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EXHIBIT 2.2
FIRST AMENDMENT TO
STOCK PURCHASE AGREEMENT
AND
PLAN OF REORGANIZATION
This First Amendment to Stock Purchase Agreement and Plan of
Reorganization (the "Amendment"), dated as of August 31, 1998, is entered into
by and among R-Anell Custom Homes, Inc., a North Carolina corporation
("R-Anell"), Gold Medal Homes, Inc., a North Carolina corporation ("GMHI"), Gold
Medal Homes of North Carolina, Inc., a North Carolina corporation ("GMHNC")
(R-Anell, GMHI and GMHNC are sometimes each referred to herein as a "Company,"
and collectively as the "Companies"), the holders of all of the outstanding
capital stock of the Companies (collectively, the "Shareholders") (the Companies
and the Shareholders are sometimes referred to collectively as the "Sellers"),
and American Homestar Corporation, a Texas corporation ("Purchaser" or "AHC").
Except as otherwise defined herein, capitalized terms used in this Amendment
shall have the meanings assigned to them in the Purchase Agreement (as defined
below).
W I T N E S S E TH:
WHEREAS, the parties hereto are parties to that certain Stock Purchase
Agreement and Plan of Reorganization, dated as of May 26, 1998 (the "Purchase
Agreement"); and
WHEREAS, the parties hereto desire to amend the Purchase Agreement to
the extent provided below;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
A. Amendment to Agreement. The Purchase Agreement is hereby
amended as follows:
1. The definition of "Closing Date," "Drop Dead Date," "First
Period" and "Second Period" set forth in Exhibit A are hereby amended to read in
their entirety as follows:
"CLOSING DATE" shall mean the date of Closing, which date
shall be December 1, 1998; provided, however, that such date may be extended by
written agreement of the parties.
"DROP DEAD DATE" shall mean December 1, 1998; provided,
however, that such date may be extended by written agreement of the parties in
the event of an extension of the Closing Date.
"FIRST PERIOD" shall mean the period from December 1, 1998 to
May 31, 1999, regardless of when the Closing shall occur.
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"SECOND PERIOD" shall mean the period from December 1, 1998 to
November 30, 1999, regardless of when the Closing shall occur.
2. Section 1.2(b) shall be restated in its entirety as
follows:
"(b) $26,575,000 (less the amount of Net Debt of the
Companies as of December 1, 1998 (as may be adjusted pursuant
to Section 5.2 below) (the "Cash Consideration"), an estimated
amount of which shall be payable in cash at the Closing. The
Net Debt of the Companies shall be calculated as set forth on
Schedule 1.2(b). Not less than 30 days prior to Closing,
Sellers will deliver to AHC Seller's estimate of the amount of
Net Debt as of December 1, 1998 (the "Estimated Net Debt");
and will provide AHC and its auditors with access to the work
papers, books and records used in making such calculation. If
AHC objects to Seller's calculation, it shall within 15 days
after its receipt thereof describe and deliver to Sellers in
writing the basis and amounts of such objection, including a
statement of AHC's calculation of Estimated Net Debt. If AHC
fails to object within the above 15-day period, Sellers'
calculation of the Estimated Net Debt shall be used to
determine the amount of Cash Consideration to be paid at
Closing. If AHC objects within the above 15-day period to such
calculation, and the parties are unable prior to Closing to
reach agreement on the amount of the Estimated Net Debt, then
the amount of Estimated Net Debt used to determine the Cash
Consideration to be paid at Closing shall be equal to the
average of the Estimated Net Debt determined by Sellers and
the Estimated Net Debt determined by AHC.
On or prior to December 31, 1998, Sellers shall
deliver to AHC Seller's determination of the actual Net Debt
as of December 1, 1998 (the "Actual Net Debt"); and will
provide AHC and its auditors with access to the work papers,
books and records used in making such calculation. If AHC does
not give written notice of objection to Seller's determination
within 15 days after receipt thereof, then the Actual Net Debt
determined by Sellers shall constitute the final and binding
Net Debt determination, and the parties shall promptly upon
expiration of such 15-day period make any payments necessary
to reconcile any overpayment or underpayment in the Cash
Consideration paid at Closing resulting from a difference
between the Estimated Net Debt used to calculate the Cash
Consideration paid at Closing and Actual Net Debt.
If AHC objects to the Seller's Actual Net Debt
calculation within such 15-day period, and the parties are
unable within 15 days following such objection to reach
agreement on the amount of the Actual Net Debt, they shall
submit the Actual Net Debt calculation to a mutually agreed
upon office
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of a nationally recognized independent certified public
accounting firm, which shall not have served as the principal
outside auditor for either party during the preceding three
years (the "Third Party Accountant"). The determination of
Actual Net Debt made by the Third Party Accountant shall be
final and binding upon the parties. Within 10 days after the
determination of Actual Net Debt made by the Third Party
Accountant, the parties shall make any payments necessary to
reconcile any overpayment or underpayment at Closing in the
Cash Consideration resulting from a difference between the
Estimated Net Debt and Actual Net Debt. Shareholders and AHC
shall bear their own costs and expenses in connection with the
foregoing determinations; provided, that any fees and expenses
charged by the Third Party Accountant shall be paid one-half
by AHC and one-half by Shareholders."
3. Sections 7.1, 7.2, 7.4, 7.5, 7.7, 8.1, 8.2, 8.4, 8.5
and 8.6 are hereby deleted in their entirety.
4. The following shall be added as Section 11.10:
"SECTION 11.10. SHAREHOLDER GUARANTIES. In addition
to its other obligations under this Article XI, Purchaser
shall indemnify, defend and hold harmless Shareholders and
their successors from and against any Damages they incur after
Closing as a result of the personal guaranties of the
Shareholders set forth on Schedule 8.6. The obligations of
Purchaser under this Section 11.10 shall not be subject to the
limitations set forth in Section 11.2."
B. Miscellaneous.
1. Except as specifically provided herein, the Agreement
shall remain in full force and effect. The parties (i) acknowledge their
respective obligations under the Purchase Agreement, as expressly amended by
this Amendment, and each party confirms that the others are in compliance in all
material respects therewith; and (ii) agree that this Amendment in no manner
constitutes a waiver or release of the parties' rights or obligations under the
Purchase Agreement.
2. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
AMERICAN HOMESTAR CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxx, Xx.
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Xxxxxxxx X. Xxxxxx, Xx.
President
R-ANELL CUSTOM HOMES, INC.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx Xxx Xxxxx
President
GOLD MEDAL HOMES, INC.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx Xxx Xxxxx
President
GOLD MEDAL HOMES OF NORTH CAROLINA,
INC.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx Xxx Xxxxx
President
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
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/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
XXXXXX X. XXXXX RETAINED ANNUITY
TRUST NUMBER ONE
By: /s/ Xxxxx Xxxxx Xxxxxx
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Xxxxx Xxxxx Xxxxxx, Trustee
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, Trustee
XXXXXX X. XXXXX RETAINED ANNUITY
TRUST NUMBER TWO
By: /s/ Xxxxx Xxxxx Xxxxxx
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Xxxxx Xxxxx Xxxxxx, Trustee
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, Trustee
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