EXHIBIT 8
PURCHASE AND SALE AGREEMENT
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This Agreement (the "Agreement") is made and entered into as of December
14, 1998 between Apollo Home Partners, L.P., a Delaware limited partnership
(hereinafter, the "Seller") and Xxxxxx, Inc., a New Jersey corporation (the
"Buyer").
WHEREAS, Buyer desires to purchase and Seller desires to sell 886,000
shares of Common Stock (the "Shares") of the Company.
WHEREAS, Seller is also entering into an agreement with Xxxxxxx X.
Xxxxxxxxx and Xxxxx X. Xxxxxxxxx to sell 1,772,000 shares of Common Stock of
Xxxxxx, Inc. simultaneously herewith (the "Xxxxxxxxx Sale");
NOW, THEREFORE, in consideration of the mutual covenants, agreements and
understandings herein contained, the parties hereto agree as follows:
1. Purchase and Sale.
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1.1. For and in consideration of the Purchase Price being paid to Seller
simultaneously herewith as provided in Section 1.2, Seller does hereby
irrevocably sell, assign, transfer and set over all of its right, title and
interest in and to the Shares to the Buyer.
1.2. For and in consideration of the sale, assignment and transfer of the
Shares to Buyers as provided herein, simultaneously herewith Buyer is paying to
the Seller an amount equal to Purchase Price, by wire transfer of immediately
available funds. The Purchase Price shall be as set forth in EXHIBIT A.
1.3. Settlement shall be through Depository Trust Company ("DTC"), if the
Shares are issued of record to DTC, in which such event Seller shall cause
accounts at DTC of Buyer's nominee set forth on EXHIBIT B to be credited with
the Shares and Buyer shall cause the Purchase Price to be paid to the Seller in
immediately available funds pursuant to the wire instructions set forth in
EXHIBIT C.
1.4. The Seller and the Buyer hereby acknowledge that a Special Meeting of
Shareholders of the Company will be held on December 30, 1998 (the "Meeting")
and that pursuant to the Company's proxy statement relating to the Meeting, the
Seller, as the beneficial owner of the Shares as of the record date set forth in
such proxy, is entitled to direct its nominee to vote the Shares at such
Meeting. In connection therewith and as a condition to the purchase of the
Shares by the Buyer pursuant to this Agreement, the Seller agrees that it shall
cause its nominee to deliver to Buyer, as soon as practicable after the date of
this Agreement, an irrevocable proxy (the "Proxy"), to vote the Shares at the
Meeting which shall be marked to indicate a vote in favor of the sale of Xxxxxx
Homes, Inc. to Centex Real Estate Corporation; provided, however, that the Buyer
hereby agrees to indemnify, defend and hold harmless Seller, including its
officers, directors, partners and control persons (as defined in the Securities
Act of 1933, as amended), from any and all claims, damages, losses or
liabilities which may arise as a result of (i) any breach of this Agreement by
the Buyer, (ii) the delivery of the Proxy, or (iii) the Seller's nominee voting
the Shares in accordance with the instructions of the Buyer as provided for
herein. Seller acknowledges and agrees that the Proxy shall be coupled with an
interest.
1.5. The Seller and Buyer hereby agree and acknowledge that it is a
condition of the obligation of the Seller to sell the Shares to the Buyer that
the purchase and sale of the Shares made hereby and the Xxxxxxxxx Sale be
consummated simultaneously.
2. Representations of Seller. Seller represents and warrants to Buyer the
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following:
2.1. Seller is a limited partnership duly organized, validly existing
and in good standing under the laws of the State of Delaware.
2.2. Seller has full partnership power and authority to execute,
deliver and perform its obligations under this Agreement, and to sell the Shares
to the Buyer. Neither the execution, delivery and performance of this Agreement
nor the sale of the Shares to the Buyer has resulted, or will result, in any
breach of any provision of, or constitute a default (or an event of which with
or without notice or lapse of time, or both, would constitute a default) under,
the Seller's partnership document or any agreement or instrument to which the
Seller is a party or by which it is bound, or any statue, order, rule or
regulation of any court or other governmental authority applicable to it.
2.3. This Agreement has been duly and validly authorized, executed
and delivered and constitutes the legal, valid and binding obligations of the
Seller, enforceable against the Seller, in accordance with its terms.
2.4. Seller has not pledged, encumbered, assigned, transferred,
conveyed, disposed of or terminated, in whole or in part, any of its right,
title and interest in or to the Shares or suffered to exist any liens on such
right, title and interest, and the Seller owns, beneficially and of record, the
Shares free and clear of any adverse claims, including, without limitation, any
liens, charges and other encumbrances (collectively "Liens"). Further, Seller
shall deliver to Buyer the Shares free and clear of any Liens other than any
Liens that may be imposed under securities laws.
2.5. Seller is and has been at all times for more than three years
prior to the date hereof the beneficial owner of the Shares.
2.6. Seller acknowledges receipt of the Company's (i) 1997 Annual
Report to Shareholders, (ii) Report on Form 10-K for the fiscal year ended
November 30, 1997, (iii) Report on Form 10Q for the quarter ended August 31,
1998 and (iv) the Proxy Statement dated December 4, 1998.
3. Representations and Warranties of the Buyer. Buyer hereby represents
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and warrants to the Seller as follows:
3.1. Buyer has full corporate power and authority to execute, deliver
and perform its obligations under this Agreement. The execution and delivery of
this Agreement, the performance of Buyer's obligations hereunder and the
consummation by Buyer of the transactions contemplated hereby have been duly
approved by all requisite corporate action on the part of the Buyer. Neither the
execution, delivery and performance of this Agreement has resulted, or will
result, in any breach of any provision of, or constitute a default (or an event
of which with or without notice or lapse of time, or both, would constitute a
default) under, the Buyer's charter documents, if applicable, or any agreement
or instrument to which the Buyer is a
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party or by which it is bound, or any statute, order, rule or regulation of any
court or other governmental authority applicable to it.
3.2. This Agreement has been duly and validly authorized, executed and
delivered and constitutes the legal, valid and binding obligations of the Buyer,
enforceable against the Buyer, in accordance with its terms.
3.3. Buyer understands that the Shares have not been registered under
the Securities Act of 1933, as amended (the "Act"), and may not to be sold
except pursuant to an effective registration statement, or pursuant to a duly
available exemption from such registration requirements. Buyer further
acknowledges that, so long as appropriate, a legend Similar to the following may
appear on the certificates representing the Securities:
"[T]hese securities have not been registered under the Securities Act
of 1933 and may be reoffered and sold only if so registered or if an
exemption from registration is available."
3.4. The Shares were not offered or sold to the undersigned by any
form of general solicitation or general advertising.
3.5. Buyer acknowledges that the purchase of the Shares does not
violate any law or regulation applicable to it or its business.
4. Miscellaneous.
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4.1. Survival. All representations, warranties, and covenants made by
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the parties hereto shall be considered to have been relied upon by the parties
hereto and shall survive the execution, performance and delivery of this
Agreement and all other documents contemplated herein.
4.2. Successors and Assigns. This agreement shall inure to the benefit
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of and be enforceable by, and shall be binding upon and enforceable against, the
respective parties hereto and their successors and assigns.
4.3 Costs and Expenses. Except as otherwise expressly provided for
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herein, each party to this Agreement shall bear it own costs and expenses,
including but not limited to attorney's fees and expenses, in connection with
the preparation, review and execution of this Agreement.
4.4 Governing Law. This Agreement shall be construed in accordance
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with and be governed by the internal laws of the State of New York without
reference to conflict of laws principles.
4.5 Specific Performance. Buyer and Seller each acknowledges that
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damages would be an inadequate remedy for breach of this Agreement and that
Buyer and Seller, respectively, shall each be entitled to specific performance
and other equitable relief in addition to other applicable remedies.
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4.6. Counterpart Execution. This Agreement may be executed in two or more
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counterparts, each of which shall constitute an original, but when taken
together, shall constitute one and the same instrument.
4.7. Integration. This Agreement constitutes the entire agreement and
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understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements, understandings or representations
pertaining to the subject matter hereof, whether oral or written.
4.8. Interpretation. Each of Seller and Buyer acknowledge and agree that
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they have been represented by or had the opportunity for representation of
counsel in connection with the matters contemplated hereby and further that this
Agreement shall not be construed either for or against either party by reason of
its preparation.
4.9. Further Assurances. Each of Seller and Buyer agree to execute and
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deliver to the other party hereto such additional documents or instruments as
such other party may reasonably request in order to fully effect the purposes
and intent of, and the transactions contemplated by, this Agreement.
4.10. Termination. In the event that the purchase and sale of the Shares as
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set forth herein is not consummated on or before December 14, 1998, this
Agreement shall terminate and be of no force or effect.
IN WITNESS WHEREOF, the parties hereby execute this Agreement as of the
date first written above.
"SELLER"
APOLLO HOME PARTNERS, L.P.
By: AIF II, L.P.
Its General Partner
By: Apollo Advisors, L.P.
Its Managing Partner
By: /s/ Xxxxxxxx X. Xxx
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Title: Authorized Person
"BUYER"
XXXXXX, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Title: Xxxxxxx X. Xxxxxxxxx, President
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EXHIBIT A
DESCRIPTION OF SHARES:
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886,000 shares of Common Stock of the Company
PRICE PER SHARE:
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$1.125
TOTAL PURCHASE PRICE:
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$996,750 (the "Purchase Price")
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