EXHIBIT (c)(3)
SECOND AMENDED AND RESTATED
XXXXXX FAMILY AGREEMENT
This Second Amended and Restated Xxxxxx Family Agreement (this "Agreement")
is made effective as of June 2, 1997 by and among Xxxxxx-Xxxxxx, Inc. (the
"Company"), and Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx and The Xxxxxx Family Limited
Partnership, which is controlled by Xxxxxxxxx X. Xxxxxx (collectively, the
"Xxxxxx Family").
WHEREAS, the Xxxxxx Family owns 60% of the Common Stock, no par value, of
the Company; and
WHEREAS, the parties hereto previously executed that certain Xxxxxx Family
Agreement effective as of June 2, 1997, and that certain Amended and Restated
Xxxxxx Family Agreement effective as of June 2, 1997, and now desire to further
amend and restate said Agreements; and
WHEREAS, the Xxxxxx Family owns 60% of the Common Stock, no par value, of
the Company; and
WHEREAS, the Company is making a tender offer to purchase the issued and
outstanding shares of its Common Stock, no par value (the "Offer"), held by
persons or entities who own Common Stock (the "Public Shareholders") at the
price set forth in the Offer to Purchase, including any amendments thereto (the
"Offer Price"); and
WHEREAS, pursuant to the Offer, the Xxxxxx Family has agreed to share with
the Public Shareholders who tender their Shares pursuant to the Offer any Excess
Proceeds (as defined herein), if any, received in the future as a result of
certain change in control transactions as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Xxxxxx Family
hereby agree as follows:
1. DEFINITIONS.
a. "Change of Control" means the occurrence of any of the following: (i)
the sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Company or any successor to the Company
to any "person" (as such term is used in Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended); (ii) the adoption of a plan relating to the
liquidation or dissolution of the Company or any successor to the Company; or
(iii) the consummation of any transaction (including, without limitation, any
merger or consolidation) the result of which is that any "person" (as defined
above), other than the Xxxxxx Family or their heirs (including assignees by
inter vivos transfers for estate planning purposes), acquires a direct or
indirect interest in more than 50% of the voting power of the Common Stock of
the Company or any successor to the Company.
b. Unless otherwise defined herein, all initially capitalized terms
herein shall have the same definitions set forth in the Offer to Purchase,
including any amendments thereto, filed by the Company with the Securities and
Exchange Commission.
2. AGREEMENT REGARDING PROCEEDS UPON A CHANGE OF CONTROL. In the event a
Change of Control occurs at any time within the three years following the later
of the date of consummation of the Offer or the date of consummation of the
Merger, the parties agree that if the aggregate amount of proceeds received by
the Xxxxxx Family as a result of such Change of Control (the "Proceeds") exceeds
the product of the Offer Price multiplied by the 3,901,190 shares currently
issued and outstanding (the "Total Purchase Price"), then any positive
difference between the Proceeds and the Total Purchase Price (the "Excess
Proceeds") shall be distributed by the Company as follows: the Xxxxxx Family
shall receive their proportionate share of the Excess Proceeds (i.e. 60%,
collectively) and the Public Shareholders other than the Xxxxxx Family who
tender their Shares pursuant to the Offer shall receive the remaining amount of
the Excess Proceeds (i.e. 40%, collectively) in proportion to their ownership
interests; provided, however, that in the event that any Public Shareholder
tenders only a part of his Shares pursuant to the Offer, such Shareholder will
share the Excess Proceeds only in the ratio that the Shares tendered bears to
the total number of Shares tendered by all Public Shareholders.
3. PUBLIC SHAREHOLDERS AS THIRD-PARTY BENEFICIARIES. It is specifically
understood, acknowledged, and agreed among the parties hereto that each Public
Shareholder who tenders Shares pursuant to the Offer (a "Tendering Shareholder")
is and shall be a third-party beneficiary of this Agreement, and that each such
Shareholder upon tender has the vested right to enforce this Agreement
individually, as well as the vested right to cause the Company to enforce this
Agreement with respect to any sums due to the Tendering Shareholder. In the
event that any Tendering Shareholder finds it necessary to file suit to enforce
this Agreement, all of the Tendering Shareholder's expenses, including
reasonable attorneys' fees, shall be reimbursed to said Shareholder by either
the Company or the Xxxxxx Family, as the court may determine.
4. TRANSFER OF RIGHTS. This Agreement shall be binding on any heirs,
successors or permitted assigns of the parties.
5. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties and there are no other promises or conditions in any other agreement
whether oral or written. This Agreement supersedes any prior written or oral
agreements between the parties.
6. SEVERABILITY. If any provision of this Agreement shall be held to be
invalid or unenforceable for any reason, the remaining provisions shall continue
to be valid and enforceable. If a court finds that any provision of this
Agreement is invalid or unenforceable, but that by limiting such provision it
would become valid or enforceable, then such provision shall be deemed to be
written, construed, and enforced as so limited.
7. TERM. This Agreement shall terminate three years following the later
of the date of consummation of the Offer or the date of consummation of the
Merger.
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8. APPLICABLE LAW. This Agreement shall be governed by and construed
according to the laws of the State of Texas.
XXXXXX-XXXXXX, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Its: Chairman of the Board
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
The Xxxxxx Family Limited Partnership
By:/s/ Xxxxxxxxx X. Xxxxxx
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Name: Xxxxxxxxx X. Xxxxxx
Its: Managing General Partner
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