SECOND AMENDMENT TO PURCHASE AGREEMENT
SECOND AMENDMENT TO PURCHASE AGREEMENT
This SECOND AMENDMENT TO PURCHASE AGREEMENT (the “Amendment”), dated as of October 29, 2007,
is by and among Xxxx’x, Inc., a Delaware corporation (together with its subsidiaries, the
“Company”), and Xxxxxx X. Xxxxxx and Xxxxxxxxxxx X. Xxxxxx, individuals residing in Houston, Texas
(together, the “Noteholders”). Unless otherwise specifically defined herein, each term used herein
which is defined in the Purchase Agreement (as defined below) shall have the meaning assigned to
such term in the Purchase Agreement.
RECITALS
WHEREAS, each of the Noteholders has agreed to amend the Employment Agreement, dated November
11, 2005, between the Company and such Noteholder, to, among other things, extend his employment
with the Company for one year, until August 31, 2009, without any increase in his annual base
salary and without any other agreement as to compensation;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and
for good and valuable consideration, the receipt of which is hereby acknowledged, the parties
hereto agree to amend that certain Purchase Agreement, dated March 9, 2001, by and between the
Company and the Noteholders, as amended by the First Amendment to Purchase Agreement, dated as of
June 7, 2004 (the “Purchase Agreement”), as follows:
1. Amendment of Section 1.1 (Definitions). The following definition in Section 1.1 of the
Purchase Agreement is hereby amended and restated in its entirety, to read as follows:
““Maximum Percentage Ownership” means (i) prior to March 15, 2002, 25%, (ii) from March
15, 2002 and prior to October 29, 2007, 28%, and (iii) on or after October 29, 2007, 33%.”
2. Amendment of Section 5.4 (Standstill). Section 5.4 of the Purchase Agreement is hereby
amended to add the following paragraph at the end of such Section 5.4:
”(d) Notwithstanding the foregoing, the Purchasers, together with their Affiliates and
Associates and any 13d Group of which they are a part, shall not be deemed to Beneficially
Own any Voting Stock or Common Stock of the Company in excess of the Maximum Percentage
Ownership solely as the result of an acquisition of Voting Stock or Common Stock by the
Company until such time thereafter as the Purchasers, together with their Affiliates and
Associates and any 13d Group of which they are a part, shall become the Beneficial Owner
(other than by means of a stock dividend or stock split or as a result of thereafter
becoming the Beneficial Owner of shares issuable or issued upon the exercise of options to
acquire Voting Stock or Common Stock granted to the Purchasers by the Company) of any
additional shares of Voting Stock or Common Stock of the Company while the Purchasers,
together with their Affiliates and Associates and any 13d Group of which they are a part,
otherwise are, or as a result of which the Purchasers, together with their Affiliates and
Associates and any 13d Group of which they are a part, otherwise become, the Beneficial
Owner of any
Voting Stock or Common Stock of the Company in excess of the Maximum Percentage
Ownership.”
3. Counterparts. This Amendment may be executed and delivered (including by facsimile
transmission) in one or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been signed by each of the
parties and delivered to the other parties, it being understood that all parties need not sign the
same counterpart.
4. Entire Agreement. This Amendment together with the Purchase Agreement constitutes the
entire agreement of the parties hereto and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof. There are no
representations or warranties, agreements or covenants with respect to the subject matter hereof
other than those expressly set forth in this Amendment and the Purchase Agreement.
5. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAWS PROVISIONS.
6. Public Announcements. The Company, on the one hand, and Noteholders, on the other, shall
consult with each other before issuing any press release or otherwise making any public statements
with respect to this Amendment or the transactions contemplated hereby, except for statements
required by Law or by any listing agreements with or rules of any national securities exchange or
the National Association of Securities Dealers, Inc., or made in disclosures reasonably determined
as required to be filed pursuant to the Securities Act or the Exchange Act.
7. Headings. The headings of this Amendment are for convenience or reference only and are not
part of the substance of this Amendment.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to be executed as of
the date first written above.
| XXXX’X, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| NOTEHOLDERS: | ||||
| Xxxxxx X. Xxxxxx | ||||
| Xxxxxxxxxxx X. Xxxxxx |
[Signature
Page to Second Amendment to Purchase Agreement]
