Exhibit 10.1
WAIVER
AND
AMENDMENT NO. 1
TO
SHARE PURCHASE AGREEMENT
THIS WAIVER AND AMENDMENT NO. 1 TO SHARE PURCHASE AGREEMENT ("Amendment No.
1") is made and entered into as of the date set forth below, by and between
XXXXX BROTHERS, INC., a Delaware corporation (the "Company"), and BFS SPECIAL
OPPORTUNITIES TRUST PLC, an investment trust organized under the laws of the
United Kingdom ("BFS").
WHEREAS, the Company and BFS entered into that certain Share Purchase
Agreement (the "Original Agreement"), dated December 27, 2001, pursuant to which
BFS purchased 586,855 shares of the Company's common stock, par value $0.01 per
share (the "Shares"), on the terms and conditions set forth in the Original
Agreement; and
WHEREAS, pursuant to Article 7 of the Original Agreement, the Company
granted certain registration rights to BFS with respect to the registration of
Registrable Securities (as defined in the Original Agreement), which term
includes the Shares, pursuant to the Securities Act of 1933, as amended (the
"1933 Act"); and
WHEREAS, pursuant to Section 7.2 of the Original Agreement, the Company
agreed to use its best efforts to file with the Securities and Exchange
Commission ("SEC"), within 120 days after the Closing Date (as defined in the
Original Agreement), a registration statement under the 1933 Act for the purpose
of registering the Registrable Securities; and
WHEREAS, BFS has determined to waive the provisions of Section 7.2 of the
Original Agreement including, without limitation, the requirement that the
registration statement with respect to the Registrable Securities be filed with
the SEC within the above-referenced 120-day period; and
WHEREAS, in consideration of such waiver, the Company has agreed with BFS
to amend Section 7.2 of the Original Agreement for the purpose of providing BFS
with a one-time demand registration right.
NOW THEREFORE, in consideration of the mutual promises herein contained,
the Company and BFS hereby agree as follows:
1. In consideration of the amendment of Section 7.2 of the Original
Agreement pursuant to this Amendment No. 1, BFS hereby waives the provisions of
Section 7.2 contained in the Original Agreement including, without limitation,
the requirement that a registration statement with respect to Registrable
Securities (as defined in the Original Agreement) be filed with the SEC within
the 120-day period described therein.
2. Section 7.2 of the Original Agreement is deleted in its entirety
and replaced with the following:
"7.2 Demand Registration Rights.
(a) If at any time during which BFS Special Opportunities Trust PLC,
an investment trust organized under the laws of the United Kingdom ("BFS"),
owns Registrable Securities (the "BFS Registrable Securities"), the Company
shall receive a written request from BFS that the Company file a
registration statement under the 1933 Act covering such number of BFS
Registrable Securities specified by BFS, then the Company shall, subject to
the limitations of this Section 7.2, use reasonable efforts consistent with
the terms contained in this Section 7.2 to effect the registration under
the 1933 Act of all BFS Registrable Securities that BFS requests to be
registered as soon as practicable thereafter, and to facilitate the sale
and distribution of all or such portion of such BFS Registrable Securities
as are permitted to be registered pursuant to the terms of this Section
7.2. If BFS intends to distribute the BFS Registrable Securities covered by
its request by means of an underwriting, it will so advise the Company as
part of its request made pursuant to this Section 7.2, and the managing or
lead managing underwriter of such offering shall be an investment banking
firm selected by the Company and reasonably acceptable to BFS.
(b) The Company shall not be obligated to take any action to effect
any registration, qualification or compliance pursuant to this Section 7.2,
(i) in any particular jurisdiction in which the Company would be required
to execute a general consent to service of process in effecting such
registration, unless the Company is already subject to service in such
jurisdiction and except as may be required by the 1933 Act, or (ii) if,
within fifteen (15) days after receipt by the Company of a request for
registration pursuant to Section 7.2(a), the Company gives notice to BFS
that it is engaged, or has a bona fide intention to engage, within ninety
(90) days of the date of such request, in a firmly underwritten public
offering as to which BFS is entitled to include BFS Registrable Securities
pursuant to Section 7.3 hereof. Subject to the foregoing clauses (i) and
(ii) and to Section 7.2(f) hereof, the Company shall use reasonable efforts
to file a registration statement covering the BFS Registrable Securities so
requested to be registered as soon as practicable after receipt of the
request of BFS pursuant to this Section 7.2.
(c) If the BFS Registrable Securities will be distributed by means of
an underwriting, BFS shall enter into an underwriting agreement with the
managing or lead managing underwriter in the form customarily used by such
underwriter with such changes thereto as the parties thereto shall agree.
(d) Upon a registration request by BFS pursuant to Section 7.2(a),
unless any managing or lead managing underwriter objects thereto, the
Company may include in such registration securities for offering by the
Company and any other holder of securities who has the right to request the
Company to register securities of the Company in such registration, it
being understood, however, that the Company's and such other holder's right
of inclusion in such registration shall be subordinated to, and not pari
passu with, the rights of BFS under this Section 7.2.
(e) Notwithstanding anything to the contrary contained herein, the
Company need not cause a registration statement filed pursuant to the
provisions of this Section 7.2 to become effective under the 1933 Act on
more than one (1) occasion; provided, however, that any registration
requested by BFS pursuant to this Section 7.2 which shall not have become
effective or remained effective in accordance with the provisions of
Section 7.5 hereof shall not be deemed to be a registration for any purpose
hereunder.
(f) Notwithstanding the foregoing, if the Company shall furnish to BFS
a certificate signed by the Chief Executive Officer of the Company stating
that in the good faith judgment of the Board of Directors of the Company,
it would be seriously detrimental to the Company and its shareholders for
such registration statement to be filed and it is therefore essential to
defer the filing of such registration statement, the Company may direct
that a registration pursuant to this Section 7.2 be delayed for so long as
the basis for the Board of Directors' judgment exists; provided; however,
that (i) the Company may not delay compliance with this Section 7.2 for a
period of more than sixty (60) days from the date notice is first received
by the Company from BFS pursuant to subsection (a) above, and (ii) the
Company may not defer its obligation in this manner more than once.
(g) The rights of BFS pursuant to this Section 7.2 may not be
transferred or assigned by BFS to any other party without the prior written
consent of the Company."
3. The parties hereto hereby reaffirm all other terms and conditions
of the Original Agreement. This Amendment No. 1 amends the Original Agreement
only to the extent specified herein and shall not constitute an amendment to any
other provision of the Original Agreement. From and after the date hereof, all
references to the Original Agreement in the Original Agreement and other
documents referred to therein shall be references to the Original Agreement as
amended hereby.
4. This Amendment No. 1 may be executed in several counterparts, each
of which shall be deemed an original, but all of which shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to be duly
signed and delivered as of the 25th day of April, 2002.
XXXXX BROTHERS, INC.
BY: ____________________________________
Name:
Title:
BFS SPECIAL OPPORTUNITIES TRUST PLC
BY: ____________________________________
Name:
Title:
