EXHIBIT 10.15
SECOND AMENDMENT TO
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BUSINESS PURCHASE AGREEMENT
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This second Amendment to Business Purchase Agreement (the "Second
Amendment") is entered into by and among Xxxxxx & Xxxxxxx, Ltd., a Mississippi
corporation, formerly known as X. X. Xxxxxxxx Holdings, Inc. ("Buyer"), X. X.
Xxxxxxx Associates, Inc., a Louisiana corporation, formerly known as Xxxxxx &
Xxxxxxx, Ltd. ("Seller"), and Xxxxxx X. Xxxxxxx, an individual resident of the
State of Louisiana ("Shareholder").
WHEREAS, Buyer, Seller and Shareholder (collectively referred to herein as
the "Parties" and individually as a "Party") executed that certain Business
Purchase Agreement dated November 22, 1996 (the "Agreement"), and that certain
Amendment to Business Purchase Agreement dated December 3, 1996 (the "First
Amendment"); and
WHEREAS, the Parties have agreed to certain additional amendments to the
Agreement which each Party acknowledges and agrees will benefit that Party.
NOW, THEREFORE, in consideration of the premises and the mutual promises
and covenants contained in the Agreement, the First Amendment and in this Second
Amendment, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:
I. DEFINITIONS
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All capitalized terms used in this Second Amendment shall have the same
definitions as set forth in the Agreement, unless otherwise defined herein.
II. AMENDMENTS TO AGREEMENT
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1. Section 7(a) Market Share Payments, as amended by the First Amendment,
is hereby amended by the deletion of that Section in its entirety and the
substitution of the following provisions as Section 7(a):
(a) Market Share Payments. Buyer anticipates that its strongest
market for sales of its designs will be new-build independent leg
Xxxx-up or semi-submersible drilling units ("Drilling Units")
ordered by a domestic (U.S.A. headquartered) drilling company,
excluding any domestic drilling company, its subsidiaries or
affiliates, that builds its own Drilling Units pursuant to a
design which it owns ("Domestic Drillers"). Therefore, for a
period of ten (10) years beginning with the Closing Date (the
"Guaranty Period"), Buyer guarantees that for the three (3) year
period ending with the third anniversary of the Closing Date and
for each three year period thereafter ending with the fourth
through the tenth anniversaries of the Closing Date (each such
three year period shall be referred to as a "Construction
Period"), twenty percent (20%) of all new-build Drilling Units
ordered by Domestic Drillers whose keels are laid during a
Construction Period shall be constructed pursuant to the Vessel
Designs or designs subsequently created or developed by Buyer.
In the event Buyer fails to attain an average twenty percent
(20%) of such new-build Drilling Unit market in any Construction
Period, Buyer shall pay Seller the sum of $300,000.00 for each
Drilling Unit design sale by which Buyer is short of the twenty
percent (20%) goal up to a maximum payment from Buyer to Seller
of $1,000,000.00 for any Construction Period in which the
required market share is not attained. The sum required to be
paid to Seller shall be paid by Buyer within ninety (90) days
following the end of any Construction Period in which the
required market share is not attained. Buyer will maintain an
aggressive worldwide marketing staff to assure the market share
necessary to make the sales required herein. Within sixty (60)
days following the end of any Construction Period, Buyer shall
notify seller as to whether or not the required market share was
obtained by Buyer during the preceding Construction Period along
with proof of Buyer's sales in support thereof.
2. Section 7(b) Indexing of Payments is hereby amended by the deletion of
that Section in its entirety and the substitution of the following provisions as
Section 7(b):
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(b) The payment from Buyer to Seller described in Section 7(a) above
shall be increased on the first anniversary of the Closing Date
and on each subsequent anniversary thereof within the Guaranty
Period as follows: Buyer shall calculate the percentage increase
in the Consumer Price Index for All Urban Consumers-U.S. City
Average for All Items (unadjusted for seasonal change) published
by the Bureau of Labor Statistics of the United States Department
of Labor (the "Index") using the Index for the month in which the
Closing occurs as the Base Index number and the Index for the
same month of each subsequent year during the Guaranty Period as
the then current Index number. The current Index number shall be
divided by the Base Index number. From the quotient thereof,
there shall be subtracted the integer one (1) and any resulting
positive number shall be deemed to be the percent of increase in
the cost of living. The percentage of increase in the cost of
living multiplied by the payment from Buyer to Seller described
in Section 7(a) above shall be the increase required to be
determined by this Section.
required to be determined by this Section.
3. Section 10(d) Default is hereby amended by the deletion of that
Section in its entirety and the substitution of the following provisions as
Section 10(d):
(d) Default. In the event Buyer fails to make full payment of those
sums required to be paid to seller pursuant to the provisions of
Section 6 Post-Closing Fees and Section 7 Market Share and such
failure shall continue for a period of sixty (60) days following
written demand from Seller to Buyer for payment, Buyer shall then be
in default hereunder (the "Default Date") and the Assets, as they
exist on the Default Date, with the exception of the corporate name
"Xxxxxx & Xxxxxxx, Ltd.,"and any and all variations and uses of the
name as more fully defined below, shall be transferred to Seller and
all provisions of this Agreement, the Noncompetition Agreement and the
Consulting Agreement shall terminate as of the Default Date. In the
event of a default as defined above, Buyer shall, nevertheless, retain
the full and complete title to, ownership of and right to use the
corporate name or trade name "Xxxxxx & Xxxxxxx, Ltd.", any and all
variations and uses of the name Xxxxxx & Xxxxxxx and all trademarks,
logos, labels and other distinctive marks, badges or insignias
associated with such name, whether or not registered, and the goodwill
of Seller associated with such names or marks, including, but not
limited to, the trademark set forth on Schedule 1(a)(ii) to this
Agreement.
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III. MISCELLANEOUS
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1. Continuation of Agreement. Except as modified or amended by the First
Amendment or this Second Amendment, each and every provision of the Agreement
shall continue in full force and effect.
2. Counterparts. This second Amendment may be executed in multiple
counterparts, each with multiple signatures pages, and each counterpart shall
constitute one and the same agreement and shall be fully effective to bind the
Parties.
WITNESS THE SIGNATURES of the Parties this the _____ day of May, 1997.
BUYER:
XXXXXX & XXXXXXX, LTD.
(formerly X. X. Xxxxxxxx Holdings, Inc.)
By:_________________________________________
X. X. XXXXXXXX, CHAIRMAN OF THE
BOARD OF DIRECTORS
SELLER:
X. X. XXXXXXX ASSOCIATES, INC.
(formerly Xxxxxx & Xxxxxxx, Ltd.)
By:_________________________________________
XXXXXX X. XXXXXXX, CHAIRMAN OF
THE BOARD OF DIRECTORS
SHAREHOLDER:
____________________________________________
XXXXXX X. XXXXXXX
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