EXHIBIT 10.5
AMENDMENT NO. 3
TO
RIGHT OF FIRST REFUSAL AGREEMENT
This Amendment No. 3, which shall be effective as of the 16th day of
March, 2005 (the "Amendment"), to the Right of First Refusal Agreement dated as
of the 4th day of March, 2004, by and among Trans-Industries, Inc., a Delaware
corporation (the "Company"), the Investors and the Stockholders (each as defined
in the Original Agreement), as amended (the "Original Agreement"), is entered
into on May 23, 2005 by and among the Company and the Stockholders of at least a
majority of the shares of capital stock subject to the Original Agreement held
by such Stockholders, based upon voting power and calculated on an
as-if-converted basis, together with the consent of the Investors holding at
least a majority of the outstanding shares of Common Stock held by all Investors
on an as-converted-basis.
BACKGROUND
A. The parties hereto desire to amend the Original Agreement on the terms
and conditions contained herein.
B. Capitalized terms not otherwise defined herein shall have the meanings
given to them in the Original Agreement.
Now, therefore, in consideration of their mutual covenants and agreements
contained in this Amendment, the parties hereby agree as follows:
1. Amendments.
(a) 579,389 shares of Common Stock of the Company heretofore owned
by Xxxx Xxxxxx shall not be subject to the Right of First Refusal Agreement.
Section 1.1.10 "Permitted Transfer and Article II and Section 2.7 shall and are
hereby amended to allow Xxxx Xxxxxx to transfer such shares without first having
complied with the right of first refusal or transfer notice as set forth in
Section 2.1 of the Agreement and any such transfer shall be considered a
Permitted Transfer as defined by Section 1.1.10 and Section 2.7.
(b) 495,938 shares of Common Stock of the Company heretofore owned
by Xxxxxx Xxxxxx shall not be subject to the Right of First Refusal Agreement.
Section 1.1.10 "Permitted Transfer and Article II and Section 2.7 shall and are
hereby amended to allow Xxxxxx Xxxxxx to transfer such shares without first
having complied with the right of first refusal or transfer notice as set forth
in Section 2.1 of the Agreement and any such transfer shall be considered a
Permitted Transfer as defined by Section 1.1.10 and Section 2.7.
(c) All other shares of commons stock heretofore owned or later
acquired shall be subject to all terms and conditions of the Right of First
Refusal, as amended.
2. Miscellaneous Provisions.
(a) Effect of Amendment. Except as specifically provided in Section
1 hereof, the Original Agreement, and the amendments thereto, are hereby
ratified, confirmed and approved in all respects.
(b) Counterparts; Signature Pages. This Agreement may be executed
and delivered in multiple counterparts, each of which will be deemed an
original, and all of which together will constitute one and the same instrument.
This Agreement may be executed and delivered by facsimile and with separate
signature pages with the same effect as though all parties had executed and
delivered the same original signature page.
(c) Governing Law. This Agreement and the rights and obligations of
the parties hereunder will be governed by and construed in accordance with the
laws of the State of Michigan applicable to contracts made and to be performed
entirely within Michigan and without regard to the conflicts-of-laws provisions
thereof.
IN WITNESS WHEREOF, and intending to be legally bound, the Company and the
Investors have executed and delivered this Amendment No. 3 to Right of First
Refusal Agreement.
Dated: May 23, 2005 By: /s/ Xxxxxxx X. Xxxxx
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XXXXXXX X. XXXXX, President
INVESTORS:
Dated: May 23, 2005 By: /s/ Xxxxx X. Xxxxxx, Xx.
-----------------------------------
Xxxxx X. Xxxxxx, Xx., trustee under
the Trust Agreement dated July
15, 1976
STOCKHOLDERS:
Dated: May 9, 2005 /s/ Xxxx X. Xxxxxx
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XXXX X. XXXXXX, "Stockholder"
Dated: May 7, 2005 /s/ Xxxxxx Xxxxxx
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XXXXXX XXXXXX, "Stockholder"
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