SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT
THIS SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT (this "Second
Amendment") is made as of October 12, 2000, by and among Buyer (as defined in
the Agreement) and the Shareholders (as defined in the Agreement) and Homada
LLC, a California Limited Liability Company.
RECITALS
A. Each of the parties hereto, except Homada LLC, is a party to that
certain Stock Purchase Agreement dated as of October 27, 1999 (the
"Agreement"), as amended December 15, 1999.
B. Buyer has not made the cash payment due under Section 2.02(a)(iii)
of the Agreement on March 10, 2000, but has established an Escrow
Account pursuant to Section 2.02(b) of the Agreement.
C. Shareholders have assigned all of their respective rights under
Section 2.04 of the Agreement to Homada, LLC, a California Limited
Liability Company.
D. The Buyer desires to have the right to extend the time to make
certain cash payments to Shareholders under the Agreement.
E. The Shareholders have requested that, in return for such possible
delay in receiving cash payments, that they receive additional
security in the form of Buyer Common Stock and a personal guaranty
by Max Munn of Buyer's payment obligations under the Agreement.
F. The parties recognize that the present Fair Market Value of Buyer
Common Stock is depressed and Buyer desires that such shares remain
in escrow so that the Fair Market Value may increase over time.
G. Each of the parties hereto desires to amend the Agreement as set
forth herein, and desire that, except as set forth in this Second
Amendment, the Agreement shall remain in full force and effect.
NOW THEREFORE, in consideration of the premises and the respective
representations, warranties, covenants, agreements and conditions hereinafter
set forth, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Definitions. Capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to them in the Agreement (without regard
to this Second Amendment).
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2. Amendment. The Agreement is hereby amended as follows on and as of, and
only upon, the date hereof:
(a) Section 2.02(a)(iii) is amended to read as follows:
"(iii) Three Million Three Hundred Eighty-seven Thousand Five Hundred
Twenty-six Dollars ($3,387,526) payable as follows in accordance with
Schedule 2.02(a)(iii):
"(A) One Million Dollars ($1,000,000) shall be paid to Shareholders
by Buyer on or before October 30, 2000;
"(B) One Million Three Hundred Eighty-seven Thousand, Five Hundred
Twenty-six Dollars ($1,387,526) shall be paid to Shareholders from
available cash in Concepts 4, Inc. upon execution of this Second Amendment
or at such other time(s) as agreed to jointly and in good faith by James
McCorry, currently the President of Habitat Solutions, Inc. and a
representative of the Shareholders. Permission to withdraw cash from
Concepts 4, Inc. shall not be unreasonably withheld by either party.
"(C) One Million Dollars ($1,000,000) shall be paid to Shareholders
by Buyer no later than December 10, 2000. Part of said payment may be paid
to Shareholders from available cash in Concepts 4, Inc. in the discretion
of a representative of the Shareholders. Permission to withdraw cash from
Concepts 4, Inc. shall not be unreasonably withheld by either party.
"Interest will accrue on the payments due under Subparagraphs (A), (B) and
(C), above, at eight percent (8%) per annum, based upon a 365-day year,
from the applicable due dates set forth above."
(b) Section 2.02(c) shall be amended in its entirety as follows:
"(c) Having failed to make the payment due pursuant to former Section
2.02(a)(iii), Buyer delivered to an escrow account (the "Escrow Account"),
established by U.S. Bank Trust, N.A. (the "Escrow Agent") restricted Buyer
Common Stock (the "Escrow Shares") the Fair Market Value of which was
equal to Two Million Eight Hundred Twenty-Two Thousand Nine Hundred
Thirty-Eight Dollars ($2,822,938). The escrow agreement shall terminate on
the earlier of (i) March 10, 2005, or (ii) the date on which Buyer pays
the Shareholders the amounts due pursuant to Sections 2.02(a)(iii), (iv),
(v), (vi), (vii), hereof. In the event that prior to March 10, 2001, Buyer
does not pay the cash due pursuant to Section 2.02(a)(iii), Shareholders
shall have the option, in their sole discretion, to take delivery of
Escrow Shares having a fair market value on March 10, 2001 of $3,387,526,
less the amount of any payments already made pursuant to Section
2.02(a)(iii). Any securities, non-cash dividends or other property
distributable in respect of the Escrow Shares shall be delivered to the
Escrow Agent, who shall hold such securities, non-cash dividends or other
property in the Escrow Account. The fees of the Escrow Agent shall be
borne by Buyer."
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(c) Section 2.02(d) shall be added to the Agreement to read as
follows:
"(d) If any payments due under Section 2.02(a)(iii)(A), (B) or (C) of the
Agreement is not made within 10 days of the date first due, said payment
may be paid from the available cash in Concepts 4, Inc. in an amount
determined in good faith by a representative of the Shareholders, based
upon a review of the cash position and anticipated cash needs of Concepts
4, Inc.
(d) Section 2.02(e) shall be added to the Agreement to read as
follows:
"(e) If and only if all of the payments due under Section 2.02(a)(iii)(A),
(B) and (C) of the Agreement, as amended, are paid in cash, in full to
Shareholders, in an amount not less than $3,387,526, then for so long as
Buyer Common Stock is held in the Escrow Account and Buyer is not in
Default (as defined below), the Shareholders will not, alone or in concert
with others, directly or indirectly: (i) by purchase or otherwise,
acquire, or agree to acquire, ownership (including, but not limited to,
beneficial ownership) of any Buyer Common Stock, or direct or indirect
rights (including convertible securities) or options to acquire such
ownership, with the exception of the ownership of such Buyer Common Stock
as is delivered to Shareholders out of the Escrow Account; (ii) make any
public announcement with respect to, or submit any proposal for, the
acquisition of beneficial ownership of Buyer Common Stock (or direct or
indirect rights, including convertible securities, or options to acquire
such beneficial ownership) for or with respect to any extraordinary
transaction or merger, consolidation, sale of substantial assets or
business combination involving the Buyer or any of its affiliates, whether
or not any parties other than the Shareholders and affiliates and
associates are involved and whether or not such proposal might require the
making of a public announcement; (iii) make, or in any way participate in,
any "solicitation" or "proxies" (as such terms are defined or used in
Regulation 14A under the Exchange Act) or become a "participant" in any
"election contest" (as such terms are defined or used in Rule 14a-11 under
the Exchange Act) to vote, or seek to advise or influence any person or
entity with respect to the voting of, any voting securities of the Buyer
or any of its affiliates; provided, however, that the foregoing shall not
restrict any actions with respect to matters (other than matters relating
to the election of directors or the composition of the Buyer's Board of
Directors) submitted to a shareholder vote which matters are not proposed
or initiated by any Shareholder or any affiliates or associates or by any
person acting in concert with or at the direction of any Shareholder or
any affiliates or associates; (iv) form, join or in any way participate in
a "group" (as such term is used in Section 13d(3) of the Exchange Act)
with respect to any securities of the Buyer in connection with any action
or matter otherwise prohibited by the terms of this agreement; (v)
initiate or propose any shareholder proposals for submission to a vote of
shareholders with respect to the Buyer or any of its affiliates or propose
any person for election to the Board of Directors of the Buyer or any of
its affiliates; or (vi) otherwise seek to control the management or
policies of the Buyer or any of its affiliates, including, without
limitation, taking any action to seek to obtain representation on the
Board of Directors of the Buyer or any of its affiliates. Notwithstanding
anything else to the contrary, nothing in this agreement shall prevent the
Shareholders from (1) taking any action required of them under State or
Federal laws or regulations or (2) voting, in their complete discretion,
any shares of
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Buyer Common Stock which is released from the Escrow Account and delivered
to them pursuant to the terms of the Agreement. For purposes of this
Amendment, Default shall mean the occurrence of any of th-1- -1- e
following events: (1) Buyer shall have failed to deliver Escrow Shares
into the Escrow Account pursuant to Sections 2.02(c) or 2.02(f)(ii) or
2.04(b), or (2) Buyer shall have failed to make a payment when due under a
Buyer Promissory Note issued to Shareholders pursuant to Section
2.02(f)(i) of the Agreement, as amended, or (3) Buyer shall have failed to
make a payment when due under a Buyer Promissory Note issued to Homada LLC
pursuant to Section 2.04(a) of the Agreement, as amended."
(e) If and only if all of the payments set forth in Section
2.02(a)(iii)(A), (B) and (C) of the Agreement, as amended, are paid in
cash to Shareholders in an amount not less than $3,387,526 prior to
December 10, 2000, then for so long as Buyer Common Stock is held in the
Escrow Account and Buyer is not in default on any payment due under the
Agreement, as amended, the Shareholders will vote the Escrow Shares in
support of the election of the nominees to the Buyer's Board of Directors
proposed by either the current Buyer Board of Directors or the members of
the Board of Directors who have been nominated to the Board by the current
Board of Directors (or such of their successors who have been nominated by
the Board members so nominated). Upon execution of this Amendment, the
Shareholders shall execute the Proxy attached hereto as Exhibit B. The
executed proxies shall be held by the Escrow Holder until December 10,
2000. If Buyer shall have paid a sum not less than $3,387,526 to
Shareholders pursuant to Section 2.02(a)(iii) of the Agreement by that
date, then the proxies shall be delivered to Buyer. If said sums have not
been paid to Shareholders by that date, the proxies shall be returned to
Shareholders."
(f) In the event that Buyer makes the cash payments due under
Section 2.02(a)(iii)(A) and (B) of the Agreement, as amended, in the total
amount of $2,387,526 on the dates and in the amount set forth therein,
Jerry Howard shall withdraw his name from contention as a member of the
Board of Directors of Buyer at its next annual Shareholder's meeting.
(g) Section 2.02(b) shall be deleted in its entirety.
(h) The following paragraph is added to the Agreement as 2.02(f):
"(f) In the event that Buyer fails to pay the amounts due pursuant to
Section 2.02(a) (iv), (v), (vi) or (vii) within fifteen (15) Business Days
of the dates such cash payments are due, Buyer shall:
"(i) deliver to Shareholders a Buyer's Promissory Note, in
substantially the form as attached hereto as Exhibit A, and in the full
amount of the payment due, bearing interest of eight percent per annum
from the payment date as set forth in Section 2.02(a)(iv), (v), (vi) or
(vii), as applicable, and payable in full within one year; and
"(ii) deliver into the Escrow Account Buyer's Common Stock the fair
market value of which is equal to the shortfall, if any, between the Fair
Market Value of all
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Buyer's Common Stock held in the Escrow Account pursuant to Section
2.02(b) and the combined total of (1) the amount of any cash payments then
due to Shareholders, (2) the principal amount of the outstanding Buyer
Promissory Notes issued to Shareholders by Buyer pursuant to this Section
2.02(f)(i), plus interest due thereon, less payments previously made on
said Notes, and (3) the principal amount of the outstanding Buyer
Promissory Notes issued to Shareholders by Buyer pursuant to Section
2.04(a)(i), (ii) or (iii), plus interest due thereon, less payments
previously made on said notes. Fair Market Value of the Buyer Common Stock
shall be computed using the daily average closing bid price per share of
Buyer Common Stock for the ten (10) trading days immediately preceding the
date the applicable cash payment was to be paid pursuant to Section
2.02(a)(iv), (v), (vi) or (vii), as applicable. If Buyer Common Stock is
no longer traded on the NASDAQ or on the Over the Counter Market on a
regular basis, Fair Market Value shall be computed by using the daily
average closing bid price per share of Buyer Common Stock for the ten (10)
trading days immediately preceding the date on which Buyer Common Stock
ceased trading on the NASDAQ and/or Over the Counter Market. Shares placed
in the Escrow Account pursuant to this section shall remain in the Escrow
Account until the earlier of (i) the date on which Buyer pays the
Shareholders the amount of all cash payments then due pursuant to Sections
2.02(a)(iii), (iv), (v), (vi) and (vii); (ii) the exercise by Shareholders
of their option to receive Buyer Common Stock if Buyer's Promissory Notes
are not paid when due; or (iii) March 10, 2005. In the event that Buyer
has not paid any Buyer Promissory Note within 30 days of its original due
date, then Shareholders shall have the option to receive Buyer Common
Stock out of the Escrow Account in an amount equivalent to the amount then
due under the defaulted Buyer Promissory Note, including interest thereon.
The Fair Market Value of the Buyer Common Stock shall be computed using
the daily average closing bid price per share of Buyer Common Stock for
the ten (10) trading days immediately preceding the date on which the
Shareholders exercise their option to take delivery of Buyer Common Stock
in payment of the Buyer Promissory Note. If Buyer Common Stock is no
longer traded on the NASDAQ or on the Over the Counter Market on a regular
basis, Fair Market Value shall be computed by using the daily average
closing bid price per share of Buyer Common Stock for the ten (10) trading
days immediately preceding the date on which Buyer Common Stock ceased
trading on the NASDAQ and/or Over the Counter Market. Any securities,
non-cash dividends or other property distributable in respect of the
Escrow Shares shall be delivered to the Escrow Agent, who shall hold such
securities, non-cash dividends or other property in the Escrow Account.
The fees of the Escrow Agent shall be borne by Buyer.
"Payments due under any Buyer Promissory Note(s) issued pursuant to
Section 2.02(f)(i) of the Agreement, as amended, shall be payable directly
from Buyer or from the available cash in Concepts 4, Inc. Payments towards
any buyer Promissory Note may be made from Concepts 4, Inc. in the
discretion of a representative of the Shareholders, but, only if, in the
good faith business judgment of said representative of the Shareholders,
after making any such payment, Concepts 4, Inc. will retain sufficient
cash to meet its cash flow requirements for the following three (3) month
period, based upon a review of the cash position and anticipated cash
needs of Concepts 4, Inc. In the event that payments due under a Buyer
Promissory Note are made from the available cash of Concepts 4, Inc., an
amount equal to ten percent of any such payment shall be paid by Concepts
4, Inc. to
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Buyer."
(i) The following paragraph is added to the Agreement as 2.02(g):
"(g) In the event that the Fair Market Value of the Buyer Common Stock
held in the Escrow Account pursuant to Sections 2.02(c), 2.02(f) or
2.04(b) falls below the combined total of (i) the amount of any cash
payment then due to Shareholders, (ii) the principal amount of the
outstanding Buyer Promissory Notes issued to Shareholders by Buyer
pursuant to Section 2.02(f)(i), plus interest due thereon, less payments
previously made on said notes and (iii) the principal amount of the
outstanding Buyer Promissory Notes issued to Homada LLC by Buyer pursuant
to Section 2.04(b), plus interest due thereon, less payments previously
made on said notes, then the Shareholders shall deliver a notice to Buyer
of such shortfall and Buyer shall deliver to the Escrow Agent additional
shares of Buyer Common Stock within thirty (30) days of receipt of the
Shareholders' notice so that the Fair Market Value of the Escrow Shares
equals the Fair Market Value of the combined totals set forth in
subparagraphs (i), (ii) and (iii) of this Section. The Fair Market Value
of the Buyer Common Stock in the Escrow shall be computed using the daily
average closing bid price per share of Buyer Common Stock for the ten (10)
trading days immediately preceding the date of review. If Buyer Common
Stock is no longer traded on the NASDAQ or on the Over the Counter Market
on a regular basis, Fair Market Value shall be computed by using the daily
average closing bid price per share of Buyer Common Stock for the ten (10)
trading days immediately preceding the date on which Buyer Common Stock
ceased trading on the NASDAQ and/or Over the Counter Market."
(j) Section 2.04 of the Agreement shall be amended in its entirety
as follows:
"(a) Buyer shall make the following additional payments for the Shares, at
the times and in the amounts specified below by delivery of Buyer's
Promissory Notes made payable to Homada LLC, bearing interest at eight
percent (8%) per annum, payable within eighteen months from the date of
issuance (the "Earnout Notes"). The Earnout Notes shall be in the amounts
set forth opposite each Shareholder's name on Schedule 2.04(a):"
"(i) In the event the Company's EBIT during the First Earnout Period
exceeds Three Million Dollars ($3,000,000), then (A) on December 15, 2001,
Buyer shall pay to Homada LLC Three Hundred Twenty-Four Thousand Dollars
($324,000), cash and (B) within forty-five (45) days following the First
Earnout Period, shall: (1) deliver to Homada LLC a Buyer Promissory Note
(the "First Earnout Period Note") in the principal amount equal to One
Dollar ($1) for each One Dollar ($1) that the Company's EBIT during the
First Earnout Period exceeds Three Million Dollars ($3,000,000); provided,
however, that the First Earnout Period Note shall not exceed One Million
Five Hundred Thousand Dollars($1,500,000). The Company shall not be
obligated to deliver any First Earnout Period Note to Homada LLC in the
event that the Company's EBIT during the First Earnout Period is less than
Three Million Dollars ($3,000,000)
"(ii) In the event the Company's EBIT during the Second Earnout
Period exceeds Six Million Dollars ($6,000,000) and the Company's EBIT
during the second twelve
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month period following the Closing Date exceeds Three Million Dollars
($3,000,000), within forty-five (45) days following the Second Earnout
Period, Buyer shall deliver to
Homada LLC Buyer's Promissory Note (the "Second Earnout Period Note")
having a principal amount equal to One Dollar ($1) for each One Dollar
($1) that the Company's EBIT during the Second Earnout Period exceeds Six
Million Dollars ($6,000,000), minus (c) the amount of any First Earnout
Period Note; provided, however, that the aggregate value of the Second
Earnout Period Note and First Earnout Period Note shall not exceed Three
Million Dollars ($3,000,000). The Company shall not be obligated to
deliver any Second Period Earnout Note in the event that the Company's
EBIT during the Second Earnout Period is less than Six Million Dollars
($6,000,000) or the Company's EBIT during the second twelve month period
following the Closing Date equals or is less than Three Million Dollars
($3,000,000).
"(iii) In the event that the Company's EBIT during the Third Earnout
Period equals Nine Million Dollars ($9,000,000) and the Company's EBIT
during the third twelve month period following the Closing Date exceeds
Three Million Dollars ($3,000,000), within forty-five (45) days following
the Third Earnout Period, Buyer shall deliver to Homada LLC Buyer's
Promissory Note (the "Third Earnout Period Note") in an amount equal to
One Dollar ($1) for each One Dollar ($1) that the Company's EBIT during
the Third Earnout Period exceeds Nine Million Dollars ($9,000,000), minus
(c) the value of any First Earnout Period Note and Second Earnout Period
Note; provided, however, that the aggregate value of the Third Earnout
Period Note, the First Earnout Period Note and the Second Earnout Period
Note shall not exceed Four Million Five Hundred Thousand Dollars
($4,500,000). The Company shall not be obligated to deliver any Third
Earnout Period Note to Homada LLC in the event that the Company's EBIT
during the Third Earnout Period is less than Nine Million Dollars
($9,000,000) or the Company's EBIT during the third twelve month period
following the Closing Date equals or is less than Three Million Dollars
($3,000,000).
"(b) Buyer shall deliver to the Escrow Account established pursuant to
Section 2.02(b) of the Agreement, Buyer Common Stock, the Fair Market
Value of which is equal to the shortfall, if any, between the Fair Market
Value of all Buyer's Common Stock held in the Escrow Account pursuant to
Sections 2.02(b), 2.02(f) of the Agreement, as amended, or this Section
2.04(b) and the combined total of (1) the amount of any cash payments then
due to Shareholders, (2) the principal amount of the outstanding Buyer
Promissory Notes issued to Shareholders by Buyer pursuant to Section
2.02(f)(i), plus interest due thereon, less payments previously made on
said Notes, and (3) the principal amount of the outstanding Buyer
Promissory Notes issued to Homada LLC by Buyer pursuant to Section
2.04(a), plus interest due thereon, less payments previously made on said
notes. The Fair Market Value of the Buyer Common Stock shall be computed
using the daily average closing bid price per share of Buyer Common Stock
for the ten (10) trading days
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immediately preceding the date the Buyer's Promissory Note is to be
delivered to Homada LLC pursuant to Section 2.04(a)(i), (ii) or (iii), as
applicable. If Buyer Common Stock is no longer traded on the NASDAQ or on
the Over the Counter Market on a regular basis, Fair Market Value shall be
computed by using the daily average closing bid price per share of Buyer
Common Stock for the ten (10) trading days immediately preceding the date
on which Buyer Common Stock ceased trading on the NASDAQ and/or Over the
Counter Market. Shares placed in the Escrow Account pursuant to this
section shall remain in the Escrow Account until the earlier of (i) the
date on which Buyer pays Homada LLC the full amount due under all Buyer
Promissory Notes issued pursuant to Sections 2.04(a)(i), (ii) and (iii);
(ii) the exercise by Homada LLC of its option to receive Buyer Common
Stock if Buyer's Promissory Notes are not paid when due; or (iii) March
10, 2005. In the event that Buyer has not paid any Buyer Promissory Note
within 7 months of its original due date, then Homada LLC shall have the
option to take delivery of Buyer Common Stock out of the Escrow Account in
payment of the defaulted Buyer Promissory Note in an amount equivalent to
the amount then due under the defaulted Buyer Promissory Note, including
interest thereon. The Fair Market Value of the Buyer Common Stock shall be
computed using the daily average closing bid price per share of Buyer
Common Stock for the ten (10) trading days immediately preceding the date
on which Homada LLC exercises its option to take delivery of Buyer Common
Stock. Any securities, non-cash dividends or other property distributable
in respect of the Escrow Shares shall be delivered to the Escrow Agent,
who shall hold such securities, non-cash dividends or other property in
the Escrow Account. If Buyer Common Stock is no longer traded on the
NASDAQ or on the Over the Counter Market on a regular basis, Fair Market
Value shall be computed by using the daily average closing bid price per
share of Buyer Common Stock for the ten (10) trading days immediately
preceding the date on which Buyer Common Stock ceased trading on the
NASDAQ and/or Over the Counter Market. The fees of the Escrow Agent shall
be borne by Buyer."
"(c) Payments due under any Buyer Promissory Note(s) issued pursuant to
Section 2.04(a) shall be payable directly from Buyer or from the available
cash in Concepts 4, Inc. Payments towards any buyer Promissory Note may be
made from Concepts 4, Inc. in the discretion of a representative of the
Shareholders, but, only if, in the good faith business judgment of said
representative of the Shareholders, after making any such payment,
Concepts 4, Inc. will retain sufficient cash to meet its cash flow
requirements for the following three (3) month period, based upon a review
of the cash position and anticipated cash needs of Concepts 4, Inc. In the
event that payments due under a Buyer Promissory Note are made from the
available cash of Concepts 4, Inc., an amount equal to ten percent of any
such payment shall be paid by Concepts 4, Inc. to Buyer."
(k) Except as specifically provided for in this Second Amendment, or
pursuant to loan agreements with Foothill Capital Corporation in existence
as of the date of this Amendment, until all payment obligations of Buyer
to Shareholders under the Agreement have been fulfilled, Buyer shall not
cause Concepts 4, Inc. to make any payment to Buyer or to any other party
or to incur any further obligation on behalf of Buyer or any other party
of any dividends, of any loans or in connection with any loans or any
other payments or obligations of any kind. This provision will be binding
upon any successor in interest of Buyer as a shareholder of Concepts 4,
Inc. Notwithstanding the foregoing, Shareholders shall use their best
efforts to arrange for a five year term loan for Concepts 4, Inc. in the
amount of $300,000 from Foothill Capital Corporation or any other
responsible lender, to be funded prior to December 10, 2000; all funds
borrowed pursuant to said term loan shall be used exclusively to reduce
the obligations owing to the
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Shareholders under Section 2.02(a)(iii)(C). If such funding is not
received by such date, Shareholders shall continue to use their best
efforts to obtain such borrowing after
such date as long as the proceeds of such borrowing are used exclusively
to reduce obligations owing to the Shareholders under the Agreement.
(l) The Employment Agreements between Concepts 4, Inc. and Jerry
Howard, John Mamer and Dennis Darlington, respectively, may be amended so
that, in the event that (1) there is a Default by Buyer as defined in
Section 2.02(e) of the Agreement, or (2) there is a change of ownership of
Concepts 4, Inc. or, (3) there is a change of control in the Board of
Directors of Buyer, then the liquidated damages amounts provided in
Sections 7.6(b) and 7.6(c) of the respective Employment Agreements will be
decreased by 1/24 of the liquidated damage amount specified in section
7.6(b) and by 1/12 of the liquidated damage amount specified in Section
7.6(c) for each month during which the employee remains employed by
Concepts 4, Inc. following the anniversary date specified in the
respective paragraphs.
3. References. All references in the Agreement to "Agreement," "herein,"
"hereof," or terms of like import referring to the Agreement or any portion
thereof are hereby amended to refer to the Agreement as amended by this Second
Amendment.
4. No Implied Amendments. Except as expressly provided herein, the
Agreement is not being amended, supplemented, or otherwise modified, and the
Agreement shall continue in force and effect in accordance with its terms.
5. Attorneys Fees. If the services of an attorney are required by any
party to secure the performance of this Second Amendment or otherwise on the
breach or default of another party to this Second Amendment, or if any judicial
remedy, litigation or arbitration is necessary to enforce or interpret any
provision of this Second Amendment or the rights and duties of any person in
relation to it, the prevailing party shall be entitled to reasonable attorney
fees, costs, or other expenses, in addition to any other relief to which such
party may be entitled. Any award of damages following judicial remedy or
arbitration as a result of the breach of this Second Amendment or any of its
provisions shall include an award of prejudgment interest from the date of the
breach at the maximum amount of interest allowed by law. For purposes of this
section, "litigation" includes mandatory or voluntary arbitration or mediation
of any dispute relating to this Agreement and includes proceedings before a
court of law at the trial and/or appellate levels.
6. Counterparts. This Second Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but all such
counterparts together shall constitute but one and the same agreement.
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7. Governing Law. This Second Amendment shall be governed by and construed
in accordance with the internal laws (and not the law of conflicts) of the State
of Delaware.
IN WITNESS WHEREOF, each of the parties hereto has executed this Second
Amendment, or caused this Second Amendment to be executed on its behalf by a
representative duly authorized, as of the date first above written.
INTERIORS, INC.
By: /s/
-----------------------------------------
Max Munn
President
THE HOWARD FAMILY TRUST DATED MARCH 21, 2000
/s/
--------------------------------------------
Jerry Howard, Trustee
/s/
--------------------------------------------
Dennis Darlington
THE MAMER FAMILY TRUST
DATED OCTOBER 1, 1997
By: /s/
-----------------------------------------
John Mamer, Trustee
HOMADA, LLC
By: /s/
-----------------------------------------
Jerry Howard, Managing Member
/s/
--------------------------------------------
Jerry Howard
/s/
--------------------------------------------
John Mamer
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EXHIBIT A
PROMISSORY NOTE
$______________ Mt. Vernon, New York
[Date]
For value received, I promise to pay to _____[Shareholder]_____ or
order at Long Beach, California, or at such other place as may be designated in
writing by the holder(s) of this Note the sum of
________________________________Dollars, with interest thereon from ___[date]___
on unpaid principal, until said principal is paid, at the rate of Eight Percent
(8%) per annum, based upon a 365 day year. Principal and Interest shall be due
in full on ___[date]__.
Maker may prepay all or part of the principal balance due under this
Note without penalty or charge.
Each payment shall be credited first on interest then due and the
remainder on principal; interest shall thereupon cease upon the principal so
credited.
In the event of any default in the payment of principal or interest
as herein provided, all sums so due, including interest, shall bear interest at
the rate set forth above, but such unpaid interest so compounded shall not
exceed an amount equal to simple interest on the unpaid principal at the maximum
rate permitted by law.
Principal and interest shall be payable in lawful money of the
United States.
If an action is instituted on this note, the undersigned promises to
pay such sum as the court may fix as attorney's fees.
INTERIORS, INC.
By:
-------------------------------------
Max Munn, President
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<PAGE>
EXHIBIT B
Max Munn, Robert Conologue and David A. Schwartz, and each of them, with full
power of substitution, are hereby authorized to represent and to vote the shares
of Class A Common Stock, $.001 par value of Interiors, Inc. held of record by
the undersigned on October 27, 2000, as directed and, in their discretion, on
all other matters which may properly come before the Annual Meeting of
Stockholders to be held on December 15, 2000 and at any adjournment or
postponement thereof, as if the undersigned were present and voting at the
meeting. This is a proxy coupled with an interest and is and shall be
irrevocable if all of the payments set forth in Section 2.02(a)(iii)(A), (B) and
(C) of the Stock Purchase Agreement between the undersigned and Interiors, Inc.,
among others, dated October 27, 1999, as amended, are paid in cash to
Shareholders, in an amount not less than $3,387,526 prior to December 10, 2000.
ELECTION OF DIRECTORS:
1) Max Munn, 2) Roger Lourie, 3) Richard Josephberg and 4) James G. Bloise
|X| For All Nominees |_| Withhold All Nominees
To withhold authority to vote for any individual nominee(s), write the
nominee's names on the space(s) provided below:
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Dated___________________, 2000 ____________________________________________
Signature
Dated___________________, 2000 ____________________________________________
Signature if held jointly
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
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