FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
AND PLAN OF REORGANIZATION
THIS AGREEMENT, dated as of December 30, 1996, is made by and between IMC
Mortgage Company, a Florida corporation ("Buyer"), Mortgage America, Inc., a
Michigan Corporation ("MAI"), and Xxxxxx X. XxXxxxx, Xxxx X. Xxxx, Xxx XxXxxxx,
and Xxxxxx Xxxxxx (individually "Shareholder" and together, jointly and
severally, the "Shareholders") and Xxxxxx XxXxxxx as agent for Shareholders
("Shareholders' Agent").
FACTUAL BACKGROUND
A. The parties have entered into an Asset Purchase Agreement and Plan of
Reorganization dated as of December 14, 1996 (the "Purchase Agreement"),
pursuant to which Buyer will purchase all of the Business and substantially all
the assets of MAI.
B. The parties wish to modify the Purchase Agreement (i) to modify a
provision initially drafted in order to ensure that the transaction complied
with a technical NASDAQ rule regarding Shareholder approval, and (ii) to modify
the Purchase Price to take into consideration certain outstanding options issued
by MAI which will be assumed by Buyer.
AGREEMENT
In consideration of the mutual agreements contained herein, and for good
and valuable consideration, the parties hereto agree that the Purchase Agreement
is incorporated herein by this reference and amended and supplemented as set
forth hereinafter, effective as of the date hereof:
ARTICLE 1
Definitions
Section 1.1 Unless otherwise defined herein, the terms used in this
Agreement shall have the meaning ascribed to them in the Purchase Agreement.
ARTICLE 2
Contingent Payment/NASDAQ Rules
Section 2.1 Deletion of present provision. The following sentence contained
at the end of Section 3.5(e) (at page 16) of the Purchase Agreement is hereby
deleted in its entirety:
Moreover, in the event the Contingent Payment, combined with the Base
Payment and Matched Payment exceed the maximum amount of shares permitted
to be issued under NASDAQ rules without the approval of Buyer's
shareholders (in the opinion of Buyer's counsel), then Buyer shall pay the
maximum number of Exchange Shares permitted to be paid under NASDAQ rules
with the balance paid in cash.
Section 2.2 Substitute Sentence. The following sentence is hereby added to
the end of Section 3.5(e) (at page 16) of the Purchase Agreement:
Buyer covenants that it shall issue such additional common stock to
third parties (including stock issued pursuant to secondary offerings,
through acquisitions, private placements or otherwise) prior to the time of
the Contingent Payment hereunder, as may be necessary so that the amount of
the Contingent Payment, combined with the Base Payment and Matched Payment
will not exceed the maximum amount of shares permitted to be issued under
NASDAQ rules without the approval of the Buyer's shareholders.
ARTICLE 3
Purchase Price
Section 3.1 Assumption of Options. MAI has issued and outstanding options
to purchase 5,097 shares of MAI's common stock pursuant to the Mortgage America,
Inc. Stock Option Plan dated December 30 , 1996 (the "MAI Option Plan") which,
upon consummation of the Acquisition, will represent options to acquire 167,295
shares of Buyer's Common Stock. Buyer agrees to assume MAI's obligations under
such options and to treat the stock options issued by MAI as an option to
acquire Common Stock on the terms set forth in the MAI Option Plan.
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Section 3.2 Purchase Price Adjustment. In view of Buyer's agreement to
assume MAI's obligations under the MAI Option Plan, Buyer, MAI and the
Shareholders agree that the number of Exchange Shares issued for the Purchase
Price will be reduced by 79,465 Exchange Shares so that the Base Payment will be
895,535 Exchange Shares instead of 975,000 Exchange Shares as contemplated by
Section 3.4 of the Purchase Agreement.
ARTICLE 4
Miscellaneous
Section 4.1 Affirmation. Except to the extent modified herein, all
provisions of the Purchase Agreement shall remain in full force and effect.
Section 4.2 Counterparts. This Agreement may be executed by the parties in
separate counterparts, no one of which needs to be executed by all parties. This
Agreement shall be effective when executed and delivered by all parties. The
Agreement may be delivered by telecopier, with an original to follow by U.S.
Mail.
Section 4.3 Continuation of Prior Agreement. It is the intention of the
parties hereto that the Purchase Agreement previously executed by and between
the parties shall remain in full force and effect except to the extent
inconsistent with this Agreement.
EXECUTED as of the day and year first above written.
MORTGAGE AMERICA, INC.
By: [signature]
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Its: Chairman
2A
IMC MORTGAGE COMPANY
By: /s/ Xxxxxx Xxxxxxxx
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Its: CEO
/s/ XXXXXX X. XxXXXXX
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Xxxxxx X. XxXxxxx
/s/ XXXX X. XXXX
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Xxxx X. Xxxx
/s/ XXX XxXXXXX
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Xxx XxXxxxx
/s/ XXXXXX XXXXXX
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Xxxxxx Xxxxxx
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