EXHIBIT 10.2
AGREEMENT TO SUSPEND DIVIDENDS
AND CONSENT OF HOLDERS OF SERIES B
CONVERTIBLE PREFERRED STOCK OF
AMEN PROPERTIES, INC.
This Agreement to Suspend Dividends and Consent of Holders of Series
B Convertible Preferred Stock of Amen Properties, Inc. (this "Agreement") is
made and entered into as of May 30, 2003 by and among Amen Properties, Inc. (the
"Company") and all of the holders of the outstanding shares of Series B
Convertible Preferred Stock of Amen Properties, Inc. (the "Series B
Shareholders"), with reference to the following facts:
A. The Certificate of Designation of Series and Determination of Rights and
Preferences of Series B Convertible Preferred Stock of the Company (the
"Certificate of Designation") provides in Section 2 that the holders of the
Series B Convertible Preferred Stock of the Company (the "Series B Preferred")
are entitled to receive a six percent (6%) per annum dividend payable in cash or
in shares of common stock of the Company at the discretion of the Company's
Board of Directors (the "Series B Dividend").
B. The Series B Shareholders have agreed to suspend the accrual and payment
of the Series B Dividends effective as of April 1, 2003 and amend Section 2 of
the Certificate of Designation with respect thereto, subject to the immediate
payment of all dividends on the Series B Preferred accrued through March 31,
2003 in accordance with the Certificate of Designation.
NOW, THEREFORE, FOR AND IN CONSIDERATION of the mutual promises,
covenants and agreements set forth herein, the parties hereto agree as follows:
1. Suspension of Dividends. The Series B Shareholders agree that,
notwithstanding Section 2 of the Certificate of Designation, no Series B
Dividends will accrue or be payable from and after April 1, 2003 until the
earlier of (a) subsequent written agreement of all of the parties hereto, or (b)
the filing of the Amendment (as defined herein) with the State of Delaware. Upon
the filing of the Amendment, the terms of the Amendment shall control and govern
the payment of dividends with respect to the Series B Preferred.
2. Consent to Amendment. Each Series B Shareholder hereby approves, adopts
and agrees to the amendment to the Certificate of Designation attached hereto as
Exhibit "A" and made a part hereof for all purposes (the "Amendment"), and shall
vote in favor of the Amendment at any shareholders meeting called for that
purpose.
3. Payment of Accrued Dividend. The Company's Board of Directors shall
promptly declare and cause to be paid the Series B Dividend which is accrued and
unpaid through March 31, 2003 in accordance with the Certificate of Designation.
4. Company Approval of Amendment. The Company's Board of Directors shall
approve the Amendment, and submit the Amendment as an amendment to the Company's
Certificate of Incorporation effecting the Certificate of Designation for
approval by the shareholders of the Company in accordance with Delaware law at
such time as determined by the Board but in no event later than the 2004 annual
meeting of the Company's shareholders.
5. Miscellaneous.
(a) This Agreement is binding upon and inures to the benefit of the parties
hereto and their respective heirs, personal representatives, successors and
assigns.
(b) This Agreement shall be governed by the laws of the State of Texas,
without regard to the conflicts of laws principals of such state, except to the
extent Delaware General Corporation Law applies to the Company as a Delaware
corporation.
(c) This Agreement may be amended only by an agreement in writing signed by
all of the parties hereto.
(d) If any provision of this Agreement is declared invalid or unenforceable
by a court of competent jurisdiction, such invalidity or unenforceability shall
not effect the remainder of this Agreement which shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
[Signatures of Series B Shareholders and the Company]
EXHIBIT "A"
to
Agreement to Suspend Dividends and Consent of
the Holders of Series B Convertible Preferred Stock
of Amen Properties, Inc.
dated May 30, 2003
AMENDMENT TO
CERTIFICATE OF DESIGNATION OF SERIES AND
DETERMINATION OF RIGHTS AND PREFERENCES OF
SERIES B CONVERTIBLE PREFERRED STOCK OF
AMEN PROPERTIES, INC.
Section 2 of the Certificate of Designation of Series B and Determination
of Rights and Preferences of Series B Convertible Preferred Stock of
Xxxxxxxxx.xxx, Inc. (now Amen Properties, Inc.), is amended in its entirety to
read as follows:
SECTION 2. DIVIDENDS.
From the date of issuance of shares of Series B Preferred Stock
through March 31, 2003, the holders of outstanding shares of Series B Preferred
Stock shall be entitled to receive a dividend of six percent (6%) per annum,
payable, at the election of the Board, out of funds legally available for such
purpose or in shares of Common Stock, in preference and priority to any payment
of any dividend on Common Stock. If the dividend is to be paid in Common Stock,
the number of shares shall be determined by dividing the dividend payable by the
average closing price of the Common Stock for the sixty (60) trading days prior
to the dividend declaration or redemption of the Series B Preferred Stock. Such
dividend shall be payable only when, as and if declared by the Board, and such
dividends shall accrue and be cumulative; provided, that all accrued and unpaid
dividends shall be so declared and paid within ninety (90) days of March 31,
2003. From and after April 1, 2003, no dividends shall accrue or be payable in
respect to the Series B Preferred Stock, except that the holders of the Series B
Preferred Stock shall be entitled to receive any dividend declared in respect of
the Common Stock based upon the number of shares of Common Stock into which the
outstanding shares of Series B Preferred Stock are convertible at the time the
dividend is declared as if such shares of Common Stock issuable upon conversion
of the Series B Preferred Stock were outstanding for purposes of the Common
Stock dividend.
