THIRD AMENDMENT TO AGREEMENT TO ISSUE WARRANTS
THIS THIRD AMENDMENT TO AGREEMENT TO ISSUE WARRANTS (this "Amendment") is
entered into as of November 14, 1997, by and among XXXXXX XXXXX INCORPORATED, a
Nevada corporation (the "Company"), and XXXXXX XXXXXX ("Holder"), based on the
following premises.
Premises
A. The parties entered into an Agreement to Issue Warrants dated January
9, 1997, as amended April 16, 1997, and June 5, 1997 (the "Agreement"), pursuant
to which the Company agreed, subject to certain conditions, to issue warrants to
purchase shares of stock of the Company.
B. The parties wish to amend the terms of the Agreement as set forth in
this Amendment and to confirm all the others terms and provisions of the
Agreement.
Agreement
NOW, THEREFORE, based on the foregoing premises, which are incorporated
herein by this reference, and for and in consideration of the mutual covenants
and agreements herein set forth and the mutual benefit to the parties to be
derived therefrom, it is hereby agreed as follows:
1. Exercise of Outstanding Warrants. Paragraph 1.2 of the Agreement is
modified to read in its entirety as follows:
1.2 Exercise of Outstanding Warrants. Holder delivered to the
Company $889,393 on or before January 31, 1997, as payment of the
exercise price of a portion of the Outstanding Warrants (the "Earlier
Exercise"). Holder further agrees to deliver an additional $1,098,107
to the Company in ten equal payments commencing November 15, 1997, and
continuing on the day that is five weeks subsequent to the preceding
payment until the full amount is paid. On receipt of each payment,
the Company shall issue a certificate representing the stock then
being acquired, calculated at an exercise price of $5.30 per share,
and a replacement warrant covering the same number of shares and
having the terms set forth in paragraph 1.4 of this Agreement. On
receipt of the first payment, the Company agrees to deliver
certificates representing all shares previously held in reserve by the
Company in connection with the Earlier Exercise to Holder and
replacement warrants having the terms set forth in paragraph 1.4 for
the number of shares acquired in connection with the Earlier Exercise.
2. Failure to Make Payments. Paragraph 1.3 of the Agreement is hereby
amended to read in its entirety as follows:
1.3 Failure to Make Payments. In the event that Holder fails to
make one or more payments when due, that portion of the Outstanding
Warrants held by them that was then due to be exercised shall
thereafter have an exercise price of $6.25 per share and Holder shall
not be entitled to a replacement warrant, if and when exercised.
3. Issuance of Additional Warrants. Paragraph 1.4 of the Agreement is
modified to read in its entirety as follows:
1.4 Issuance of Additional Warrants. On timely exercise of the
Outstanding Warrants on each of the dates specified in this Agreement,
the Company agrees to issue new warrants to Holder to acquire the same
number of shares of Common Stock then acquired, such new warrants to
have an exercise price of $8.75 per share of Common Stock (the "$8.75
Warrants"). The $8.75 Warrants shall be exercisable at any time after
August 1, 1997, and prior to the close of business on April 16, 2003.
The $8.75 Warrants shall be in the form attached hereto as Exhibit "A"
and incorporated herein by this reference.
All subsequent references in the Agreement to the "$10.75 Warrants" shall be
deemed to be references to the "8.75 Warrants."
4. Ratification of the Agreement. Except as specifically provided in
paragraphs 1 through 3 of this Amendment, the parties hereby specifically
ratify, confirm, and adopt as binding and enforceable, all of the terms and
conditions of the Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first above written.
The Company:
Xxxxxx Xxxxx Incorporated
By
Xxxxxx Xxxxxxxxxx, President
Holder:
Xxxxxx Xxxxxx
Address: 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
