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Exhibit 2.2
AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF MERGER
This Amendment No. 1 (this "Agreement") dated as of August 1, 1996,
shall amend that certain Agreement and Plan of Merger (the "Merger Agreement")
dated as of June 30, 1996, by and between Purchaser, Newco, Chaney, Finke, T.
Kesterson and J. Kesterson. All initial capitalized terms not otherwise
defined in this Agreement shall have the meanings set forth in the Merger
Agreement.
The parties to this Agreement hereby agree as follows:
1. The following shall be added as the second sentence of Recital
C of the Merger Agreement:
"The parties intend for the Merger to be treated as a tax free
exchange and agree to treat the Merger as a tax free exchange
for all purposes."
2. The parties agree that the 1,155,556 shares of PHH Common
Stock constituting the non-cash portion of the Purchase Price shall be
adjusted to reflect Purchaser's five-for-four stock split effected in
the form of a dividend to shareholders of record as of July 26, 1996.
Accordingly, the parties agree that the non-cash portion of the
Purchase Price shall consist of 1,444,445 shares of PHH Common Stock.
3. Section 2.8(a)(viii) shall be amended in its entirety to read
as follows:
"(viii) executed Special Warranty Deeds conveying the property
owned by certain of the Stockholders and leased to the Newco
Partnership for retail sales centers in Cleveland, Texas and
Tyler, Texas, together with executed Assignments and
Assumption of Leases relating thereto;"
4. Section 2.8(a)(ix) shall be amended to read as follows:
"(ix) the Schedules to this Agreement; and"
5. Section 2.8(a) shall be amended to add the following:
"(x) executed Purchase Options relating to the four properties
owned by certain of the Stockholders and leased to the Newco
Partnership for retail sales centers in San Antonio, Texas
(2), Mesquite, Texas and Albuquerque, New Mexico."
6. Section 3.10(e) shall be amended to revise the fourth sentence
to insert the following at the beginning of such sentence: "Except as
set forth on Schedule 3.10,"
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7. Section 3.12 shall be amended to: (a) insert the following at
the beginning of the first sentence "Except as disclosed on Schedule
3.11 or Schedule 3.12 hereto, (b) revise the second sentence to delete
the parenthetical; and (c) revise the last sentence in its entirety to
read as follows: "Except as set forth on Schedule 3.12 and except in
the ordinary course of business since the date of the Balance Sheet,
there has been no material change in the list of assets owned or
leased by the Newco Entities."
8. Section 3.14 shall be amended to revise the second sentence in
its entirety to read as follows:
"Except as disclosed on Schedule 3.12, the accounts receivable
listed on Schedule 3.14 hereto are current and collectable,
and, except in the ordinary course of business or as set forth
on Schedule 3.14 or Schedule 3.12, there are no counterclaims
or set-offs against accounts receivable currently
outstanding."
9. Section 9.1 shall be amended to revise the first sentence in
its entirety to read as follows:
"9.1 INDEMNIFICATION FOR BREACHES. Each of the parties
hereto (hereafter, the "Indemnifying Party") will severally
(37.1% for each of Chaney and Finke, 19.9% for T. Kesterson
and 5.9% for J. Kesterson) indemnify and hold harmless the
other party and its respective representatives, successors and
assigns, and any officer, director, agent or employee of any
such person or entity (hereafter, collectively the
"Indemnified Parties"), from and against any damages, loss,
cost, expense, obligation, claim or liability, including
reasonable attorney's fees and reasonable third party expense
of investigating, defending or prosecuting litigation
(collectively, the "Damages") suffered by the Indemnified
Parties, arising from or by reason of (i) the breach by or any
inaccuracy of any warranty, representation or covenant made by
the Indemnifying Party, or (ii) the failure of any
Indemnifying Party to perform any of its obligations under the
terms of the agreements establishing the stock appreciation
right awards granted to certain employees of Newco Homes, L.P.
selected by the Stockholders."
10. Section 9.2 shall be amended to revise the first sentence in
its entirety to read as follows:
"9.2 NATURE AND SURVIVAL OF REPRESENTATIONS, WARRANTIES AND
INDEMNITIES. Unless otherwise provided in this Agreement, all
representations, warranties, covenants and agreements made by
the parties hereto in this Agreement or in the documents and
instruments delivered pursuant hereto or in connection
herewith shall survive the Closing, the delivery of any
instrument of conveyance, and the Merger of Newco or merger
and dissolution of any of the other Newco Entities and shall
remain effective and enforceable for a period of two years
from the Closing Date; provided, however, that the
indemnification relating to the stock
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appreciation rights described above shall survive for the term
of the respective stock appreciation rights."
10. Purchaser represents and warrants to the Stockholders that
when issued in accordance with the Merger Agreement and this Agreement, the
1,444,445 shares of PHH Common Stock to be issued in the aggregate to the
Stockholders shall be validly issued, fully paid and nonassessable, free and
clear of all Liens and preemptive rights.
11. All other provisions of the Merger Agreement shall remain in
full force and effect in accordance with the terms of the Merger Agreement.
12. The parties hereto agree that the Purchase Price shall be
allocated among the Shareholders as follows:
Chaney 535,914 shares of PHH Common Stock
$6,430,962
Finke 551,397 shares of PHH Common Stock
$6,059,375
T. Kesterson 286,916 shares of PHH Common Stock
$3,442,996
J. Kesterson 70,218 shares of PHH Common Stock
$1,400,000
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
NEWCO HOMES, INC.
/s/ Scott W. Chaney
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Scott W. Chaney, President
PALM HARBOR HOMES, INC.
/s/ Lee Posey
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Lee Posey, Chairman of the Board
and Chief Executive Officer
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STOCKHOLDERS:
/s/ Scott W. Chaney
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Scott W. Chaney
/s/ Christopher M. Finke
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Christopher M. Finke
/s/ Thomas B.Kesterson
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Thomas B. Kesterson
/s/ Joseph H. Kesterson
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Joseph H. Kesterson
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The undersigned spouses have joined in this Agreement for the sole
purpose of subjecting to the provisions of this Agreement any community
property interest in the Newco Common Stock that such spouse may own.
/s/ Kathleen Marie Chaney
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Kathleen Marie Chaney
/s/ Melanie Finke
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Melanie Finke
/s/ Darci Kesterson
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Darci Kesterson
/s/ Kim Kesterson
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Kim Kesterson
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