SECOND AMENDMENT TO PURCHASE AGREEMENT
Exhibit
10.3
SECOND
AMENDMENT TO PURCHASE AGREEMENT
This
SECOND AMENDMENT TO PURCHASE AGREEMENT (the "Amendment"), dated as of October
29, 2007, is by and among Xxxx'x, Inc., a Delaware corporation (together with
its subsidiaries, the "Company"), and Xxxxxx X. Xxxxxx and Xxxxxxxxxxx X.
Xxxxxx, individuals residing in Houston, Texas (together, the
"Noteholders"). Unless otherwise specifically defined herein, each
term used herein which is defined in the Purchase Agreement (as defined below)
shall have the meaning assigned to such term in the Purchase
Agreement.
RECITALS
WHEREAS,
each of the Noteholders has agreed to amend the Employment Agreement, dated
November 11, 2005, between the Company and such Noteholder, to, among other
things, extend his employment with the Company for one year, until August 31,
2009, without any increase in his annual base salary and without any other
agreement as to compensation;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein and for good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree to amend that certain Purchase Agreement,
dated March 9, 2001, by and between the Company and the Noteholders, as amended
by the First Amendment to Purchase Agreement, dated as of June 7, 2004 (the
"Purchase Agreement"), as follows:
1. Amendment
of Section 1.1 (Definitions). The following definition in
Section 1.1 of the Purchase Agreement is hereby amended and restated in its
entirety, to read as follows:
""Maximum
Percentage Ownership" means (i) prior to March 15, 2002, 25%, (ii) from
March 15, 2002 and prior to October 29, 2007, 28%, and (iii) on or after October
29, 2007, 33%."
2. Amendment
of Section 5.4 (Standstill). Section 5.4 of the Purchase
Agreement is hereby amended to add the following paragraph at the end of such
Section 5.4:
"(d) Notwithstanding
the foregoing, the Purchasers, together with their Affiliates and Associates
and
any 13d Group of which they are a part, shall not be deemed to Beneficially
Own
any Voting Stock or Common Stock of the Company in excess of the Maximum
Percentage Ownership solely as the result of an acquisition of Voting Stock
or
Common Stock by the Company until such time thereafter as the Purchasers,
together with their Affiliates and Associates and any 13d Group of which they
are a part, shall become the Beneficial Owner (other than by means of a stock
dividend or stock split or as a result of thereafter becoming the Beneficial
Owner of shares issuable or issued upon the exercise of options to acquire
Voting Stock or Common Stock granted to the Purchasers by the Company) of any
additional shares of Voting Stock or Common Stock of the Company while the
Purchasers, together with their Affiliates and Associates and any 13d Group
of
which they are a part, otherwise are, or as a result of which the Purchasers,
together with their Affiliates and Associates and any 13d Group of which they
are a part, otherwise become, the Beneficial Owner of any Voting Stock or Common
Stock of the Company in excess of the Maximum Percentage
Ownership."
3. Counterparts. This
Amendment may be executed and delivered (including by facsimile transmission)
in
one or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
4. Entire
Agreement. This Amendment together with the Purchase
Agreement constitutes the entire agreement of the parties hereto and supersedes
all prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof. There are no
representations or warranties, agreements or covenants with respect to the
subject matter hereof other than those expressly set forth in this Amendment
and
the Purchase Agreement.
5. Governing
Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO ANY
CONFLICTS OF LAWS PROVISIONS.
6. Public
Announcements. The Company, on the one hand, and
Noteholders, on the other, shall consult with each other before issuing any
press release or otherwise making any public statements with respect to this
Amendment or the transactions contemplated hereby, except for statements
required by Law or by any listing agreements with or rules of any national
securities exchange or the National Association of Securities Dealers, Inc.,
or
made in disclosures reasonably determined as required to be filed pursuant
to
the Securities Act or the Exchange Act.
7. Headings. The
headings of this Amendment are for convenience or reference only and are not
part of the substance of this Amendment.
IN
WITNESS WHEREOF, each of the parties hereto has caused this Amendment to be
executed as of the date first written above.
XXXX’X,
INC
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By:
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/s/Xxxxxx
Xxx, III
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Name:
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Xxxxxx
Xxx, III
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Title:
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Chairman
of the Board
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NOTEHOLDERS:
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/s/Xxxxxx
X. Xxxxxx
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Xxxxxx
X. Xxxxxx
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/s/Xxxxxxxxxxx
X. Xxxxxx
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Xxxxxxxxxxx
X. Xxxxxx
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