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EXHIBIT (C)(2)
STOCK PURCHASE AND SALE AGREEMENT
THIS STOCK PURCHASE AND SALE AGREEMENT (this "Agreement") is entered
into as of this 6th day of July, 1999 by and among Xxxxxxx Xxxx Homes, Inc., a
California corporation ("Purchaser"), and The Chase Manhattan Bank, as Trustee
for First Plaza Group Trust ("Seller").
RECITALS:
WHEREAS, Purchaser, The Xxxxxxx Companies, a Delaware corporation
("Xxxxxxx-Del."), and Xxxxxxx Homes, a California corporation ("Xxxxxxx-Cal."),
are parties to a letter of intent dated May 3, 1999 attached hereto as Exhibit A
(the "Letter of Intent") which sets forth such parties' mutual, preliminary
understanding with respect to Xxxxxxx-Cal.'s proposed acquisition of
substantially all of the assets of Purchaser (the "Acquisition") and Purchaser's
proposal to acquire a portion of the outstanding shares of Common Stock of
Xxxxxxx-Del.; and
WHEREAS, the Letter of Intent contemplates that Purchaser will make
offers to the holders of Xxxxxxx-Del. Series B Common Stock (the "Series B
Offer") and a tender offer to the holders of the Xxxxxxx Del. Series A Common
Stock (the "Series A Offer") to purchase, for a cash purchase price of $0.655
per share, an aggregate number of shares of the Xxxxxxx Del. Common Stock which,
when added to the number of shares of Xxxxxxx-Del Common Stock already owned by
Purchaser and its affiliates (and after giving effect to dispositions of
Xxxxxxx-Del. Common Stock held by Purchaser and its affiliates as contemplated
in the Letter of Intent), will cause Purchaser and its affiliates to own an
aggregate of approximately 49% (but in no event more than 49.9%) of the shares
of Xxxxxxx-Del. Common Stock outstanding; and
WHEREAS, Seller owns shares of Xxxxxxx-Del. Series B Common Stock
and, as part of the Series B Offer, Seller and Purchaser desire to enter into
this Agreement to provide for the sale by Seller to Purchaser of 4,186,748
shares (subject to adjustment as provided herein) of such Series B Common Stock
on the terms and subject to the conditions set forth herein.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and the
representations, warranties and covenants set forth in this Agreement, the
parties agree as follows:
ARTICLE I
PURCHASE AND SALE
1.1 Purchase and Sale of Shares. At the Closing (as defined in
Section 1.3 of this Agreement), and on the terms and subject to the conditions
set forth in
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this Agreement, Seller agrees to sell, transfer and deliver to Purchaser, and
Purchaser hereby agrees to purchase and acquire from Seller, 4,186,748 shares of
Xxxxxxx-Del. Series B Common Stock (the "Shares") for a cash price of $0.655 per
share, or an aggregate purchase price of $2,742,319.94 (the "Purchase Price").
The number of Shares of Xxxxxxx-Del. Series B Common Stock to be purchased and
sold hereunder, and the aggregate Purchase Price to be paid therefor, shall be
subject to adjustment as provided in Section 4.1 and Section 7.12 of this
Agreement.
1.2 Deliveries at Closing. At the Closing, Seller shall deliver to
Purchaser the certificate or certificates representing the Shares, duly endorsed
for transfer to, or accompanied by duly executed stock powers in favor of,
Purchaser or its nominee, and otherwise in a form acceptable for transfer on the
books of Xxxxxxx-Del., against payment by Purchaser of the Purchase Price by
wire transfer of immediately available funds to the account specified on
Schedule 1.2 attached hereto.
1.3 Closing. Unless otherwise agreed by the parties hereto, the
closing of the transaction contemplated in this Article I (the "Closing") shall
take place at the offices of Purchaser at 9:00 a.m. Pacific time on the second
business day following the delivery by Purchaser to Seller of written notice to
the effect that the conditions set forth in Sections 5.3(c), 5.3(d) and 5.3(e)
of this Agreement have been satisfied or waived. The date on which the Closing
occurs is hereinafter referred to as the "Closing Date."
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF PURCHASER
Purchaser hereby represents and warrants to Seller as of the date of
this Agreement and as of the Closing Date as follows (it being understood and
agreed that Purchaser makes no representations or warranties in connection with
the purchase and sale of the Shares hereunder other than as set forth in this
Article II and in Section 7.10 hereof):
2.1 Due Incorporation; Authority. Purchaser has been duly
incorporated and is validly existing in good standing under the laws of the
State of California. Purchaser has the corporate power and corporate authority
to execute and deliver this Agreement and to perform its obligations hereunder.
The execution and delivery of this Agreement, and the performance of Purchaser's
obligations hereunder, have been duly authorized by all necessary corporate
action on the part of Purchaser.
2.2 Binding Obligation. This Agreement has been duly executed and
delivered by Purchaser, and constitutes the legal, valid and binding obligation
of Purchaser, enforceable in accordance with its terms against Purchaser, except
that (a) such enforcement may be limited by the effect of applicable bankruptcy,
reorganization, insolvency, moratorium or similar laws relating to or affecting
creditors rights generally; and (b) such enforcement may be limited by general
principles of equity, including concepts of materiality, reasonableness, good
faith and fair dealing and the
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possible unavailability of specific performance or injunctive relief, regardless
of whether considered in a proceeding in equity or at law.
2.3 No Conflict or Violation. Purchaser's execution and delivery of,
and performance of its obligations under, this Agreement do not (a) violate
Purchaser's articles of incorporation or bylaws, (b) constitute a material
breach or default under any existing obligation of or restriction on Purchaser
under any other agreement to which Purchaser is a party, or (c) breach or
otherwise violate any law, statute, rule, regulation, order or decree applicable
to Purchaser. No consent, order, permit or approval of any person or
governmental authority is required on the part of Purchaser for the execution
and delivery of, and performance of its obligations under, this Agreement.
2.4 Investment Intent. Purchaser is purchasing the Shares for its
own account and not with a view to distribution thereof within the meaning of
the Securities Act of 1933, as amended (the "Securities Act"). Purchaser is an
"accredited investor," as such term is defined in Rule 501(a) under the
Securities Act, which, by reason of its business and financial experience, has
such knowledge, sophistication and experience in business and financial matters
as to be capable of evaluating the merits and risks of the investment in the
Shares. Purchaser understands that (a) the Shares have not been registered under
the Securities Act and may not be offered or sold unless the Shares are
registered under the Securities Act or an exemption from the registration
requirements of the Securities Act is available, (b) if any transfer of the
Shares is to be made in reliance on an exemption under the Securities Act,
Xxxxxxx-Del. may require an opinion of counsel satisfactory to it that such
transfer may be made pursuant to such exemption, and (c) so long as deemed
appropriate by Xxxxxxx-Del., the Shares may bear a legend to the effect of
clauses (a) and (b) of this paragraph.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF SELLER
Seller represents and warrants to Purchaser as of the date of this
Agreement and as of the Closing Date as follows (it being understood and agreed
that Seller makes no representations or warranties in connection with the
purchase and sale of the Shares hereunder other than as set forth in this
Article III and in Section 7.10 hereof):
3.1 Organization and Good Standing; Authority. Seller has been duly
organized and is validly existing in good standing under the laws of its
jurisdiction of organization. Seller has the power and authority to execute and
deliver this Agreement and to perform its obligations hereunder. The execution
and delivery of this Agreement, and the performance of Seller's obligations
hereunder, have been duly authorized by all necessary corporate, partnership or
trust action (as the case may be) on the part of Seller.
3.2 Binding Obligation. This Agreement has been duly executed and
delivered by Seller, and constitutes the legal, valid and binding obligation of
Seller, enforceable in accordance with its terms against Seller, except that (a)
such enforcement
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may be limited by the effect of applicable bankruptcy, reorganization,
insolvency, moratorium or similar laws relating to or affecting creditors rights
generally; and (b) such enforcement may be limited by general principles of
equity, including concepts of materiality, reasonableness, good faith and fair
dealing and the possible unavailability of specific performance or injunctive
relief, regardless of whether considered in a proceeding in equity or at law.
3.3 No Conflict or Violation. Seller's execution and delivery of,
and performance of its obligations under, this Agreement do not (a) violate
Seller's charter or other organizational documents, (b) to Seller's knowledge,
constitute a material breach or default under any existing obligation of or
restriction on Seller under any other agreement to which Seller is a party, or
(c) breach or otherwise violate any law, statute, rule, regulation, order or
decree applicable to Seller. No consent, order, permit or approval of any person
or governmental authority is required on the part of Seller for the execution
and delivery of, and performance of its obligations under, this Agreement.
3.4 Share Ownership. Seller's record and beneficial ownership of
Xxxxxxx-Del. equity securities is correctly set forth on Schedule 3.4 attached
hereto. Seller owns all of the Shares of record and beneficially, free and clear
of any charge, claim, property interest, right of first refusal, condition,
lien, option, pledge, security interest or other adverse claim or interest of
any kind (collectively, "Encumbrances"). At the Closing, Seller will transfer to
Purchaser good title to the Shares, free and clear of all Encumbrances except
for such Encumbrances as may be imposed by applicable securities laws or as may
be otherwise expressly provided herein.
ARTICLE IV
ADDITIONAL AGREEMENTS
4.1 Purchase and Sale of Additional Series B Shares.
(a) Seller acknowledges that it is Purchaser's objective,
following the Closing of the Series A Offer and the Series B Offer, to
own (together with Purchaser's affiliates) an aggregate of approximately
49% (but in no event more than 49.9%) of Xxxxxxx-Del.'s outstanding
Common Stock. In the event that the Series A shareholders do not tender
a sufficient number of shares of Series A Common Stock in response to
the Series A Offer to enable Purchaser and its affiliates (after taking
into account the Series B shares to be acquired pursuant to the Series B
Offer and after giving effect to the possible disposition by Purchaser
and its affiliates of up to 8% of the outstanding shares of Xxxxxxx-Del.
Common Stock as contemplated in the Letter of Intent) to achieve the
desired ownership target, Seller hereby agrees to sell to Purchaser, and
Purchaser hereby agrees to purchase from Seller, at a price of $0.655
per share in cash, an additional number of shares of Series B Common
Stock owned by Seller so as to enable Purchaser and its affiliates to
reach the desired ownership target. The number of additional shares of
Series B Common Stock to be sold by Seller pursuant to this Section 4.1
shall be determined in accordance with the following formula:
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Number of Additional Shares = A x B
---
C
Where A = Total number of additional shares of Xxxxxxx-Del.
Common Stock necessary to enable Purchaser and its
affiliates to achieve the desired ownership target;
B = Total number of shares of Xxxxxxx-Del. Common Stock
owned by Seller (after giving effect to the sale of the
Shares specified in Section 1.1 of this Agreement); and
C = Total number of shares of Xxxxxxx-Del. Common Stock
owned by each of the Series B shareholders identified on
Schedule 3.4 attached hereto (after giving effect to the
sale of the Shares specified in Section 1.1 of this
Agreement and in Section 1.1 of each of the agreements
entered into with the other Series B Shareholders in
connection with the Series B Offer).
(b) The number of additional shares of Series B Common Stock to
be purchased pursuant to this Section 4.1 (if any) shall be set forth in
the notice delivered by Purchaser to Seller in accordance with Section
1.3 of this Agreement. The purchase and sale of any additional shares of
Series B Common Stock pursuant to this Section 4.1 shall occur in the
same manner and at the same time as the transaction provided for in
Article I of this Agreement. The term "Shares," as used in this
Agreement, shall refer equally to any additional shares of Series B
Common Stock purchased and sold pursuant to this Section 4.1.
4.2 Agreements Not to Tender, Transfer or Acquire Shares. Seller hereby
agrees that, prior to the Closing, Seller will not:
(a) transfer or dispose of any interest in, tender (pursuant to
the Series A Offer or otherwise), or pledge or otherwise create (or
allow to exist) any Encumbrance on, any shares of Xxxxxxx-Del. Common
Stock which it owns (except as contemplated in this Agreement);
(b) convert any Series B shares which it owns into Series A
shares; or
(c) acquire any beneficial interest in shares of Xxxxxxx-Del.
Common Stock or any options, warrants or other rights to acquire shares
of Xxxxxxx-Del. Common Stock.
Notwithstanding anything herein to the contrary, any affiliate of Seller which,
in the ordinary course of its business, engages in any of the following
activities may engage in such activities (other than for its own account) with
respect to shares of Xxxxxxx-Del. Common Stock and options, warrants or other
rights to acquire shares of Xxxxxxx-Del.
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Common Stock: brokerage, investment advisory, investment company, financial
advisory, anti-raid advisory, financing, asset management, trading, market
making, arbitrage and other similar activities.
4.3 Restriction on Sales of Xxxxxxx-Del Common Stock by Purchaser.
Purchaser hereby agrees that during the period from the Closing Date through and
including the third anniversary of the Closing Date, Purchaser and its
affiliates will not sell or otherwise transfer for value any shares of
Xxxxxxx-Del. Common Stock (other than the 7,939,589 shares of Series A Common
Stock which are currently owned by Purchaser and its affiliates) unless such
sale takes place in connection with a transaction in which all other holders of
Xxxxxxx-Del. Common Stock are afforded an opportunity to participate pro rata
(based on ownership of Xxxxxxx-Del. Common Stock) and on the same terms and
conditions as Purchaser and its affiliates. Notwithstanding the foregoing,
nothing contained in this Section 4.3 shall prohibit any transfer of
Xxxxxxx-Del. Common Stock by Purchaser or any of its affiliates to (a) any other
affiliate of Purchaser, (b) Xxxxxxx Xxxx, his spouse or any of his lineal
descendants, (c) any person who acquires such shares under the terms of a will
or by the laws of descent and distribution, or (d) any trustee of any trust, the
beneficiaries of which consist only of Xxxxxxx Xxxx, his spouse or lineal
descendants, or any charitable organization as defined in Section 501(c)(3) of
the Internal Revenue Code of 1986, as amended, provided that any such permitted
transferee first agrees in writing to be bound by this Section 4.3 to the same
extent as Purchaser and its affiliates.
4.4 Consent to Transactions; Agreement to Vote in Favor of
Xxxxxxx-Del. Charter Amendments. Seller hereby approves of and consents to the
transactions contemplated in the Letter of Intent, a copy of which has
previously been provided to Seller. Subject to the condition set forth in the
next sentence, Seller hereby agrees to vote all shares of Xxxxxxx-Del. Common
Stock which it (or any of its affiliates) owns in favor of the transactions
contemplated by such Letter of Intent which are submitted for a vote of
Xxxxxxx-Del. stockholders and for which approval has been recommended by the
Xxxxxxx-Del. Board of Directors. In particular, but conditioned upon the
understanding that such provisions will not be effective until after the closing
of the Series A Offer, the Series B Offer and the Acquisition, Seller agrees to
vote all shares of Xxxxxxx-Del. Common Stock which it (or any of its affiliates)
owns in favor of certain provisions proposed to be added to Xxxxxxx-Del.'s
certificate of incorporation (whether by amendment, merger or otherwise) which
would restrict the transfer of Xxxxxxx-Del shares by holders of 5% or more of
its outstanding shares so as to avoid triggering certain tax law provisions
which could result in the loss of Xxxxxxx-Del.'s net operating losses for tax
purposes.
ARTICLE V
CONDITIONS TO CLOSING
The obligation of Purchaser and Seller to effect the Closing shall
be subject to the following conditions:
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5.1 Conditions Precedent to Purchaser's and Seller's Obligations.
Purchaser's and Seller's respective obligations to consummate the purchase and
sale of the Shares hereunder and to take the other actions required to be taken
at the Closing are subject to the satisfaction as of the Closing Date of the
condition that the purchase and sale of the Shares as contemplated in this
Agreement shall not violate or contravene any applicable law, statute, rule,
regulation, order or decree of any governmental authority.
5.2 Conditions Precedent to Seller's Obligation to Close. Seller's
obligations to sell the Shares and to take the other actions required to be
taken by Seller at the Closing are subject to the satisfaction as of the Closing
Date of each of the following conditions (each of which may be waived by Seller,
in whole or in part):
(a) the representations and warranties of Purchaser contained in
this Agreement must have been true and correct in all respects on the
date of this Agreement and shall be true and correct in all respects as
of the Closing Date as if made on the Closing Date; and
(b) Purchaser shall have performed all of the covenants and
obligations that Purchaser is required to perform or to comply with at
or prior to the Closing pursuant to this Agreement.
5.3 Conditions Precedent to Purchaser's Obligation to Close.
Purchaser's obligations to purchase the Shares and to take the other actions
required to be taken by Purchaser at the Closing are subject to the satisfaction
as of the Closing Date of each of the following conditions (each of which may be
waived by Purchaser, in whole or in part):
(a) The representations and warranties of Seller contained in
this Agreement must have been true and correct in all respects on the
date of this Agreement and shall be true and correct in all respects as
of the Closing Date as if made on the Closing Date;
(b) Seller shall have performed all of the covenants and
obligations that Seller is required to perform or to comply with at or
prior to the Closing pursuant to this Agreement;
(c) The stockholders of Xxxxxxx-Del., by a vote sufficient under
applicable law, shall have approved certain provisions which are
proposed to be added to Xxxxxxx-Del.'s certificate of incorporation
and/or bylaws to restrict transfers of shares of Xxxxxxx-Del. Common
Stock by holders of 5% or more of the outstanding Common Stock so as to
avoid triggering the change-in-control tax provisions which could result
in a loss of Xxxxxxx-Del.'s net operating losses for tax purposes, and
Xxxxxxx-Del. shall have notified Purchaser in writing of its intention
to effect such provisions (by filing with the Delaware Secretary of
State a certificate of amendment or certificate of merger) following and
conditioned only upon the closing of the Series A Offer and the Series B
Offer;
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(d) Xxxxxxx-Cal. and Purchaser shall have closed the
Acquisition;
(e) Purchaser shall have purchased (or shall have the legally
enforceable right to purchase) shares of Xxxxxxx-Del. Common Stock
pursuant to the Series A Offer and/or the Series B Offer such that the
number of shares so purchased, when added to the number of shares of
Xxxxxxx-Del. Common Stock then owned by Purchaser and its affiliates,
causes Purchaser and its affiliates to own at least 49% (but not more
than 49.9%) of the outstanding shares of Xxxxxxx-Del. Common Stock; and
(f) upon the closing of the Series B Offer, no person (other
than Purchaser and its affiliates) shall own beneficially 5% or more of
the outstanding Common Stock of Xxxxxxx-Del.
ARTICLE VI
TERMINATION
6.1 Termination Events. This Agreement may, by written notice
delivered prior to the Closing, be terminated:
(a) by mutual consent of Purchaser and Seller;
(b) by Purchaser or Seller (if such party is not itself then in
breach), if a material breach of this Agreement has been committed by
the other party, and such breach has not been waived or cured within 10
calendar days of the date written notice of such breach is delivered to
the breaching party;
(c) by Purchaser or Seller if the Closing has not occurred
(other than through the failure of any party seeking to terminate this
Agreement to comply fully with its obligations under this Agreement) on
or before November 15, 1999, or such later date as the parties may agree
upon in writing;
(d) (i) by Purchaser, if any of the conditions in Section 5.3 of
this Agreement has not been satisfied as of the Closing Date or if
satisfaction of such a condition is or becomes impossible (other than
through the failure of Purchaser to perform its obligations under this
Agreement), or (ii) by Seller, if any of the conditions in Section 5.2
of this Agreement has not been satisfied as of the Closing Date or if
satisfaction of such a condition is or becomes impossible (other than
through the failure of Seller to perform its obligations under this
Agreement); or
(e) by Purchaser or Seller, if Purchaser, Xxxxxxx-Del. and
Xxxxxxx-Cal. terminate the Letter of Intent (or any definitive agreement
entered into with respect to the transactions contemplated by the Letter
of Intent), or the Letter of Intent (or any such definitive agreement)
expires in accordance with its terms prior to the Closing Date.
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6.2 Effect of Termination. If this Agreement is terminated pursuant
to Section 6.1 hereof, all further obligations of the parties under this
Agreement shall terminate; provided, however, that a termination of this
Agreement shall not relieve any party of any liability it may have for breach of
any representation or warranty or nonperformance of any covenant or obligation
hereunder, or constitute a waiver of any available remedy (including specific
performance, if available) for any such breach or nonperformance.
ARTICLE VII
GENERAL PROVISIONS
7.1 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original but all of which taken together shall
constitute one and the same instrument.
7.2 Governing Law. This Agreement shall be governed by, interpreted
under, and construed and enforced in accordance with the laws of the State of
California applicable to agreements made and to be performed wholly within the
State of California, without regard to conflict of laws principles.
7.3 Entire Agreement. This Agreement contains all of the agreements
between the parties with respect to the matters contained herein and supersedes
all prior written or oral and all contemporaneous oral agreements or
understandings between the parties pertaining to any such matters. No provision
of this Agreement may be amended or added to except by an agreement in writing
signed by the parties to this Agreement or their respective successors in
interest and expressly stating that it is an amendment of this Agreement.
7.4 Further Assurances. The parties agree to do such further acts
and things and to execute and deliver such additional agreements and instruments
as any other party may reasonably require to consummate, evidence or confirm the
agreements contained herein in the manner contemplated hereby.
7.5 Assignment. This Agreement and the rights, duties, and
obligations hereunder may not be assigned by any party prior to the Closing
without the prior written consent of the other party, and any attempted
assignment is void. Notwithstanding the foregoing, either Purchaser or Seller
may assign its rights and delegate its obligations under this Agreement to one
or more of their respective affiliates (as such term is defined in Rule 12b-2
under the Securities Exchange Act of 1934, as amended) or, in the case of
Seller, to any successor trust or successor trustee of Seller, provided that, in
each case, (a) the assignee first agrees in writing to be bound by the terms of
this Agreement, and (b) any such assignment and delegation shall not relieve
Purchaser or Seller of any of its obligations hereunder.
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7.6 Successors and Assigns. Subject to Section 7.5 hereof, this
Agreement shall be binding upon each of the parties to it and their respective
successors and permitted assigns.
7.7 Severability. In the event any provision of this Agreement shall
finally be determined to be unlawful, such provision shall be deemed to be
severed from this Agreement and every other provision of this Agreement shall
remain in full force and effect.
7.8 Expenses. Each party shall bear its own expenses in connection
with the transactions contemplated hereunder. Each party further represents and
warrants that it has not engaged or authorized any broker, finder or similar
agent who would be entitled to a commission or other fee in respect of the
transactions contemplated hereunder.
7.9 Applicability in the Event of Conversion, Reclassification or
Exchange of Series B Common Stock. In the event that shares of Xxxxxxx-Del.
Series B Common Stock are converted, reclassified or split into, or otherwise
exchanged for, other securities of the same or different issuer, the terms and
provisions of this Agreement shall be deemed to apply to such other securities
with the same force and effect (with such adjustments to the number of
securities and the purchase price thereof as may be necessary or appropriate to
give effect to the parties' intent and the transactions contemplated hereunder).
7.10 Acknowledgement. Purchaser and Seller acknowledge that each of
them has a representative who is a director of Xxxxxxx Del. and that each of
Purchaser and Seller may be deemed to be an affiliate of Xxxxxxx-Del. (as such
term is defined in Rule 12b-2 under the Securities Exchange Act of 1934, as
amended). Purchaser and Seller further acknowledge that each of them may have
confidential information concerning Xxxxxxx-Del.'s business and affairs which is
not public and may be considered material. Recognizing the foregoing, neither
Purchaser nor Seller has requested, desires or requires the other to disclose
any confidential information relating to Xxxxxxx-Del. or otherwise. Each of
Purchaser and Seller has conducted its own investigation, to the extent it has
determined necessary or desirable, in connection with the purchase and sale of
the Shares hereunder and expressly further acknowledges that (a) it has not
relied upon any representation, warranty or statement (other than the limited
representations, warranties and statements contained in this Agreement) made by,
nor upon any analysis of, the other in connection with the transactions
contemplated hereunder, (b) it has made its own investment analysis and decision
to purchase or sell (as the case may be) the Shares based upon such information
as it has deemed appropriate, and (c) it is voluntarily assuming all risks
associated with the purchase or sale (as the case may be) of the Shares
hereunder resulting from the failure to receive any such representations,
warranties, statements or confidential information
7.11 Relationship to Other Series B Purchase Agreements. The parties
acknowledge that, in connection with the Series B Offer, Purchaser has entered
into or proposes to enter into agreements with the other holders of Xxxxxxx-Del.
Series B
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Common Stock to purchase from such holders additional shares of Xxxxxxx-Del.
Common Stock (such other agreements are attached hereto as Exhibit B and are
being referred to herein as the "Other Series B Agreements"). Purchaser agrees
that such Other Series B Agreements are to be identical in form and substance to
this Agreement, with only such differences as relate to the identity of the
seller and the number of shares of Xxxxxxx-Del. Common Stock to be purchased and
sold thereunder (it being understood that in the case of Foothill Capital
Corporation, such number is 710,574 shares of Xxxxxxx-Del. Series B Common
Stock, and in the case of each of the other Series B stockholders, such number
is that number of Series B shares as is necessary to reduce the total number of
shares of Xxxxxxx-Del. Common Stock (including any Xxxxxxx-Del. Series A shares)
owned by such Series B stockholder to below 5% of the total number of shares of
Xxxxxxx-Del. Common Stock outstanding). If the terms and conditions contained in
any of the Other Series B Agreements are modified from the terms or conditions
contained in this Agreement in any respect which is more advantageous to the
seller or sellers party thereto, Purchaser and Seller agree that (a) Purchaser
shall deliver to Seller prompt written notice of such modification (including
the text thereof), (b) this Agreement shall be deemed to be amended to reflect
such more advantageous terms or conditions (unless Seller notifies Purchaser to
the contrary in writing), and (c) Purchaser and Seller, upon request, will
promptly execute such agreements or instruments as may be necessary to evidence
such amendment.
7.12 Increase in Series A Offering Price. In the event that the
purchase price paid by Purchaser in the Series A Offer is increased above $0.655
per share in cash, then the purchase price to be paid by Purchaser under this
Agreement for each of the Shares shall be increased by the same incremental
amount above $0.655 per share.
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IN WITNESS WHEREOF, the parties hereto have executed this Stock
Purchase and Sale Agreement as of the day and year first above written.
"PURCHASER"
XXXXXXX XXXX HOMES, INC.
By: /s/ Xxxxxxx Xxxx
------------------------------------
Xxxxxxx Xxxx
Chairman, President and CEO
"SELLER"
THE CHASE MANHATTAN BANK,
AS TRUSTEE OF FIRST PLAZA GROUP TRUST
By: /s/ Xxxx X. Xxxxx
------------------------------------
Xxxx X. Xxxxx
Vice President
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SCHEDULE 3.4
SHARE OWNERSHIP
Series A Shares Series B Shares
First Plaza Group Trust 1,697,325 5,099,206
GS Credit Partners, L.P. --- 5,920,362
ING (U.S.) Capital LLC (as nominee of
ING Equity Partners, L.P. I)
--- 4,547,269
Foothill Capital Corporation --- 1,836,109
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STOCK PURCHASE AND SALE AGREEMENT
THIS STOCK PURCHASE AND SALE AGREEMENT (this "Agreement") is entered
into as of this 6th day of July, 1999 by and among Xxxxxxx Xxxx Homes, Inc., a
California corporation ("Purchaser"), and GS Credit Partners, L.P., ("Seller").
RECITALS:
WHEREAS, Purchaser, The Xxxxxxx Companies, a Delaware corporation
("Xxxxxxx-Del."), and Xxxxxxx Homes, a California corporation ("Xxxxxxx-Cal."),
are parties to a letter of intent dated May 3, 1999 attached hereto as Exhibit A
(the "Letter of Intent") which sets forth such parties' mutual, preliminary
understanding with respect to Xxxxxxx-Cal.'s proposed acquisition of
substantially all of the assets of Purchaser (the "Acquisition") and Purchaser's
proposal to acquire a portion of the outstanding shares of Common Stock of
Xxxxxxx-Del.; and
WHEREAS, the Letter of Intent contemplates that Purchaser will make
offers to the holders of Xxxxxxx-Del. Series B Common Stock (the "Series B
Offer") and a tender offer to the holders of the Xxxxxxx Del. Series A Common
Stock (the "Series A Offer") to purchase, for a cash purchase price of $0.655
per share, an aggregate number of shares of the Xxxxxxx Del. Common Stock which,
when added to the number of shares of Xxxxxxx-Del Common Stock already owned by
Purchaser and its affiliates (and after giving effect to dispositions of
Xxxxxxx-Del. Common Stock held by Purchaser and its affiliates as contemplated
in the Letter of Intent), will cause Purchaser and its affiliates to own an
aggregate of approximately 49% (but in no event more than 49.9%) of the shares
of Xxxxxxx-Del. Common Stock outstanding; and
WHEREAS, Seller owns shares of Xxxxxxx-Del. Series B Common Stock
and, as part of the Series B Offer, Seller and Purchaser desire to enter into
this Agreement to provide for the sale by Seller to Purchaser of 3,310,579
shares (subject to adjustment as provided herein) of such Series B Common Stock
on the terms and subject to the conditions set forth herein.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and the
representations, warranties and covenants set forth in this Agreement, the
parties agree as follows:
ARTICLE I
PURCHASE AND SALE
1.1 Purchase and Sale of Shares. At the Closing (as defined in
Section 1.3 of this Agreement), and on the terms and subject to the conditions
set forth in
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this Agreement, Seller agrees to sell, transfer and deliver to Purchaser, and
Purchaser hereby agrees to purchase and acquire from Seller, 3,310,579 shares of
Xxxxxxx-Del. Series B Common Stock (the "Shares") for a cash price of $0.655 per
share, or an aggregate purchase price of $2,168,429.25 (the "Purchase Price").
The number of Shares of Xxxxxxx-Del. Series B Common Stock to be purchased and
sold hereunder, and the aggregate Purchase Price to be paid therefor, shall be
subject to adjustment as provided in Section 4.1 and Section 7.12 of this
Agreement.
1.2 Deliveries at Closing. At the Closing, Seller shall deliver to
Purchaser the certificate or certificates representing the Shares, duly endorsed
for transfer to, or accompanied by duly executed stock powers in favor of,
Purchaser or its nominee, and otherwise in a form acceptable for transfer on the
books of Xxxxxxx-Del., against payment by Purchaser of the Purchase Price by
wire transfer of immediately available funds to the account specified on
Schedule 1.2 attached hereto.
1.3 Closing. Unless otherwise agreed by the parties hereto, the
closing of the transaction contemplated in this Article I (the "Closing") shall
take place at the offices of Purchaser at 9:00 a.m. Pacific time on the second
business day following the delivery by Purchaser to Seller of written notice to
the effect that the conditions set forth in Sections 5.3(c), 5.3(d) and 5.3(e)
of this Agreement have been satisfied or waived. The date on which the Closing
occurs is hereinafter referred to as the "Closing Date."
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF PURCHASER
Purchaser hereby represents and warrants to Seller as of the date of
this Agreement and as of the Closing Date as follows (it being understood and
agreed that Purchaser makes no representations or warranties in connection with
the purchase and sale of the Shares hereunder other than as set forth in this
Article II and in Section 7.10 hereof):
2.1 Due Incorporation; Authority. Purchaser has been duly
incorporated and is validly existing in good standing under the laws of the
State of California. Purchaser has the corporate power and corporate authority
to execute and deliver this Agreement and to perform its obligations hereunder.
The execution and delivery of this Agreement, and the performance of Purchaser's
obligations hereunder, have been duly authorized by all necessary corporate
action on the part of Purchaser.
2.2 Binding Obligation. This Agreement has been duly executed and
delivered by Purchaser, and constitutes the legal, valid and binding obligation
of Purchaser, enforceable in accordance with its terms against Purchaser, except
that (a) such enforcement may be limited by the effect of applicable bankruptcy,
reorganization, insolvency, moratorium or similar laws relating to or affecting
creditors rights generally; and (b) such enforcement may be limited by general
principles of equity, including concepts of materiality, reasonableness, good
faith and fair dealing and the
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possible unavailability of specific performance or injunctive relief, regardless
of whether considered in a proceeding in equity or at law.
2.3 No Conflict or Violation. Purchaser's execution and delivery of,
and performance of its obligations under, this Agreement do not (a) violate
Purchaser's articles of incorporation or bylaws, (b) constitute a material
breach or default under any existing obligation of or restriction on Purchaser
under any other agreement to which Purchaser is a party, or (c) breach or
otherwise violate any law, statute, rule, regulation, order or decree applicable
to Purchaser. No consent, order, permit or approval of any person or
governmental authority is required on the part of Purchaser for the execution
and delivery of, and performance of its obligations under, this Agreement.
2.4 Investment Intent. Purchaser is purchasing the Shares for its
own account and not with a view to distribution thereof within the meaning of
the Securities Act of 1933, as amended (the "Securities Act"). Purchaser is an
"accredited investor," as such term is defined in Rule 501(a) under the
Securities Act, which, by reason of its business and financial experience, has
such knowledge, sophistication and experience in business and financial matters
as to be capable of evaluating the merits and risks of the investment in the
Shares. Purchaser understands that (a) the Shares have not been registered under
the Securities Act and may not be offered or sold unless the Shares are
registered under the Securities Act or an exemption from the registration
requirements of the Securities Act is available, (b) if any transfer of the
Shares is to be made in reliance on an exemption under the Securities Act,
Xxxxxxx-Del. may require an opinion of counsel satisfactory to it that such
transfer may be made pursuant to such exemption, and (c) so long as deemed
appropriate by Xxxxxxx-Del., the Shares may bear a legend to the effect of
clauses (a) and (b) of this paragraph.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF SELLER
Seller represents and warrants to Purchaser as of the date of this
Agreement and as of the Closing Date as follows (it being understood and agreed
that Seller makes no representations or warranties in connection with the
purchase and sale of the Shares hereunder other than as set forth in this
Article III and in Section 7.10 hereof):
3.1 Organization and Good Standing; Authority. Seller has been duly
organized and is validly existing in good standing under the laws of its
jurisdiction of organization. Seller has the power and authority to execute and
deliver this Agreement and to perform its obligations hereunder. The execution
and delivery of this Agreement, and the performance of Seller's obligations
hereunder, have been duly authorized by all necessary corporate, partnership or
trust action (as the case may be) on the part of Seller.
3.2 Binding Obligation. This Agreement has been duly executed and
delivered by Seller, and constitutes the legal, valid and binding obligation of
Seller, enforceable in accordance with its terms against Seller, except that (a)
such enforcement
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may be limited by the effect of applicable bankruptcy, reorganization,
insolvency, moratorium or similar laws relating to or affecting creditors rights
generally; and (b) such enforcement may be limited by general principles of
equity, including concepts of materiality, reasonableness, good faith and fair
dealing and the possible unavailability of specific performance or injunctive
relief, regardless of whether considered in a proceeding in equity or at law.
3.3 No Conflict or Violation. Seller's execution and delivery of,
and performance of its obligations under, this Agreement do not (a) violate
Seller's charter or other organizational documents, (b) to Seller's knowledge,
constitute a material breach or default under any existing obligation of or
restriction on Seller under any other agreement to which Seller is a party, or
(c) breach or otherwise violate any law, statute, rule, regulation, order or
decree applicable to Seller. No consent, order, permit or approval of any person
or governmental authority is required on the part of Seller for the execution
and delivery of, and performance of its obligations under, this Agreement.
3.4 Share Ownership. Seller's record and beneficial ownership of
Xxxxxxx-Del. equity securities is correctly set forth on Schedule 3.4 attached
hereto. Seller owns all of the Shares of record and beneficially, free and clear
of any charge, claim, property interest, right of first refusal, condition,
lien, option, pledge, security interest or other adverse claim or interest of
any kind (collectively, "Encumbrances"). At the Closing, Seller will transfer to
Purchaser good title to the Shares, free and clear of all Encumbrances except
for such Encumbrances as may be imposed by applicable securities laws or as may
be otherwise expressly provided herein.
ARTICLE IV
ADDITIONAL AGREEMENTS
4.1 Purchase and Sale of Additional Series B Shares.
(a) Seller acknowledges that it is Purchaser's objective,
following the Closing of the Series A Offer and the Series B Offer, to
own (together with Purchaser's affiliates) an aggregate of approximately
49% (but in no event more than 49.9%) of Xxxxxxx-Del.'s outstanding
Common Stock. In the event that the Series A shareholders do not tender
a sufficient number of shares of Series A Common Stock in response to
the Series A Offer to enable Purchaser and its affiliates (after taking
into account the Series B shares to be acquired pursuant to the Series B
Offer and after giving effect to the possible disposition by Purchaser
and its affiliates of up to 8% of the outstanding shares of Xxxxxxx-Del.
Common Stock as contemplated in the Letter of Intent) to achieve the
desired ownership target, Seller hereby agrees to sell to Purchaser, and
Purchaser hereby agrees to purchase from Seller, at a price of $0.655
per share in cash, an additional number of shares of Series B Common
Stock owned by Seller so as to enable Purchaser and its affiliates to
reach the desired ownership target. The number of additional shares of
Series B Common Stock to be sold by Seller pursuant to this Section 4.1
shall be determined in accordance with the following formula:
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Number of Additional Shares = A x B
---
C
Where A = Total number of additional shares of Xxxxxxx-Del.
Common Stock necessary to enable Purchaser and its
affiliates to achieve the desired ownership target;
B = Total number of shares of Xxxxxxx-Del. Common Stock
owned by Seller (after giving effect to the sale of the
Shares specified in Section 1.1 of this Agreement); and
C = Total number of shares of Xxxxxxx-Del. Common Stock
owned by each of the Series B shareholders identified on
Schedule 3.4 attached hereto (after giving effect to the
sale of the Shares specified in Section 1.1 of this
Agreement and in Section 1.1 of each of the agreements
entered into with the other Series B Shareholders in
connection with the Series B Offer).
(b) The number of additional shares of Series B Common Stock to
be purchased pursuant to this Section 4.1 (if any) shall be set forth in
the notice delivered by Purchaser to Seller in accordance with Section
1.3 of this Agreement. The purchase and sale of any additional shares of
Series B Common Stock pursuant to this Section 4.1 shall occur in the
same manner and at the same time as the transaction provided for in
Article I of this Agreement. The term "Shares," as used in this
Agreement, shall refer equally to any additional shares of Series B
Common Stock purchased and sold pursuant to this Section 4.1.
4.2 Agreements Not to Tender, Transfer or Acquire Shares. Seller
hereby agrees that, prior to the Closing, Seller will not:
(a) transfer or dispose of any interest in, tender (pursuant to
the Series A Offer or otherwise), or pledge or otherwise create (or
allow to exist) any Encumbrance on, any shares of Xxxxxxx-Del. Common
Stock which it owns (except as contemplated in this Agreement);
(b) convert any Series B shares which it owns into Series A
shares; or
(c) acquire any beneficial interest in shares of Xxxxxxx-Del.
Common Stock or any options, warrants or other rights to acquire shares
of Xxxxxxx-Del. Common Stock.
Notwithstanding anything herein to the contrary, Xxxxxxx, Xxxxx & Co. and its
affiliates may, in the ordinary course of its and its affiliates' business,
engage in brokerage, investment advisory, investment company, financial
advisory, anti-raid advisory, financing, asset management, trading, market
making, arbitrage and other similar
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activities with respect to shares of Xxxxxxx-Del. Common Stock and options,
warrants or other rights to acquire shares of Xxxxxxx-Del. Common Stock.
4.3 Restriction on Sales of Xxxxxxx-Del Common Stock by Purchaser.
Purchaser hereby agrees that during the period from the Closing Date through and
including the third anniversary of the Closing Date, Purchaser and its
affiliates will not sell or otherwise transfer for value any shares of
Xxxxxxx-Del. Common Stock (other than the 7,939,589 shares of Series A Common
Stock which are currently owned by Purchaser and its affiliates) unless such
sale takes place in connection with a transaction in which all other holders of
Xxxxxxx-Del. Common Stock are afforded an opportunity to participate pro rata
(based on ownership of Xxxxxxx-Del. Common Stock) and on the same terms and
conditions as Purchaser and its affiliates. Notwithstanding the foregoing,
nothing contained in this Section 4.3 shall prohibit any transfer of
Xxxxxxx-Del. Common Stock by Purchaser or any of its affiliates to (a) any other
affiliate of Purchaser, (b) Xxxxxxx Xxxx, his spouse or any of his lineal
descendants, (c) any person who acquires such shares under the terms of a will
or by the laws of descent and distribution, or (d) any trustee of any trust, the
beneficiaries of which consist only of Xxxxxxx Xxxx, his spouse or lineal
descendants, or any charitable organization as defined in Section 501(c)(3) of
the Internal Revenue Code of 1986, as amended, provided that any such permitted
transferee first agrees in writing to be bound by this Section 4.3 to the same
extent as Purchaser and its affiliates.
4.4 Consent to Transactions; Agreement to Vote in Favor of
Xxxxxxx-Del. Charter Amendments. Seller hereby approves of and consents to the
transactions contemplated in the Letter of Intent, a copy of which has
previously been provided to Seller. Subject to the condition set forth in the
next sentence, Seller hereby agrees to vote all shares of Xxxxxxx-Del. Common
Stock which it (or any of its affiliates) owns in favor of the transactions
contemplated by such Letter of Intent which are submitted for a vote of
Xxxxxxx-Del. stockholders and for which approval has been recommended by the
Xxxxxxx-Del. Board of Directors. In particular, but conditioned upon the
understanding that such provisions will not be effective until after the closing
of the Series A Offer, the Series B Offer and the Acquisition, Seller agrees to
vote all shares of Xxxxxxx-Del. Common Stock which it (or any of its affiliates)
owns in favor of certain provisions proposed to be added to Xxxxxxx-Del.'s
certificate of incorporation (whether by amendment, merger or otherwise) which
would restrict the transfer of Xxxxxxx-Del shares by holders of 5% or more of
its outstanding shares so as to avoid triggering certain tax law provisions
which could result in the loss of Xxxxxxx-Del.'s net operating losses for tax
purposes.
ARTICLE V
CONDITIONS TO CLOSING
The obligation of Purchaser and Seller to effect the Closing shall
be subject to the following conditions:
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5.1 Conditions Precedent to Purchaser's and Seller's Obligations.
Purchaser's and Seller's respective obligations to consummate the purchase and
sale of the Shares hereunder and to take the other actions required to be taken
at the Closing are subject to the satisfaction as of the Closing Date of the
condition that the purchase and sale of the Shares as contemplated in this
Agreement shall not violate or contravene any applicable law, statute, rule,
regulation, order or decree of any governmental authority.
5.2 Conditions Precedent to Seller's Obligation to Close. Seller's
obligations to sell the Shares and to take the other actions required to be
taken by Seller at the Closing are subject to the satisfaction as of the Closing
Date of each of the following conditions (each of which may be waived by Seller,
in whole or in part):
(a) the representations and warranties of Purchaser contained in
this Agreement must have been true and correct in all respects on the
date of this Agreement and shall be true and correct in all respects as
of the Closing Date as if made on the Closing Date; and
(b) Purchaser shall have performed all of the covenants and
obligations that Purchaser is required to perform or to comply with at
or prior to the Closing pursuant to this Agreement.
5.3 Conditions Precedent to Purchaser's Obligation to Close.
Purchaser's obligations to purchase the Shares and to take the other actions
required to be taken by Purchaser at the Closing are subject to the satisfaction
as of the Closing Date of each of the following conditions (each of which may be
waived by Purchaser, in whole or in part):
(a) The representations and warranties of Seller contained in
this Agreement must have been true and correct in all respects on the
date of this Agreement and shall be true and correct in all respects as
of the Closing Date as if made on the Closing Date;
(b) Seller shall have performed all of the covenants and
obligations that Seller is required to perform or to comply with at or
prior to the Closing pursuant to this Agreement;
(c) The stockholders of Xxxxxxx-Del., by a vote sufficient under
applicable law, shall have approved certain provisions which are
proposed to be added to Xxxxxxx-Del.'s certificate of incorporation
and/or bylaws to restrict transfers of shares of Xxxxxxx-Del. Common
Stock by holders of 5% or more of the outstanding Common Stock so as to
avoid triggering the change-in-control tax provisions which could result
in a loss of Xxxxxxx-Del.'s net operating losses for tax purposes, and
Xxxxxxx-Del. shall have notified Purchaser in writing of its intention
to effect such provisions (by filing with the Delaware Secretary of
State a certificate of amendment or certificate of merger) following and
conditioned only upon the closing of the Series A Offer and the Series B
Offer;
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(d) Xxxxxxx-Cal. and Purchaser shall have closed the
Acquisition;
(e) Purchaser shall have purchased (or have the legally
enforceable right to purchase) shares of Xxxxxxx-Del. Common Stock
pursuant to the Series A Offer and/or the Series B Offer such that the
number of shares so purchased, when added to the number of shares of
Xxxxxxx-Del. Common Stock then owned by Purchaser and its affiliates,
causes Purchaser and its affiliates to own at least 49% (but not more
than 49.9%) of the outstanding shares of Xxxxxxx-Del. Common Stock; and
(f) upon the closing of the Series B Offer, no person (other
than Purchaser and its affiliates) shall own beneficially 5% or more of
the outstanding Common Stock of Xxxxxxx-Del.
ARTICLE VI
TERMINATION
6.1 Termination Events. This Agreement may, by written notice
delivered prior to the Closing, be terminated:
(a) by mutual consent of Purchaser and Seller;
(b) by Purchaser or Seller (if such party is not itself then in
breach), if a material breach of this Agreement has been committed by
the other party, and such breach has not been waived or cured within 10
calendar days of the date written notice of such breach is delivered to
the breaching party;
(c) by Purchaser or Seller if the Closing has not occurred
(other than through the failure of any party seeking to terminate this
Agreement to comply fully with its obligations under this Agreement) on
or before November 15, 1999, or such later date as the parties may agree
upon in writing;
(d) (i) by Purchaser, if any of the conditions in Section 5.3 of
this Agreement has not been satisfied as of the Closing Date or if
satisfaction of such a condition is or becomes impossible (other than
through the failure of Purchaser to perform its obligations under this
Agreement), or (ii) by Seller, if any of the conditions in Section 5.2
of this Agreement has not been satisfied as of the Closing Date or if
satisfaction of such a condition is or becomes impossible (other than
through the failure of Seller to perform its obligations under this
Agreement); or
(e) by Purchaser or Seller, if Purchaser, Xxxxxxx-Del. and
Xxxxxxx-Cal. terminate the Letter of Intent (or any definitive agreement
entered into with respect to the transactions contemplated by the Letter
of Intent), or the Letter of Intent (or any such definitive agreement)
expires in accordance with its terms prior to the Closing Date.
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6.2 Effect of Termination. If this Agreement is terminated pursuant
to Section 6.1 hereof, all further obligations of the parties under this
Agreement shall terminate; provided, however, that a termination of this
Agreement shall not relieve any party of any liability it may have for breach of
any representation or warranty or nonperformance of any covenant or obligation
hereunder, or constitute a waiver of any available remedy (including specific
performance, if available) for any such breach or nonperformance.
ARTICLE VII
GENERAL PROVISIONS
7.1 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original but all of which taken together shall
constitute one and the same instrument.
7.2 Governing Law. This Agreement shall be governed by, interpreted
under, and construed and enforced in accordance with the laws of the State of
California applicable to agreements made and to be performed wholly within the
State of California, without regard to conflict of laws principles.
7.3 Entire Agreement. This Agreement contains all of the agreements
between the parties with respect to the matters contained herein and supersedes
all prior written or oral and all contemporaneous oral agreements or
understandings between the parties pertaining to any such matters. No provision
of this Agreement may be amended or added to except by an agreement in writing
signed by the parties to this Agreement or their respective successors in
interest and expressly stating that it is an amendment of this Agreement.
7.4 Further Assurances. The parties agree to do such further acts
and things and to execute and deliver such additional agreements and instruments
as any other party may reasonably require to consummate, evidence or confirm the
agreements contained herein in the manner contemplated hereby.
7.5 Assignment. This Agreement and the rights, duties, and
obligations hereunder may not be assigned by any party prior to the Closing
without the prior written consent of the other party, and any attempted
assignment is void. Notwithstanding the foregoing, either Purchaser or Seller
may assign its rights and delegate its obligations under this Agreement to one
or more of their respective affiliates (as such term is defined in Rule 12b-2
under the Securities Exchange Act of 1934, as amended), provided that, in each
case, (a) the assignee first agrees in writing to be bound by the terms of this
Agreement, and (b) any such assignment and delegation shall not relieve
Purchaser or Seller of any of its obligations hereunder.
7.6 Successors and Assigns. Subject to Section 7.5 hereof, this
Agreement shall be binding upon each of the parties to it and their respective
successors and permitted assigns.
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7.7 Severability. In the event any provision of this Agreement shall
finally be determined to be unlawful, such provision shall be deemed to be
severed from this Agreement and every other provision of this Agreement shall
remain in full force and effect.
7.8 Expenses. Each party shall bear its own expenses in connection
with the transactions contemplated hereunder. Each party further represents and
warrants that it has not engaged or authorized any broker, finder or similar
agent who would be entitled to a commission or other fee in respect of the
transactions contemplated thereunder.
7.9 Applicability in the Event of Conversion, Reclassification or
Exchange of Series B Common Stock. In the event that shares of Xxxxxxx-Del.
Series B Common Stock are converted, reclassified or split into, or otherwise
exchanged for, other securities of the same or different issuer, the terms and
provisions of this Agreement shall be deemed to apply to such other securities
with the same force and effect (with such adjustments to the number of
securities and the purchase price thereof as may be necessary or appropriate to
give effect to the parties' intent and the transactions contemplated hereunder).
7.10 Acknowledgement. Purchaser and Seller acknowledge that each of
them may be deemed to be an affiliate of Xxxxxxx-Del. (as such term is defined
in Rule 12b-2 under the Securities Exchange Act of 1934, as amended). Purchaser
and Seller further acknowledge that each of them may have confidential
information concerning Xxxxxxx-Del.'s business and affairs which is not public
and may be considered material. Recognizing the foregoing, neither Purchaser nor
Seller has requested, desires or requires the other to disclose any confidential
information relating to Xxxxxxx-Del. or otherwise. Each of Purchaser and Seller
has conducted its own investigation, to the extent it has determined necessary
or desirable, in connection with the purchase and sale of the Shares hereunder
and expressly further acknowledges that (a) it has not relied upon any
representation, warranty or statement (other than the limited representations,
warranties and statements contained in this Agreement) made by, nor upon any
analysis of, the other in connection with the transactions contemplated
hereunder, (b) it has made its own investment analysis and decision to purchase
or sell (as the case may be) the Shares based upon such information as it has
deemed appropriate, and (c) it is voluntarily assuming all risks associated with
the purchase or sale (as the case may be) of the Shares hereunder resulting from
the failure to receive any such representations, warranties, statements or
confidential information.
7.11 Relationship to Other Series B Purchase Agreements. The parties
acknowledge that, in connection with the Series B Offer, Purchaser has entered
into or proposes to enter into agreements with the other holders of Xxxxxxx-Del.
Series B Common Stock to purchase from such holders additional shares of
Xxxxxxx-Del. Common Stock (such other agreements are attached hereto as Exhibit
B and are referred to herein as the "Other Series B Agreements"). Purchaser
agrees that such Other Series B Agreements are to be identical in form and
substance to this Agreement, with only such
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differences as relate to the identity of the seller and the number of shares of
Xxxxxxx-Del. Common Stock to be purchased and sold thereunder (it being
understood that in the case of Foothill Capital Corporation, such number is
710,574 shares of Xxxxxxx-Del. Series B Common Stock, and in the case of each of
the other Series B stockholders, such number is that number of Series B shares
as is necessary to reduce the total number of shares of Xxxxxxx-Del. Common
Stock (including any Xxxxxxx-Del. Series A shares) owned by such Series B
stockholder to below 5% of the total number of shares of Xxxxxxx-Del. Common
Stock outstanding). If the terms and conditions contained in any of the Other
Series B Agreements are modified from the terms or conditions contained in this
Agreement in any respect which is more advantageous to the seller or sellers
party thereto, Purchaser and Seller agree that (a) Purchaser shall deliver to
Seller prompt written notice of such modification (including the text thereof),
(b) this Agreement shall be deemed to be amended to reflect such more
advantageous terms or conditions (unless Seller notifies Purchaser to the
contrary in writing), and (c) Purchaser and Seller, upon request, will promptly
execute such agreements or instruments as may be necessary to evidence such
amendment.
7.12 Increase in Series A Offering Price. In the event that the
purchase price paid by Purchaser in the Series A Offer is increased above $0.655
per share in cash, then the purchase price to be paid by Purchaser under this
Agreement for each of the Shares shall be increased by the same incremental
amount above $0.655 per share.
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IN WITNESS WHEREOF, the parties hereto have executed this Stock
Purchase and Sale Agreement as of the day and year first above written.
"PURCHASER"
XXXXXXX XXXX HOMES, INC.
By: /s/ Xxxxxxx Xxxx
------------------------------------
Xxxxxxx Xxxx
Chairman, President and CEO
"SELLER"
GS CREDIT PARTNERS, L.P.
By: /s/ Xxxxxx X'Xxxx
------------------------------------
Xxxxxx X'Xxxx
Managing Director
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SCHEDULE 3.4
SHARE OWNERSHIP
Series A Shares Series B Shares
First Plaza Group Trust 1,697,325 5,099,206
GS Credit Partners, L.P. -- 5,920,362
ING (U.S.) Capital LLC (as nominee of
ING Equity Partners, L.P. I)
-- 4,547,269
Foothill Capital Corporation -- 1,836,109
27
STOCK PURCHASE AND SALE AGREEMENT
THIS STOCK PURCHASE AND SALE AGREEMENT (this "Agreement") is entered
into as of this 6th day of July, 1999 by and among Xxxxxxx Xxxx Homes, Inc., a
California corporation ("Purchaser"), and ING (U.S.) Capital, LLC, formerly
known as ING (U.S.) Capital Corporation ("Seller").
RECITALS:
WHEREAS, Purchaser, The Xxxxxxx Companies, a Delaware corporation
("Xxxxxxx-Del."), and Xxxxxxx Homes, a California corporation ("Xxxxxxx-Cal."),
are parties to a letter of intent dated May 3, 1999 attached hereto as Exhibit A
(the "Letter of Intent") which sets forth such parties' mutual, preliminary
understanding with respect to Xxxxxxx-Cal.'s proposed acquisition of
substantially all of the assets of Purchaser (the "Acquisition") and Purchaser's
proposal to acquire a portion of the outstanding shares of Common Stock of
Xxxxxxx-Del.; and
WHEREAS, the Letter of Intent contemplates that Purchaser will make
offers to the holders of Xxxxxxx-Del. Series B Common Stock (the "Series B
Offer") and a tender offer to the holders of the Xxxxxxx Del. Series A Common
Stock (the "Series A Offer") to purchase, for a cash purchase price of $0.655
per share, an aggregate number of shares of the Xxxxxxx Del. Common Stock which,
when added to the number of shares of Xxxxxxx-Del Common Stock already owned by
Purchaser and its affiliates (and after giving effect to dispositions of
Xxxxxxx-Del. Common Stock held by Purchaser and its affiliates as contemplated
in the Letter of Intent), will cause Purchaser and its affiliates to own an
aggregate of approximately 49% (but in no event more than 49.9%) of the shares
of Xxxxxxx-Del. Common Stock outstanding; and
WHEREAS, Seller owns shares of Xxxxxxx-Del. Series B Common Stock
and, as part of the Series B Offer, Seller and Purchaser desire to enter into
this Agreement to provide for the sale by Seller to Purchaser of 1,937,486
shares (subject to adjustment as provided herein) of such Series B Common Stock
on the terms and subject to the conditions set forth herein.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and the
representations, warranties and covenants set forth in this Agreement, the
parties agree as follows:
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ARTICLE I
PURCHASE AND SALE
1.1 Purchase and Sale of Shares. At the Closing (as defined in
Section 1.3 of this Agreement), and on the terms and subject to the conditions
set forth in this Agreement, Seller agrees to sell, transfer and deliver to
Purchaser, and Purchaser hereby agrees to purchase and acquire from Seller,
1,937,486 shares of Xxxxxxx-Del. Series B Common Stock (the "Shares") for a cash
price of $0.655 per share, or an aggregate purchase price of $1,269,053.33 (the
"Purchase Price"). The number of Shares of Xxxxxxx-Del. Series B Common Stock to
be purchased and sold hereunder, and the aggregate Purchase Price to be paid
therefor, shall be subject to adjustment as provided in Section 4.1 and Section
7.12 of this Agreement.
1.2 Deliveries at Closing. At the Closing, Seller shall deliver to
Purchaser the certificate or certificates representing the Shares, duly endorsed
for transfer to, or accompanied by duly executed stock powers in favor of,
Purchaser or its nominee, and otherwise in a form acceptable for transfer on the
books of Xxxxxxx-Del., against payment by Purchaser of the Purchase Price by
wire transfer of immediately available funds to the account specified on
Schedule 1.2 attached hereto.
1.3 Closing. Unless otherwise agreed by the parties hereto, the
closing of the transaction contemplated in this Article I (the "Closing") shall
take place at the offices of Purchaser at 9:00 a.m. Pacific time on the second
business day following the delivery by Purchaser to Seller of written notice to
the effect that the conditions set forth in Sections 5.3(c), 5.3(d) and 5.3(e)
of this Agreement have been satisfied or waived. The date on which the Closing
occurs is hereinafter referred to as the "Closing Date."
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF PURCHASER
Purchaser hereby represents and warrants to Seller as of the date of
this Agreement and as of the Closing Date as follows (it being understood and
agreed that Purchaser makes no representations or warranties in connection with
the purchase and sale of the Shares hereunder other than as set forth in this
Article II and in Section 7.10 hereof):
2.1 Due Incorporation; Authority. Purchaser has been duly
incorporated and is validly existing in good standing under the laws of the
State of California. Purchaser has the corporate power and corporate authority
to execute and deliver this Agreement and to perform its obligations hereunder.
The execution and delivery of this Agreement, and the performance of Purchaser's
obligations hereunder, have been duly authorized by all necessary corporate
action on the part of Purchaser.
2.2 Binding Obligation. This Agreement has been duly executed and
delivered by Purchaser, and constitutes the legal, valid and binding obligation
of
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Purchaser, enforceable in accordance with its terms against Purchaser, except
that (a) such enforcement may be limited by the effect of applicable bankruptcy,
reorganization, insolvency, moratorium or similar laws relating to or affecting
creditors rights generally; and (b) such enforcement may be limited by general
principles of equity, including concepts of materiality, reasonableness, good
faith and fair dealing and the possible unavailability of specific performance
or injunctive relief, regardless of whether considered in a proceeding in equity
or at law.
2.3 No Conflict or Violation. Purchaser's execution and delivery of,
and performance of its obligations under, this Agreement do not (a) violate
Purchaser's articles of incorporation or bylaws, (b) constitute a material
breach or default under any existing obligation of or restriction on Purchaser
under any other agreement to which Purchaser is a party, or (c) breach or
otherwise violate any law, statute, rule, regulation, order or decree applicable
to Purchaser. No consent, order, permit or approval of any person or
governmental authority is required on the part of Purchaser for the execution
and delivery of, and performance of its obligations under, this Agreement.
2.4 Investment Intent. Purchaser is purchasing the Shares for its
own account and not with a view to distribution thereof within the meaning of
the Securities Act of 1933, as amended (the "Securities Act"). Purchaser is an
"accredited investor," as such term is defined in Rule 501(a) under the
Securities Act, which, by reason of its business and financial experience, has
such knowledge, sophistication and experience in business and financial matters
as to be capable of evaluating the merits and risks of the investment in the
Shares. Purchaser understands that (a) the Shares have not been registered under
the Securities Act and may not be offered or sold unless the Shares are
registered under the Securities Act or an exemption from the registration
requirements of the Securities Act is available, (b) if any transfer of the
Shares is to be made in reliance on an exemption under the Securities Act,
Xxxxxxx-Del. may require an opinion of counsel satisfactory to it that such
transfer may be made pursuant to such exemption, and (c) so long as deemed
appropriate by Xxxxxxx-Del., the Shares may bear a legend to the effect of
clauses (a) and (b) of this paragraph.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF SELLER
Seller represents and warrants to Purchaser as of the date of this
Agreement and as of the Closing Date as follows (it being understood and agreed
that Seller makes no representations or warranties in connection with the
purchase and sale of the Shares hereunder other than as set forth in this
Article III and in Section 7.10 hereof):
3.1 Organization and Good Standing; Authority. Seller has been duly
organized and is validly existing in good standing under the laws of its
jurisdiction of organization. Seller has the power and authority to execute and
deliver this Agreement and to perform its obligations hereunder. The execution
and delivery of this Agreement, and the performance of Seller's obligations
hereunder, have been duly authorized by all
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necessary corporate, partnership, limited liability company or trust action (as
the case may be) on the part of Seller.
3.2 Binding Obligation. This Agreement has been duly executed and
delivered by Seller, and constitutes the legal, valid and binding obligation of
Seller, enforceable in accordance with its terms against Seller, except that (a)
such enforcement may be limited by the effect of applicable bankruptcy,
reorganization, insolvency, moratorium or similar laws relating to or affecting
creditors rights generally; and (b) such enforcement may be limited by general
principles of equity, including concepts of materiality, reasonableness, good
faith and fair dealing and the possible unavailability of specific performance
or injunctive relief, regardless of whether considered in a proceeding in equity
or at law.
3.3 No Conflict or Violation. Seller's execution and delivery of,
and performance of its obligations under, this Agreement do not (a) violate
Seller's charter or other organizational documents, (b) to Seller's knowledge,
constitute a material breach or default under any existing obligation of or
restriction on Seller under any other agreement to which Seller is a party, or
(c) breach or otherwise violate any law, statute, rule, regulation, order or
decree applicable to Seller. No consent, order, permit or approval of any person
or governmental authority is required on the part of Seller for the execution
and delivery of, and performance of its obligations under, this Agreement.
3.4 Share Ownership. Seller's record and beneficial ownership of
Xxxxxxx-Del. equity securities is correctly set forth on Schedule 3.4 attached
hereto. Seller owns all of the Shares of record and beneficially, free and clear
of any charge, claim, property interest, right of first refusal, condition,
lien, option, pledge, security interest or other adverse claim or interest of
any kind (collectively, "Encumbrances"). At the Closing, Seller will transfer to
Purchaser good and title to the Shares, free and clear of all Encumbrances
except for such Encumbrances as may be imposed by applicable securities laws or
as may be otherwise expressly provided herein.
ARTICLE IV
ADDITIONAL AGREEMENTS
4.1 Purchase and Sale of Additional Series B Shares.
(a) Seller acknowledges that it is Purchaser's objective,
following the Closing of the Series A Offer and the Series B Offer, to
own (together with Purchaser's affiliates) an aggregate of approximately
49% (but in no event more than 49.9%) of Xxxxxxx-Del.'s outstanding
Common Stock. In the event that the Series A shareholders do not tender
a sufficient number of shares of Series A Common Stock in response to
the Series A Offer to enable Purchaser and its affiliates (after taking
into account the Series B shares to be acquired pursuant to the Series B
Offer and after giving effect to the possible disposition by Purchaser
and its affiliates of up to 8% of the outstanding shares of Xxxxxxx-Del.
Common Stock as contemplated in the Letter of Intent) to achieve the
desired
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31
ownership target, Seller hereby agrees to sell to Purchaser, and
Purchaser hereby agrees to purchase from Seller, at a price of $0.655
per share in cash, an additional number of shares of Series B Common
Stock owned by Seller so as to enable Purchaser and its affiliates to
reach the desired ownership target. The number of additional shares of
Series B Common Stock to be sold by Seller pursuant to this Section 4.1
shall be determined in accordance with the following formula:
Number of Additional Shares = A x B
---
C
Where A = Total number of additional shares of Xxxxxxx-Del.
Common Stock necessary to enable Purchaser and its
affiliates to achieve the desired ownership target;
B = Total number of shares of Xxxxxxx-Del. Common Stock
owned by Seller (after giving effect to the sale of the
Shares specified in Section 1.1 of this Agreement); and
C = Total number of shares of Xxxxxxx-Del. Common Stock
owned by each of the Series B shareholders identified on
Schedule 3.4 attached hereto (after giving effect to the
sale of the Shares specified in Section 1.1 of this
Agreement and in Section 1.1 of each of the agreements
entered into with the other Series B Shareholders in
connection with the Series B Offer).
(b) The number of additional shares of Series B Common Stock to
be purchased pursuant to this Section 4.1 (if any) shall be set forth in
the notice delivered by Purchaser to Seller in accordance with Section
1.3 of this Agreement. The purchase and sale of any additional shares of
Series B Common Stock pursuant to this Section 4.1 shall occur in the
same manner and at the same time as the transaction provided for in
Article I of this Agreement. The term "Shares," as used in this
Agreement, shall refer equally to any additional shares of Series B
Common Stock purchased and sold pursuant to this Section 4.1.
4.2 Agreements Not to Tender, Transfer or Acquire Shares. Seller
hereby agrees that, prior to the Closing, Seller will not:
(a) transfer or dispose of any interest in, tender (pursuant to
the Series A Offer or otherwise), or pledge or otherwise create (or
allow to exist) any Encumbrance on, any shares of Xxxxxxx-Del. Common
Stock which it owns (except as contemplated in this Agreement);
(b) convert any Series B shares which it owns into Series A
shares; or
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(c) acquire any beneficial interest in shares of Xxxxxxx-Del.
Common Stock or any options, warrants or other rights to acquire shares
of Xxxxxxx-Del. Common Stock.
Notwithstanding anything herein to the contrary, any affiliate of Seller which,
in the ordinary course of its business, engages in any of the following
activities may engage in such activities (other than for its own account) with
respect to shares of Xxxxxxx-Del. Common Stock and options, warrants or other
rights to acquire shares of Xxxxxxx-Del. Common Stock: brokerage, investment
advisory, investment company, financial advisory, anti-raid advisory, financing,
asset management, trading, market making, arbitrage and other similar
activities.
4.3 Restriction on Sales of Xxxxxxx-Del Common Stock by Purchaser.
Purchaser hereby agrees that during the period from the Closing Date through and
including the third anniversary of the Closing Date, Purchaser and its
affiliates will not sell or otherwise transfer for value any shares of
Xxxxxxx-Del. Common Stock (other than the 7,939,589 shares of Series A Common
Stock which are currently owned by Purchaser and its affiliates) unless such
sale takes place in connection with a transaction in which all other holders of
Xxxxxxx-Del. Common Stock are afforded an opportunity to participate pro rata
(based on ownership of Xxxxxxx-Del. Common Stock) and on the same terms and
conditions as Purchaser and its affiliates. Notwithstanding the foregoing,
nothing contained in this Section 4.3 shall prohibit any transfer of
Xxxxxxx-Del. Common Stock by Purchaser or any of its affiliates to (a) any other
affiliate of Purchaser, (b) Xxxxxxx Xxxx, his spouse or any of his lineal
descendants, (c) any person who acquires such shares under the terms of a will
or by the laws of descent and distribution, or (d) any trustee of any trust, the
beneficiaries of which consist only of Xxxxxxx Xxxx, his spouse or lineal
descendants, or any charitable organization as defined in Section 501(c)(3) of
the Internal Revenue Code of 1986, as amended, provided that any such permitted
transferee first agrees in writing to be bound by this Section 4.3 to the same
extent as Purchaser and its affiliates.
4.4 Consent to Transactions; Agreement to Vote in Favor of
Xxxxxxx-Del. Charter Amendments. Seller hereby approves of and consents to the
transactions contemplated in the Letter of Intent, a copy of which has
previously been provided to Seller. Subject to the condition set forth in the
next sentence, Seller hereby agrees to vote all shares of Xxxxxxx-Del. Common
Stock which it (or any of its affiliates) owns in favor the transactions
contemplated by such Letter of Intent which are submitted for a vote of
Xxxxxxx-Del. stockholders and for which approval has been recommended by the
Xxxxxxx-Del. Board of Directors. In particular, but conditioned upon the
understanding that such provisions will not be effective until after the closing
of the Series A Offer, the Series B Offer and the Acquisition, Seller agrees to
vote all shares of Xxxxxxx-Del. Common Stock which it (or any of its affiliates)
owns in favor of certain provisions proposed to be added to Xxxxxxx-Del.'s
certificate of incorporation (whether by amendment, merger or otherwise) which
would restrict the transfer of Xxxxxxx-Del shares by holders of 5% or
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more of its outstanding shares so as to avoid triggering certain tax law
provisions which could result in the loss of Xxxxxxx-Del.'s net operating losses
for tax purposes.
ARTICLE V
CONDITIONS TO CLOSING
The obligation of Purchaser and Seller to effect the Closing shall
be subject to the following conditions:
5.1 Conditions Precedent to Purchaser's and Seller's Obligations.
Purchaser's and Seller's respective obligations to consummate the purchase and
sale of the Shares hereunder and to take the other actions required to be taken
at the Closing are subject to the satisfaction as of the Closing Date of the
condition that the purchase and sale of the Shares as contemplated in this
Agreement shall not violate or contravene any applicable law, statute, rule,
regulation, order or decree of any governmental authority.
5.2 Conditions Precedent to Seller's Obligation to Close. Seller's
obligations to sell the Shares and to take the other actions required to be
taken by Seller at the Closing are subject to the satisfaction as of the Closing
Date of each of the following conditions (each of which may be waived by Seller,
in whole or in part):
(a) the representations and warranties of Purchaser contained in
this Agreement must have been true and correct in all respects on the
date of this Agreement and shall be true and correct in all respects as
of the Closing Date as if made on the Closing Date; and
(b) Purchaser shall have performed all of the covenants and
obligations that Purchaser is required to perform or to comply with at
or prior to the Closing pursuant to this Agreement.
5.3 Conditions Precedent to Purchaser's Obligation to Close.
Purchaser's obligations to purchase the Shares and to take the other actions
required to be taken by Purchaser at the Closing are subject to the satisfaction
as of the Closing Date of each of the following conditions (each of which may be
waived by Purchaser, in whole or in part):
(a) The representations and warranties of Seller contained in
this Agreement must have been true and correct in all respects on the
date of this Agreement and shall be true and correct in all respects as
of the Closing Date as if made on the Closing Date;
(b) Seller shall have performed all of the covenants and
obligations that Seller is required to perform or to comply with at or
prior to the Closing pursuant to this Agreement;
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(c) The stockholders of Xxxxxxx-Del., by a vote sufficient under
applicable law, shall have approved certain provisions which are
proposed to be added to Xxxxxxx-Del.'s certificate of incorporation
and/or bylaws to restrict transfers of shares of Xxxxxxx-Del. Common
Stock by holders of 5% or more of the outstanding Common Stock so as to
avoid triggering the change-in-control tax provisions which could result
in a loss of Xxxxxxx-Del.'s net operating losses for tax purposes, and
Xxxxxxx-Del. shall have notified Purchaser in writing of its intention
to effect such provisions (by filing with the Delaware Secretary of
State a certificate of amendment or certificate of merger) following and
conditioned only upon the closing of the Series A Offer and the Series B
Offer;
(d) Xxxxxxx-Cal. and Purchaser shall have closed the
Acquisition;
(e) Purchaser shall have purchased (or have the legally
enforceable right to purchase) shares of Xxxxxxx-Del. Common Stock
pursuant to the Series A Offer and/or the Series B Offer such that the
number of shares so purchased, when added to the number of shares of
Xxxxxxx-Del. Common Stock then owned by Purchaser and its affiliates,
causes Purchaser and its affiliates to own at least 49% (but not more
than 49.9%) of the outstanding shares of Xxxxxxx-Del. Common Stock; and
(f) upon the closing of the Series B Offer, no person (other
than Purchaser and its affiliates) shall own beneficially 5% or more of
the outstanding Common Stock of Xxxxxxx-Del.
ARTICLE VI
TERMINATION
6.1 Termination Events. This Agreement may, by written notice
delivered prior to the Closing, be terminated:
(a) by mutual consent of Purchaser and Seller;
(b) by Purchaser or Seller (if such party is not itself then in
breach), if a material breach of this Agreement has been committed by
the other party, and such breach has not been waived or cured within 10
calendar days of the date written notice of such breach is delivered to
the breaching party;
(c) by Purchaser or Seller if the Closing has not occurred
(other than through the failure of any party seeking to terminate this
Agreement to comply fully with its obligations under this Agreement) on
or before November 15, 1999, or such later date as the parties may agree
upon in writing;
(d) (i) by Purchaser, if any of the conditions in Section 5.3 of
this Agreement has not been satisfied as of the Closing Date or if
satisfaction of such a condition is or becomes impossible (other than
through the failure of
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Purchaser to perform its obligations under this Agreement), or (ii) by
Seller, if any of the conditions in Section 5.2 of this Agreement has
not been satisfied as of the Closing Date or if satisfaction of such a
condition is or becomes impossible (other than through the failure of
Seller to perform its obligations under this Agreement); or
(e) by Purchaser or Seller, if Purchaser, Xxxxxxx-Del. and
Xxxxxxx-Cal. terminate the Letter of Intent (or any definitive agreement
entered into with respect to the transactions contemplated by the Letter
of Intent), or the Letter of Intent (or any such definitive agreement)
expires in accordance with its terms prior to the Closing Date.
6.2 Effect of Termination. If this Agreement is terminated pursuant
to Section 6.1 hereof, all further obligations of the parties under this
Agreement shall terminate; provided, however, that a termination of this
Agreement shall not relieve any party of any liability it may have for breach of
any representation or warranty or nonperformance of any covenant or obligation
hereunder, or constitute a waiver of any available remedy (including specific
performance, if available) for any such breach or nonperformance.
ARTICLE VII
GENERAL PROVISIONS
7.1 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original but all of which taken together shall
constitute one and the same instrument.
7.2 Governing Law. This Agreement shall be governed by, interpreted
under, and construed and enforced in accordance with the laws of the State of
California applicable to agreements made and to be performed wholly within the
State of California, without regard to conflict of laws principles.
7.3 Entire Agreement. This Agreement contains all of the agreements
between the parties with respect to the matters contained herein and supersedes
all prior written or oral and all contemporaneous oral agreements or
understandings between the parties pertaining to any such matters. No provision
of this Agreement may be amended or added to except by an agreement in writing
signed by the parties to this Agreement or their respective successors in
interest and expressly stating that it is an amendment of this Agreement.
7.4 Further Assurances. The parties agree to do such further acts
and things and to execute and deliver such additional agreements and instruments
as any other party may reasonably require to consummate, evidence or confirm the
agreements contained herein in the manner contemplated hereby.
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7.5 Assignment. This Agreement and the rights, duties, and
obligations hereunder may not be assigned by any party prior to the Closing
without the prior written consent of the other party, and any attempted
assignment is void. Notwithstanding the foregoing, either Purchaser or Seller
may assign its rights and delegate its obligations under this Agreement to one
or more of their respective affiliates (as such term is defined in Rule 12b-2
under the Securities Exchange Act of 1934, as amended), provided that, in each
case, (a) the assignee first agrees in writing to be bound by the terms of this
Agreement, and (b) any such assignment and delegation shall not relieve
Purchaser or Seller of any of its obligations hereunder.
7.6 Successors and Assigns. Subject to Section 7.5 hereof, this
Agreement shall be binding upon each of the parties to it and their respective
successors and permitted assigns.
7.7 Severability. In the event any provision of this Agreement shall
finally be determined to be unlawful, such provision shall be deemed to be
severed from this Agreement and every other provision of this Agreement shall
remain in full force and effect.
7.8 Expenses. Each party shall bear its own expenses in connection
with the transactions contemplated hereunder. Each party further represents and
warrants that it has not engaged or authorized any broker, finder or similar
agent who would be entitled to a commission or other fee in respect of the
transactions contemplated hereunder.
7.9 Applicability in the Event of Conversion, Reclassification or
Exchange of Series B Common Stock. In the event that shares of Xxxxxxx-Del.
Series B Common Stock are converted, reclassified or split into, or otherwise
exchanged for, other securities of the same or different issuer, the terms and
provisions of this Agreement shall be deemed to apply to such other securities
with the same force and effect (with such adjustments to the number of
securities and the purchase price thereof as may be necessary or appropriate to
give effect to the parties' intent and the transactions contemplated hereunder).
7.10 Acknowledgement. Purchaser and Seller acknowledge that each of
them has a representative who is a director of Xxxxxxx-Del. and that each of
Purchaser and Seller may be deemed to be an affiliate of Xxxxxxx-Del. (as such
term is defined in Rule 12b-2 under the Securities Exchange Act of 1934, as
amended). Purchaser and Seller further acknowledge that each of them may have
confidential information concerning Xxxxxxx-Del.'s business and affairs which is
not public and may be considered material. Recognizing the foregoing, neither
Purchaser nor Seller has requested, desires or requires the other to disclose
any confidential information relating to Xxxxxxx-Del. or otherwise. Each of
Purchaser and Seller has conducted its own investigation, to the extent it has
determined necessary or desirable, in connection with the purchase and sale of
the Shares hereunder and expressly further acknowledges that (a) it has not
relied upon any representation, warranty or statement (other than the limited
representations, warranties and statements contained in this Agreement) made by,
nor upon any analysis
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of, the other in connection with the transactions contemplated hereunder, (b) it
has made its own investment analysis and decision to purchase or sell (as the
case may be) the Shares based upon such information as it has deemed
appropriate, and (c) it is voluntarily assuming all risks associated with the
purchase or sale (as the case may be) of the Shares hereunder resulting from the
failure to receive any such representations, warranties, statements or
confidential information.
7.11 Relationship to Other Series B Purchase Agreements. The parties
acknowledge that, in connection with the Series B Offer, Purchaser has entered
into or proposes to enter into agreements with the other holders of Xxxxxxx-Del.
Series B Common Stock to purchase from such holders additional shares of
Xxxxxxx-Del. Common Stock (such other agreements are attached hereto as Exhibit
B and referred to herein as the "Other Series B Agreements"). Purchaser agrees
that such Other Series B Agreements are to be identical in form and substance to
this Agreement, with only such differences as relate to the identity of the
seller and the number of shares of Xxxxxxx-Del. Common Stock to be purchased and
sold thereunder (it being understood that in the case of Foothill Capital
Corporation, such number is 710,574 shares of Xxxxxxx-Del. Series B Common
Stock, and in the case of each of the other Series B stockholders, such number
is that number of Series B shares as is necessary to reduce the total number of
shares of Xxxxxxx-Del. Common Stock (including any Xxxxxxx-Del. Series A shares)
owned by such Series B stockholder to below 5% of the total number of shares of
Xxxxxxx-Del. Common Stock outstanding). If the terms and conditions contained in
any of the Other Series B Agreements are modified from the terms or conditions
contained in this Agreement in any respect which is more advantageous to the
seller or sellers party thereto, Purchaser and Seller agree that (a) Purchaser
shall deliver to Seller prompt written notice of such modification (including
the text thereof), (b) this Agreement shall be deemed to be amended to reflect
such more advantageous terms or conditions (unless Seller notifies Purchaser to
the contrary in writing), and (c) Purchaser and Seller, upon request, will
promptly execute such agreements or instruments as may be necessary to evidence
such amendment.
7.12 Increase in Series A Offering Price. In the event that the
purchase price paid by Purchaser in the Series A Offer is increased above $0.655
per share in cash, then the purchase price to be paid by Purchaser under this
Agreement for each of the Shares shall be increased by the same incremental
amount above $0.655 per share.
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IN WITNESS WHEREOF, the parties hereto have executed this Stock
Purchase and Sale Agreement as of the day and year first above written.
"PURCHASER"
XXXXXXX XXXX HOMES, INC.
By: /s/ Xxxxxxx Xxxx
------------------------------------
Xxxxxxx Xxxx
Chairman, President and CEO
"SELLER"
ING (U.S.) CAPITAL LLC
By: /s/ Xxxx Xxxxxxxxxxx
------------------------------------
Xxxx Xxxxxxxxxxx
Senior Vice President
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SCHEDULE 3.4
SHARE OWNERSHIP
Series A Shares Series B Shares
First Plaza Group Trust 1,697,325 5,099,206
GS Credit Partners, L.P. -- 5,920,362
ING (U.S.) Capital LLC (as nominee of
ING Equity Partners, L.P. I)
-- 4,547,269
Foothill Capital Corporation -- 1,836,109
