EXHIBIT 4.17
AMENDMENT NO. 1
TO
STOCK AND WARRANT PURCHASE AGREEMENT
BY AND BETWEEN
XXXXXXX COMPANIES, INC.
AS ISSUER AND
U.S. TRANSPORTATION, LLC
AS INVESTOR
DATED AS OF OCTOBER 17, 2001
AMENDMENT NO. 1
TO
STOCK AND WARRANT PURCHASE AGREEMENT
This Amendment No. 1 to Stock and Warrant Purchase Agreement (the
"Amendment"), dated as of October 17, 2001, is entered into by and between
Xxxxxxx Companies, Inc., an Oklahoma corporation (the "Company") and U.S.
Transportation, LLC, a Delaware limited liability company (the "Investor").
RECITALS
A. The Company and the Investor have entered into a Stock and
Warrant Purchase Agreement dated as of February 6, 2001 (the "Agreement"),
pursuant to which Investor purchased shares of Common Stock of the Company as
well as a warrant for the purchase of additional Common Stock;
B. The Company and the Investor desire to amend Section 5.2 of
the Agreement for the purpose of allowing Investor the option of purchasing up
to one million shares of Common Stock of the Company in the open market.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. Capitalized terms used in this
Amendment and not otherwise defined herein shall have the meanings set forth in
the Agreement.
SECTION 2. AMENDMENT OF SUBSECTION 5.2(i). Subsection 5.2(i)
of the Agreement is hereby amended to read in full as follows:
"(i) acquire, announce an intention to acquire, offer
to acquire, or enter into any agreement, arrangement or
undertaking of any kind the purpose of which is to acquire, by
purchase, exchange or otherwise, (A) any shares of Voting
Stock, other than upon exercise of the Warrant and other than
the purchase by Investor of up to five hundred thousand
(500,000) shares of Common Stock of the Company during any
single trading day and one million (1,000,000) shares of
Common Stock of the Company in the aggregate (subject to
appropriate adjustment for stock splits, stock dividends,
recapitalizations and similar transactions) on the open market
through normal broker transactions, or (B) any other security
convertible into, or any option, warrant or right to acquire,
Voting Stock, in each case other than pursuant to Section 5.4
hereof;"
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SECTION 3. CONFIRMATION OF THE AGREEMENT AS AMENDED BY THIS
AMENDMENT. The Agreement, as amended by this Amendment, is hereby ratified and
confirmed and shall remain in full force and effect.
(SIGNATURES APPEAR ON THE FOLLOWING PAGE)
IN WITNESS WHEREOF, the parties have executed this Amendment
No. 1 to Stock and Warrant Purchase Agreement as of the date first written
above.
Company: XXXXXXX COMPANIES, INC.,
An Oklahoma corporation
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------
Its: Senior Vice President, Finance & Treasurer
Investor: U.S. TRANSPORTATION, LLC
A Delaware Limited Liability Company
By: The Yucaipa Companies, LLC,
Its Managing Member
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx
Its Managing Member
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