AMENDMENT TO STOCK PURCHASE AGREEMENT
AMENDMENT, dated as of February 1, 2000, by and among XXXXXXXXX & CO INC.,
a Delaware corporation ("PURCHASER"), XXXXXXXXX BROTHERS HOLDINGS, INC., a
Delaware corporation (the "COMPANY"), and Xxxxx X. Xxxxxxx, Xx. and L. Xxxxxx
Xxxxxxxxx, as authorized representatives (the "REPRESENTATIVES") of the persons
listed on SCHEDULE A hereto (the "STOCKHOLDERS"), to the Stock Purchase
Agreement, dated as of December 23, 1999 (the "AGREEMENT"), by and among
Purchaser, the Company and the Stockholders. All capitalized terms used herein
and not otherwise defined shall have the meanings ascribed to them in the
Agreement.
W I T N E S S E T H:
WHEREAS, Purchaser, the Company and the Stockholders are all parties to
the Agreement;
WHEREAS, Purchaser, the Company and the Stockholders desire to amend
certain terms of the Agreement in order to clarify that Xxxxxxxxx Brothers, Inc.
and XxXxxxxxx & Co., and not the Company and Purchaser, respectively, are
registered broker-dealers and NYSE specialists; and
WHEREAS, pursuant to Section 2.3 of the Agreement, the Representatives are
authorized to execute and deliver this Amendment for and on behalf of the
Stockholders.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound, the parties
hereby agree as follows:
1. The first clause of the recital of the Agreement is hereby amended
to read in its entirety as follows:
"WHEREAS, HBI (as defined below) is a registered broker-dealer
and New York Stock Exchange ("NYSE") specialist;"
2. Section 4.4 of the Agreement is hereby amended to read in its
entirety as follows:
"SECTION 4.4 REGULATORY MATTERS AND ACCOUNT DOCUMENTATION. HBI
is and has been duly registered as a broker-dealer with the SEC and
the NASD and in the states where such registration is required under
the securities laws of such states. HBI is and has been duly
registered as a NYSE specialist. The Company, its Subsidiaries and
their employees are in compliance in all material respects with all
federal and state laws and NYSE rules regulating broker-dealers or
specialists or requiring registration, licensing or qualification as
a broker-dealer or specialist, and each of the Company and its
Subsidiaries is a member in good standing and has all material
licenses and authorizations in self-regulatory or trade
organizations or registered clearing agencies required to permit the
operation of its business as presently conducted. Each such federal,
state and NYSE registration is in full force and effect. The Company
has furnished to Purchaser a true, correct and complete copy of
HBI's Form BD, as amended to date, filed by HBI with the SEC and
NASD.
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The Company has in its files for each of its and its Subsidiaries'
existing customer accounts, all appropriate material applications,
certificates, agreements and other material documentation necessary
or appropriate in connection with the current and historical level
and type of trading or other activities engaged in within such
accounts ("DOCUMENTATION"). All Documentation has been duly executed
and delivered to the Company or the relevant Subsidiary of the
Company by the appropriate person or persons with respect to each
such account."
3. Section 5.4 of the Agreement is hereby amended to read in its
entirety as follows:
"SECTION 5.4 REGULATORY MATTERS. XxXxxxxxx & Co. is and has
been duly registered as a broker-dealer with the SEC and in the
states where such registration is required under the securities laws
of such states in order to conduct its business as presently
conducted. XxXxxxxxx & Co. is and has been duly registered as a NYSE
specialist. Purchaser, its Subsidiaries and their employees are in
compliance in all material respects with all federal and state laws
and NYSE rules regulating broker-dealers or specialists or requiring
registration, licensing or qualification as a broker-dealer or
specialist, and each of Purchaser and its Subsidiaries is a member
in good standing and has all material licenses and authorizations in
self-regulatory or trade organizations or registered clearing
agencies required to permit the operation of its business as
presently conducted. Each such federal, state and NYSE registration
is in full force and effect."
4. The representations and warranties contained in each of Sections 4.4
and 5.4 shall be deemed to be amended as set forth in this Amendment
for all purposes of the Agreement (including Sections 8.1, 8.2, 9.3,
9.4 and 10.1), as may be amended from time to time.
5. Except as expressly amended in this Amendment, the Agreement shall
remain in full force and effect as the same were in effect
immediately before the effectiveness of this Amendment.
6. This Amendment shall be governed and construed on the same basis as
the Agreement, as set forth therein.
7. This Amendment may be executed in several 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 written above.
XXXXXXXXX & CO INC.
By: /s/ XXXXXX X. X. XXXXXXXXX, XX.
-----------------------------------------
Name: Xxxxxx X. X. XxXxxxxxx, XX.
Title: Chairman, Chief Executive Officer
and President
XXXXXXXXX BROTHERS HOLDINGS, INC.
By: /s/ XXXXX X. XXXXXXX, XX.
-----------------------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
Title: Chairman
THE STOCKHOLDERS
By: /s/ XXXXX X. XXXXXXX, XX.
----------------------------------------
Xxxxx X. Xxxxxxx, Xx.,
as Attorney-in-Fact
By: /s/ L. XXXXXX XXXXXXXXX
------------------------------------
L. Xxxxxx Xxxxxxxxx,
as Attorney-in-Fact
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SCHEDULE A
NAME
XXXXX XXXXX
XXXXX XXXXXXX
XXXXXXX X. XXXXXXXXX
XXX X. XXXXXXXXX
XXXXX XXXXXXXXX
XXXXX X. XXXXXXXXX, XX.
XXXX XXXXXXXXX
XXXXXX X. XXXXXX
XXXXX X. XXXXXXX, XX.
XXXXX X. XXXXXXX, XX.
XXXXXXXXX XXXX
XXXX XXXXXXX
XXXXXXX XXXXXXX
XXXXXX XXXXXXXXX
XXXX XXXXXXX
XXXXX X. XxXXXX
XXXXX XXXXX
XXXXXXX XXXXX
L. XXXXXX XXXXXXXXX
XXXXXXX X. XXXXX
XXXX XXXXXX
XXXXXXX X. XXXXXXX
XXXXXX XXXXX
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