Amendment No. 1 to
Sales Representative Agreement
This AMENDMENT NO. 1 TO SALES REPRESENTATIVE AGREEMENT (the
"Amendment") is made and entered into this 30th day of August, 1999, to
be effective as of August 1, 2000 (the "Effective Date"), by and among
XXXXX-XXXXXXX ELECTRONICS CORPORATION, an Illinois corporation (the
"Company"), XXXXX INDUSTRIES, INC., an Illinois corporation (the
"Representative"), XXXXX X. XXXXXXX, XX. ("Xxxxxxx") and XXXX X. XXXXXX
("Xxxxxx").
WHEREAS, the Company, the Representative, Xxxxxxx and Xxxxxx
entered into that certain Sales Representative Agreement on December 9,
1998 (the "Original Agreement"); and
WHEREAS, the parties desire to enter into this Amendment and modify
certain terms and provisions of the Original Agreement as of the
Effective Date;
NOW, THEREFORE, in consideration of the premises and mutual
covenants and agreements contained herein and other valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Defined Terms. Capitalized terms used in this Amendment and
not otherwise defined shall have the same meaning set forth in the
Original Agreement.
2. Section 3 of the Original Agreement is hereby deleted in its
entirety and replaced with the following:
3. Exclusivity. The Representative shall be the Company's
exclusive sales representative for the Products for the Markets in the
United States of America, Canada and Mexico (the "Territory") only for
the accounts listed on Exhibit A attached hereto (the "Current Accounts")
and for New Accounts.
4. Section 5(a), (b), (c), (d) and (d)(sic) of the Original
Agreement are hereby deleted in their entirety and replaced with the
following:
5. Commissions:
(a) Monthly Commission. On the 45th day after the end
of each month, the Company shall pay to the
Representative a commission (the "Monthly
Commission") consisting of:
(i) a commission of 2.70% of Net Sales of Products
in the Markets to the Current Accounts for such
month; plus
(ii) a commission of 1.50% of Net Sales of T-models,
excluding consigned panels and controllers for
such month.
(b) New Customer Commission. In addition to the
commission payable pursuant to Section 5(a), the
Company shall pay to the Representative a commission
of 4.0% of the Net Sales of Products to New Accounts
for the first twenty-four (24) months of Net Sales
to such New Accounts. After the first twenty-four
(24) months, the Company shall pay the
Representative the rate of commission listed in
Section 5(a) for such Net Sales to New Accounts.
(c) Omitted.
(d) Excluded Transactions. Notwithstanding Section 5(a)
above, the Company shall pay no commission on the
following transactions:
(i) Service sales, including parts, labor, finished
goods and refurbished monitors to any operators
and distributors;
(ii) Sales to OEM accounts other than those listed
on Exhibit A attached hereto or are New
Accounts;
(iii) Sales to the Representative and its
affiliates; provided that the Company gives
such companies the best available export
pricing and terms.
(d)-1 All Commissions to be paid to the
Representative hereunder shall be based upon the
Company's invoice price to customers for its
Products, excluding amounts invoiced for taxes,
freight, C.O.D. charges or insurance.
5. After Section 5(h), the following new Section 5(i) shall be
added:
(i) On all orders accepted by the Company, the Company agrees
to not negotiate a commission below 2.0% to the Sales
Representative regardless of the selling price or margin.
Any decrease in commission will be negotiated and agreed
upon in writing by Xxxxxx or Xxxxxxx only if the
cumulative gross margin or sales to a Current Account or
New Account is less than 12%. This agreed commission
percentage excludes t-models and dollar xxxx validation
sales.
6. Exhibit B and C of the Original Agreement are hereby deleted
in their entirety.
7. Exhibit A of the Original Agreement is hereby deleted in its
entirety and replaced with the following:
EXHIBIT A
Current Accounts
Customer A Customer B Customer C
Customer D Customer E Customer F
Customer G Customer H Customer I
Customer J Customer K Customer L
Customer M Customer N Customer O
Customer P Customer Q Customer R
Customer S Customer T Customer U
Customer V Customer W Customer X
Customer Y Customer Z Customer AA
Customer BB Customer CC
8. All other terms and conditions of the Original Agreement shall
remain in full force and effect.
9. This Amendment may be executed in counterparts and shall
together constitute the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
as of the date first above written.
XXXXX-XXXXXXX ELECTRONICS CORPORATION XXXXX INDUSTRIES, INC.
By: Xxxxxxx Xxxxx By: Xxxxx X. Xxxxxxx, Xx.
Xxxx X. Xxxxxx
AMENDMENT NO. 1 TO PROMISSORY NOTE
This AMENDMENT NO. 1 to Promissory Note (the "Amendment") is made
this 30th day of August, 1999, effective as of September 1, 1999 by
Xxxxx Industries, Inc., an Illinois corporation (the "Industries"),
Xxxxx X. Xxxxxxx, Xx., ("Xxxxxxx"), and Xxxx X. Xxxxxx ("Xxxxxx")
(Industries, Xxxxxxx and Xxxxxx are referred to herein as a "Borrower"
and collectively as the "Borrowers"), to the order of Xxxxx-Xxxxxxx
Electronics Corporation, an Illinois corporation (the "Lender"). This
Amendment modifies certain terms and provisions of that certain
Promissory Note made by Borrowers to Lender as of December 9, 1998 (the
"Original Note"). Capitalized terms used herein and not otherwise
defined shall have the meaning set forth in the Original Note.
The undersigned hereby agree to amend the Note as follows:
1. Commencing with the payment of the Monthly Installment for August
2000, the Interest Rate shall be equal to Prime Rate plus 200 basis
points.
2. Section 1.4 shall be deleted in its entirety and replaced with the
following language:
1.4 Principal at Maturity. The entire unpaid principal balance of
the Loan shall be due and payable on the earlier to occur of (i) August
15, 2001 or (ii) the date which is six (6) months after the date notice
of termination of the Sales Representative Agreement is given (the
"Maturity Date").
3. Schedule A shall be deleted in its entirety and replaced with the
attached Schedule A.
4. All other terms and conditions of the Original Note shall remain in
full force and effect.
5. This Amendment may be executed in counterparts and shall together
constitute the same Note.
IN WITNESS WHEREOF, each of the undersigned have caused this
Amendment to be executed as of the date first written above.
XXXXX INDUSTRIES, INC.
By: XXXXX X. XXXXXXX, XX.
XXXX X. XXXXXX
VOTING RIGHTS AGREEMENT
This AGREEMENT dated as of the 30th day of August, 1999, by and
among Xxxx X. Xxxxxx ("Xxxxxx"), Xxxxx-Xxxxxxx Electronics Corporation,
an Illinois corporation (the "Company"), Xxxxx Industries, Inc., an
Illinois corporation ("JI"), and Xxxxx X. Xxxxxxx, Xx. individually and
as trustee of the Xxxxx X. Xxxxxxx, Trust, UTA Dated 01-23-91
(collectively "Xxxxxxx") (each of Xxxxxx, XX and Xxxxxxx, a
"Shareholder");
WHEREAS, Xxxxxxx and Xxxxxx own beneficially all of the outstanding
Capital Stock of JI and Xxxxxxx owns beneficially 588,647 of the issued
and outstanding Common Shares of the Company (which Common Shares,
together with any Common Shares of the Company hereafter acquired by
Xxxxxxx or JI are hereinafter referred to as "Xxxxxxx' Common Shares");
WHEREAS, all of such Xxxxxxx' Common Shares are pledged to various
pledgees as collateral for loans; and
WHEREAS, the Shareholders deem it to be in their mutual best
interest and in the best interests of all of the Company's shareholders
that an agreement be entered into concerning the voting of the parties'
Common Shares for directors of the Company; and
WHEREAS, the Company is amending its Sales Representative Agreement
(the "Representative Agreement") with JI, Xxxxxxx and Xxxxxx
concurrently with the execution hereof;
NOW, THEREFORE, in consideration of the premises, mutual covenants
and agreements contained herein, it is hereby agreed as follows:
1. Voting For Directors.
(a) Until Termination of the Representative Agreement (as
hereinafter defined) or December 31, 2003, whichever shall first occur,
the Shareholders shall vote (and, if applicable, shall direct all
pledgees to vote) their Common Shares of the Company at every election
of directors of the Company, for the election of such slate of nominees
as the nominating committee of the Board of Directors (or if there is no
nominating committee, then such other committee, or the Board of
Directors, as the case may be, performing such function) shall
designate. Until Termination of the Representative Agreement or
December 31, 2003, whatever shall first occur, neither Xxxxxxx nor
Xxxxxx shall be a nominee, stand for election or serve as a member of
the Board of Directors.
(b) The obligations of the parties under this paragraph 1 shall
terminate with respect to any Common Shares of the Company which they
transfer in a bona fide sale or exchange for value.
(c) The obligations of each of the parties under this Agreement
shall also be binding upon any of their transferees, except as otherwise
provided herein.
2. Death. Within ninety (90) days after the death of each
Shareholder, the executor or administrator of any Shareholder's estate
and the successor trustee of any party shall notify the Company of the
provisions of his will and the provisions of a trust, if any, governing
the distribution of that Shareholder's Common Shares. Such executor or
administrator and successor trustee and all beneficiaries and heirs,
devises and legatees of such party, shall be bound by the provisions of
paragraph 1 hereof.
3. Additional Definition. "Termination of the Representative
Agreement" shall be deemed to occur if such agreement terminates under
paragraph 14 thereof, except that in the event of a termination of the
Representative Agreement by the Company under paragraph 14(c) thereof,
for purposes of this Agreement, Termination shall be deemed to occur on
the later to occur of (a) December 31, 2003, or (b) at the end of any
additional period for which the Representative Agreement had then been
automatically renewed under paragraph 14(a) thereof.
4. Endorsement on Stock Certificates. All certificates
representing Common Shares shall be endorsed as follows:
"The voting of the shares representated hereby are subject to
restrictions and agreements contained in an agreement dated as
of August 30, 1999 by and among Xxxxx-Xxxxxxx Electronics
Corporation and certain of its shareholders, a copy of which
is on file with the Secretary of Xxxxx-Xxxxxxx Electronics
Corporation."
5. Termination and Amendment. Anything to the contrary
notwithstanding, this Agreement shall terminate and have no further
effect on the earlier of (a) any act or event which provides for
termination elsewhere in this Agreement, or (b) the Termination of the
Representative Agreement, or (c) December 31, 2003. This Agreement may
be altered, amended or terminated (except as otherwise provided herein)
at any time only pursuant to an agreement in writing, executed by or on
behalf of the Company, JI and such of the other parties hereto (or their
successors).
6. Entire Agreement. This Agreement constitutes the entire
agreement and final understanding of the parties with respect to the
subject matter hereof and supersedes and terminates any and all prior
voting agreements, prior and/or contemporaneous communications and/or
agreements between the parties, whether written or verbal, express or
implied, direct or indirect, relating in any way to the subject matter
hereof including, but not limited to the Voting Agreement dated April
26, 1994, the Voting Rights Agreement dated February 29, 1996 and the
Voting Rights Agreement dated December 9, 1998.
7. Notices. All notices, offers and acceptances hereunder shall
be in writing and shall be deemed to be communicated (except as
otherwise provided herein) when delivered in person or deposited in the
U.S. mail, postage prepaid, by registered mail, addressed to the party
concerned at the address appearing on the Company's records or at such
other or additional place as such party may designate by notice given in
accordance with the provisions hereof to the other parties.
8. Benefit. This Agreement shall be binding as provided herein
upon the parties, their heirs, devisees, legatees, beneficiaries, legal
representatives, successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year first above written.
XXXXX-XXXXXXX
ELECTRONICS CORPORATION XXXXX INDUSTRIES, INC.
By: Xxxxxxx Xxxxx By: Xxxxx X. Xxxxxxx, Xx.
Xxxxx X. Xxxxxxx, Xx.
Trust UTA Dated 01-23-91
Xxxx X. Xxxxxx
