provisions of Sections 1.2 and 1.8 of the Purchase Agreement, as
amended by the Amendment.
/2/ Excludes consideration allocated to Macalka and Xxxxx.
