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:
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 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 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 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
(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 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;
(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 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.
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 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.
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
________________________________
Name: Xxxx Xxxxxxxxxxx
Title: Senior Vice President
Address:________________________
________________________
________________________
Facsimile:______________________
EXHIBIT A
LETTER OF INTENT
EXHIBIT B
OTHER SERIES B AGREEMENTS
SCHEDULE 1.2
WIRE TRANSFER INSTRUCTIONS
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
