Exhibit 10.21
SECOND AMENDMENT TO STOCK RESTRICTION AND CROSS PURCHASE AGREEMENT
This Second Amendment to Stock Restriction and Buy-Sell Agreement (the
"Amendment") is made as of the 2nd day of October, 1997 by and between Xxxx X.
Xxxxx, Xxxxx Xxxxxxx, Xxxx X. Xxxx and Xxxxxx X. Xxxxxxx.
WHEREAS, the parties hereto are parties to that certain Stock Restriction
and Cross Purchase Agreement dated as of June 6, 1996, as amended by the First
Amendment to Stock Restriction and Cross Purchase Agreement dated as of July 15,
1997 (the "Agreement"), which Agreement imposes certain rights and restrictions
on the Shareholders in connection with the sale or disposition of their Shares.
WHEREAS, the parties hereto desire to amend the Agreement in accordance
with the terms and conditions set forth below.
NOW, THEREFORE, for and in consideration of the above premises and the
mutual covenants and agreements hereinafter contained, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Section 4.1 of the Agreement is hereby amended by replacing the
existing subsection (iii) with the following language:
"(iii) an amount equal to: (a) six (6) times the Corporation's EBITDA (as
defined below), minus (b) the principal balance of the Corporation's interest
bearing debt (net of cash, cash equivalents or marketable securities) as of the
date of the Decedent's death, divided by (c) the total number of Shares
outstanding as of the date of the Decedent's death."
2. Section 4.1 of the Agreement is hereby amended by adding the following
subsection 4.1(iv) after subsection 4.1(iii) thereof:
"(iv) an amount equal to: (a) six (6) times the Corporation's adjusted
EBITDA (as defined below), minus (b) the principal balance of the Corporation's
interest bearing debt (net of cash, cash equivalents or marketable securities)
as of the date of the Decedent's death, divided by (c) the total number of
Shares outstanding as of the date of the Decedent's death."
3. A Section 4.5 is hereby added to the Agreement, which states as
follows:
"4.5 Adjusted EBITDA. The term "adjusted EBITDA" shall mean the same as
EBITDA except that the term "Fiscal Period" shall mean (y) if the Event occurs
during the first eight (8) months of any given fiscal year of the Corporation,
the immediately preceding fiscal year of the Corporation and (z) if the Event
occurs during the last four (4) months of any given fiscal year of the
Corporation, the fiscal year of the Corporation in which the Event occurs."
4. All capitalized terms used herein shall have the meanings ascribed to
them in the Agreement unless the context in which such terms are used clearly
indicates a contrary intention.
5. Except as expressly amended herein, the Agreement shall remain
unchanged and in full force and effect.
__/s/ Xxxxx Sloan___________
Xxxx X. Xxxxx
__/s/ Xxxxx Andrade_________
Xxxxx Xxxxxxx
__/s/ Xxxx Funk____________
Xxxx X. Xxxx
__/s/ Xxxxxx Buffett_______
Xxxxxx X. Xxxxxxx
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