Exhibit 10.3
AMENDMENT TO
STOCK PURCHASE AGREEMENT
BY AND AMONG
CENTURY PARTNERS GROUP, LTD.
(a Florida limited partnership)
BUYER,
AND
CHAI CAPITAL, LTD.
(a Florida limited partnership)
and
XXXXXXX HOMEBUILDERS INCORPORATED
(a Florida corporation),
SELLERS
AMENDMENT TO STOCK PURCHASE AGREEMENT
-------------------------------------
AGREEMENT, dated as of this 28th day of July, 1999 (the "Agreement"), is
entered into by and among CHAI CAPITAL, LTD., a Florida limited partnership
("Seller" or "Chai"); XXXXXXX HOMEBUILDERS INCORPORATED, a Florida corporation
(the "Company" or 'Xxxxxxx"); and CENTURY PARTNERS GROUP, LTD., a Florida
limited partnership ("Buyer" or "Century").
W I T N E S S E T H:
-------------------
WHEREAS, the parties hereto have entered into that certain Stock Purchase
Agreement (the "Stock Purchase Agreement"), dated as of June 22, 1999, pursuant
to which, among other things, Century was purchasing from the Company an
aggregate 22,123,893 shares of the Company's Class A Common Stock (the "Xxxxxxx
Shares"), in consideration for an aggregate $25,000,000;
WHEREAS, in accordance with the terms of the Stock Purchase Agreement, the
Xxxxxxx Shares were issued and placed in escrow together with the consideration
for such Xxxxxxx Shares (and which consideration consisted of a promissory note
in the aggregate principal amount of $24,778,761.07 (the "Century Note"), and
cash in the aggregate amount of $221,238.93, representing the aggregate par
value for such shares of Class A Common Stock);
WHEREAS, the Xxxxxxx Shares and the consideration paid by Century for such
Xxxxxxx Shares were to be released from escrow upon the consummation of the
transactions contemplated by the Stock Purchase Agreement;
WHEREAS, in accordance with the terms of the Stock Purchase Agreement and
that certain Security Agreement (the "Security Agreement"), entered into by and
between Century and the Company, Century was to pledge certain assets to the
Company to secure the Century Note, and which assets were to be identified and
included in a schedule to such Security Agreement; and
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WHEREAS, to date, Century has not provided such schedule to the Company,
and in lieu of expending resources in ascertaining the identity and value of
such assets to be pledged, and for other reasons, including, the agreement by
Chai and Xxxxxxx, as set forth in the Stock Purchase Agreement to restructure
the transactions contemplated therein to accommodate certain interests of
Century, the parties hereto are each willing to amend the Stock Purchase
Agreement to provide for the elimination of the issuance of the Xxxxxxx Shares
to Century and the corresponding elimination of the issuance and delivery of the
Xxxxxxx Note and Security Agreement by Century to the Company, and to provide
for the issuance of certain options, as described below, by the Company to
Century to purchase shares of the Company's Class A Common Stock, upon the terms
and conditions contained hereinafter.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
contained herein, and intending to be legally bound hereby, the parties hereto
hereby agree as follows:
I. AMENDMENT OF STOCK PURCHASE AGREEMENT.
-------------------------------------
1.1 The parties hereto hereby agree and acknowledge that to the extent
set forth herein, the Stock Purchase Agreement, and all of the exhibits and
ancillary documentation attached thereto or referred to therein is hereby
amended. To the extent of any inconsistency between this Agreement and the
Stock Purchase Agreement, and/or the exhibits and/or ancillary documentation
referred to therein, this Agreement shall govern.
II. XXXXXXX SHARES; CENTURY NOTE.
----------------------------
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2.1 The parties hereto agree and acknowledge that, in accordance with the
terms and conditions of the Stock Purchase Agreement, the Xxxxxxx Shares and the
consideration paid by Century therefor were only to be released from escrow upon
the consummation of the transactions contemplated by the Stock Purchase
Agreement. The parties hereto further agree and acknowledge that the conditions
of closing, as set forth in and contemplated by the Stock Purchase Agreement,
relating to the delivery of the schedule of assets to the Security Agreement,
identifying those assets to be pledged by Century to the Company to secure the
Century Note, will not be effectuated, and accordingly, the Xxxxxxx Shares and
the consideration paid therefore can only be released in accordance with the
Stock Purchase Agreement, to the parties who initially delivered the same to be
maintained in escrow. Accordingly, the parties hereto hereby agree that the
Xxxxxxx Shares shall be released from escrow as of the date hereof and returned
to Xxxxxxx for cancellation and the Century Note shall be released back to
Century as of the date hereof for cancellation. The parties hereto further
agree that the cash consideration paid by Century for the Xxxxxxx Shares,
including accrued interest thereon, shall be continued to be maintained in
escrow, and shall be considered part of the Deposit, as defined in the Stock
Purchase Agreement, and shall be released from escrow at the same time and upon
satisfaction of the same conditions as govern the release of the $278,761.07
initially placed in escrow as the initial Deposit by Century. Accordingly, the
amount of the Deposit, as defined in the Stock Purchase Agreement, is hereby
amended to include the initial Deposit of $278,761.07 plus the additional amount
of $221,238.93, referred to above, plus accrued interest.
2.2 The parties hereto hereby further agree and acknowledge that since the
terms of the escrow governing the Xxxxxxx Shares and the Century Note could
never be satisfied, and since such escrow requires that the Xxxxxxx Shares be
returned to the Company for cancellation and the Century
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Note be returned to Century for cancellation, the cancellation of the Xxxxxxx
Shares and the return and cancellation of the Century Note shall be deemed to
have occurred ab initio, such that the Xxxxxxx Shares and Century Note shall be
deemed never to have been issued and/or shall be deemed never to have been
outstanding.
III. OPTIONS.
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3.1 The parties hereto hereby agree that effective as of the Closing Date,
as defined in the Stock Purchase Agreement, the Company shall issue options (the
"Options"), to Century in consideration for the cash payment of $1,130,998, to
purchase an aggregate 22,123,893 shares of the Company's Class A Common Stock
(the "Option Shares"). The Options may be exercised into Option Shares at any
time prior to the expiration thereof, at an exercise price of $1.13 per share of
the Company's Class A Common Stock. 12,123,893 of said Options shall expire on
September 2, 1999, and 5,000,000 of said Options shall expire on November 2,
1999, and the balance (5,000,000) shall expire on February 2, 2000.
3.2 The parties hereto further agree and acknowledge that the issuance and
delivery of the Options, in substantially the form and substance as set forth in
Exhibit A, attached hereto and incorporated herein by reference and the payment
of the consideration described above by Century for such Options, shall be a
condition to closing of the transactions contemplated by the Stock Purchase
Agreement.
IV. MISCELLANEOUS.
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4.1 This Agreement may be amended, modified or supplemented at any time,
but only by written agreement of the parties hereto. Any failure of Chai,
Century, or Xxxxxxx to comply with any term or provision of this Agreement may
be waived, to the extent permitted by applicable law,
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by the other party(s) at any time by an instrument in writing signed by or on
behalf of such other party, but such waiver or failure to insist upon strict
compliance with such term or provision shall not operate as a waiver of, or
estoppel with respect to, any subsequent or other failure to comply, or any
other term or provision.
4.2 Should any provision of this Agreement, or any clause thereof, for any
reason be determined to be invalid or unenforceable, such determination shall
not affect the validity or enforceability of any other provision of this
Agreement, or any clause thereof, which other provisions and clauses shall
remain in full force and effect, and the application of such invalid or
unenforceable provision, or such clause thereof, to persons or circumstances
other than those as to which it is held invalid or unenforceable shall be valid
and be enforced to the fullest extent permitted by applicable law.
4.3 This Agreement and all of the provisions hereof shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns, provide that neither this Agreement nor any of the
rights, interests or obligations hereunder may be assigned, directly or
indirectly, by any party without the prior written consent of the other
party(s) hereto.
4.4 This Agreement is not intended and shall not be deemed to confer upon
or give any person, except the parties hereto and their respective successors
and permitted assigns, any remedy, claim, liability, reimbursement, cause of
action or other right under or by reason of this Agreement.
4.5 This Agreement may be executed simultaneously in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
4.6 The article and section headings contained in this Agreement are
solely for the purpose of reference, are not part of the agreement of the
parties and shall not in any way affect the
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meaning or interpretation of this Agreement. No party to this Agreement shall be
considered the draftsman of this Agreement and the Exhibit hereto.
4.7 This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Florida, without reference to principles of conflicts
of law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
CHAI:
CHAI CAPITAL, LTD.
a Florida limited partnership
By: CHAI CAPITAL CORP., a Florida corporation,
as general partner
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------
Xxxxxxx Xxxxxxxx, President
BUYER:
CENTURY PARTNERS GROUP, LTD.
a Florida limited partnership
By: CENTURY ENTERPRISES GROUP, INC. a
Florida corporation, as general partner
By: /s/ Xxxxxx Xxxx
--------------------------------------
Xxxxxx Xxxx, President
XXXXXXX:
XXXXXXX HOMEBUILDERS, INCORPORATED
a Florida corporation
By: /s/ Xxxxx Xxxxxxx
------------------------------------------
Xxxxx Xxxxxxx, President
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EXHIBIT A
---------
OPTION AGREEMENT
----------------
AGREEMENT, made as of the ____ day of August, 1999, by and between Xxxxxxx
Homebuilders Incorporated, a Florida corporation, having its principal place of
business at 00000 Xxxxxxxx Xxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxx 00000
("Company"), and Century Partners Group, Ltd., a Florida limited partnership
("Optionee").
W I T N E S S E T H:
-------------------
WHEREAS, the Company, the Optionee and Chai Capital Ltd. are parties to
that certain Stock Purchase Agreement dated as of June 22, 1999, and the
Amendment thereto, dated as of July 28, 1999 (the "Amendment"); and
WHEREAS, pursuant to the terms of such Amendment, the Company has granted
to Optionee options to purchase shares of the Company's Class A Common Stock for
the aggregate cash consideration set forth in such Amendment.
NOW, THEREFORE, in consideration of the mutual premises contained herein,
the parties hereto hereby agree as follows:
1. Options.
The Company hereby grants to Optionee an aggregate Twenty Two Million One
Hundred Twenty Three Thousand Eight Hundred Ninety Three (22,123,893) options
(the "Options"), to purchase in the aggregate a like number of shares of the
Company's Class A Common Stock (the "Shares"), par value $.01 per Share. Each
Option shall entitle the Optionee to purchase one Share, except as otherwise
provided herein.
2. Exercise Price.
The exercise price per Option shall be $1.13 per Share. The exercise price
may be paid in cash or may be satisfied by the tendering or conveyance to the
Company of assets, including real estate assets and/or partnership interests,
owned by Optionee, having a fair market value equal to the exercise price of the
Options then being exercised. "Fair market value" as used in this Paragraph
shall refer to the fair market value as (a) determined by an appraiser and/or
(b) as determined by the Company's Board of Directors and which Board of
Directors may consider in reaching any such determination various factors,
including any third party bona fide offer to purchase and/or otherwise acquire
such assets.
3. Exercise of Options.
a. The Options may be exercised commencing as of the date hereof in whole
or in part through the following expiration dates: Twelve Million One
Hundred Twenty Three Thousand Eight Hundred Ninety Three (12,123,893)
Options shall expire at 11:59 p.m., Miami, Florida time, on September 2,
1999, Five Million (5,000,000) Options shall expire at 11:59 p.m.,
Miami, Florida time, on November 2, 1999, and Five Million Options
(5,000,000) shall expire at 11:59 p.m., Miami, Florida time, on February
2, 2000. Such Option expiration dates shall be extended in the event of
and for so long as any such exercise of such Options is delayed or
prevented by force majeure ("Force Majeure"), which shall mean acts of
God, labor disputes (whether lawful or not), civil riots, floods, and
any other cause not reasonably within the control of the Optionee and/or
the Company.
b. Optionee shall notify the Company in writing as to the exercise of the
Options herein granted, which notice shall be accompanied by payment of
the exercise price. As soon as practicable thereafter, the Company shall
cause to be issued to Optionee certificates evidencing the Shares
purchased by Optionee.
4. Shares as Investment.
By accepting these Options, Optionee agrees for itself and its assigns that
the Options and any and all Shares issuable hereunder upon exercise of the
Options are being acquired for investment purposes only and not with the view
toward the further distribution thereof, and upon the issuance of any or all of
the Shares upon the exercise of the Options granted hereunder, Optionee, or its
heirs, personal representatives, successors or assigns receiving such Shares,
shall deliver to the Company a representation in writing that such Shares are
being acquired for investment purposes only and without the intent toward the
further distribution thereof. Optionee further acknowledges that the Options
and the Shares issuable upon exercise thereof have not been registered under the
Securities Act of 1933, as amended, or any state securities laws, and
accordingly, the ability of the holder thereof to sell, assign and/or dispose of
the same may be severely limited. In addition, Optionee hereby further
acknowledges that the Company will place a "stop transfer" order with respect to
any such Shares with its transfer agent and will place an appropriate
restrictive legend on the certificates evidencing any such Shares.
5. Adjustments Upon Changes in Capitalization.
a. In the event of changes in the outstanding Common Stock of the Company
by reason of stock dividends, stock splits, recapitalizations, mergers,
consolidations, combinations, or exchanges of shares, separations,
reorganizations, or liquidations, the number of shares as to which the
Options may be exercised shall be correspondingly adjusted by the
Company, and the exercise price shall be also correspondingly adjusted.
No adjustment shall be made with respect to cash
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dividends, distributions, or the issuance to shareholders of the Company
of rights to subscribe for additional shares of Common Stock or other
securities. No adjustment shall be required hereunder in the event the
Company modifies or changes the rate of conversion of one Class of its
Common Stock into another Class.
b. Any adjustment in the number of shares shall apply proportionately to
only the unexercised portion of the Options granted hereunder. If
fractions of a share would result from any such adjustment, the
adjustment shall be revised to the next higher whole number of Shares.
6. Restriction on Issuance of Shares.
The Company shall not be required to issue or deliver any certificate for
Shares purchased upon the exercise of any Options unless: (a) the issuance of
such Shares has been registered with the Securities and Exchange Commission
under the Act, or counsel to the Company shall have given an opinion that such
registration is not required; (b) approval, to the extent required, shall have
been obtained from any state regulatory body having jurisdiction thereof; and
(c) permission for the listing of such Shares shall have been given by any
national securities exchange or inter-quotation dealer system on which the
Common Stock of the Company is at the time of issuance listed.
7. No Rights as Shareholder.
Optionee shall have no rights as a shareholder in respect of Shares as to
which the Options granted hereunder shall not have been exercised and payment
made as herein provided.
8. Binding Effect.
Except as herein otherwise expressly provided, this Agreement shall be
binding upon and inure to the benefit of the parties hereto, their successors,
personal representatives, successors and assigns.
9. Miscellaneous.
This Agreement shall be construed under the laws of the State of Florida,
without application of the principles of conflicts of laws. Headings have been
included herein for convenience of reference only, and shall not be deemed a
part of the Agreement. This Agreement may not be assigned by any party hereto
without the prior written consent of the other party hereto. This Agreement
constitutes the entire agreement among the parties and supersedes any prior
understandings, agreements, or representations by or among the parties, written
or oral, that may have related in any way to the subject matter hereof. This
Agreement may not be amended, supplemented or modified in whole or in part
except by an instrument in writing signed by the party or parties against whom
enforcement of any such amendment, supplement or modification is sought.
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IN WITNESS WHEREOF, the parties have executed this Agreement as
of the day and year first above written.
XXXXXXX HOMEBUILDERS
INCORPORATED, a Florida corporation
By:
-------------------------------------
Xxxxx Xxxxxxx, President
OPTIONEE:
CENTURY PARTNERS GROUP, LTD, a
Florida limited partnership
By: CENTURY ENTERPRISES GROUP, INC.
a Florida corporation, as general partner
By:
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Xxxxxx Xxxx, President
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