AMENDMENT NO. 1
TO
SECURITIES PURCHASE AGREEMENT
AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT ("Amendment") dated as
of February 14, 1997, by and between XXXXXXXXX INDUSTRIES, INC., a Delaware
corporation, having its executive office at 00000 X.X. 0xx Xxxxxx, Xxxxxxx,
Xxxxxxx 00000 (the "Company") and the purchaser named on the signature page
hereto (the "Purchaser").
RECITALS
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WHEREAS, the Company and the Purchaser entered into a Securities
Purchase Agreement, dated as of January 15, 1997 (the "Securities Purchase
Agreement"), pursuant to which, among other things, the Company issued to the
Purchaser an aggregate of $15,000,000 principal amount of its 11 3/4% Senior
Subordinated Notes (the "Notes");
WHEREAS, pursuant to the Securities Purchase Agreement, the Company has
issued to the Purchaser warrants (the "Warrants") to purchase 305,660 shares of
the Company's common stock, par value $.001 per share (the "Common Stock"); and
WHEREAS, the Company and the Purchaser desire to amend the Securities
Purchase Agreement as set forth herein;
NOW, THEREFORE, the Company and the Purchaser hereby agree as follows:
1. Section 11.3(g) of the Securities Purchase Agreement is hereby amended
to read in its entirety as follows:
(g) advances for payroll, relocation, travel and other
employee-related expenses incurred in the ordinary course of
business not to exceed, in the aggregate, $150,000 at any time
outstanding; and loans to officers and directors of the
Company for any purpose not to exceed, in the aggregate,
$750,000 at any time outstanding, at any time after the
Company shall have given notice to the holders of its Common
Stock Purchase Warrants (the "Publicly Traded Warrants") of
its intention to redeem all of the outstanding Publicly Traded
Warrants;
2. Section 11.6 of the Securities Purchase Agreement is hereby amended to
read in its entirety as follows:
11.6. Transactions with Affiliates. The Company will not, and
will not permit any Subsidiary to, directly or indirectly,
engage in any transaction (or series of related transaction)
including, without limitation, the purchase, sale or exchange
of assets or the rendering of any service, with any Affiliate
of the Company, except in the ordinary course of and pursuant
to the reasonable requirements of the Company's or such
Subsidiary's business and upon fair and reasonable terms that
are no less favorable to the Company or such Subsidiary, as
the case may be, than those which might be obtained, in the
good faith judgment of the Company, in an arm's length
transaction at the time from Persons which are not Affiliates.
In the case of any such transaction with an Affiliate
involving aggregate consideration in excess of $500,000, the
Company shall deliver to each holder of Notes an Officer's
Certificate certifying that such transaction complies with
this Section 11.6; and in the case of any such transaction
with an Affiliate involving aggregate consideration in excess
of $2,000,000, (a) the Company shall deliver to each holder of
Notes a favorable opinion as to the fairness to the Company or
such Subsidiary of such transaction from a financial point of
view, issued by an investment banking or accounting firm of
national standing and (b) such transaction shall have been
approved by the Audit Committee of the Board or, if
appropriate, the entire Board. The restriction contained in
this Section 11.6 shall not apply to (i) transactions between
the Company and a Wholly-Owned Subsidiary or between
Wholly-Owned Subsidiaries, (ii) employment arrangements or
advisory fees for officers and directors who are not
otherwise, by virtue of stock ownership or other
circumstances, Affiliates of the Company, (iii) the purchase
of inventory (including without limitation, the purchase sale,
lease or exchange of any assets or the rendering of any
service), in each case in the ordinary course of business and
(iv) loans permitted by Section 11.3(g) above.
3. Other than as set forth in this Amendment, the Securities Purchase
Agreement, the Notes and the Warrants shall remain in full force and effect.
4. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original but all of which shall together constitute one
and the same instrument.
5. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW).
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IN WITNESS WHEREOF, the Company and the Purchaser have caused this
Amendment to be executed by their duly authorized officers as of the date first
written above.
XXXXXXXXX INDUSTRIES, INC.
By:
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Name: Xxxx X. Xxxxxxx
Title: Executive Vice President and CFO
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
By:
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Name:
Title:
