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 XXXXX XXXXXXXXX ("Huberfeld") and XXXXX
XXXXXX ("Xxxxxx"), 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. Huberfeld and Xxxxxx each
delivered to the Company $712,002 (an aggregate of $1,424,004) on or
before January 31, 1997, as payment of the exercise price of a portion
of the Outstanding Warrants (the "Earlier Exercise"). Huberfeld and
Xxxxxx further agree to deliver an additional $879,100.40 each (an
aggregate of $1,758,200.80) 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 Huberfeld and Xxxxxx 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 either
Huberfeld or Xxxxxx 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 shallthereafter have an exercise price of $6.25 per share
and the 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 Huberfeld and Xxxxxx 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
Huberfeld:
Xxxxx Xxxxxxxxx
Address: 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx:
Xxxxx Xxxxxx
Address: 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
