SECOND AMENDMENT TO AGREEMENT TO ISSUE WARRANTS
THIS SECOND AMENDMENT TO AGREEMENT TO ISSUE WARRANTS (this "Amendment") is
entered into as of June 5, 1997, by and among XXXXXX XXXXX INCORPORATED, a
Nevada corporation (the "Company"), and XXXXXX XXXXXX ("Xxxxxx"), based on the
following premises.
Premises
A. The parties entered into an Agreement to Issue Warrants dated January
9, 1997, as amended April 16, 1997 (the "Agreement"), pursuant to which the
Company agreed, subject to certain conditions, to issue warrants to purchase
shares of stock of the Company.
B. The parties wish to amend the terms of the Agreement as set forth in
this Amendment and to confirm all the others terms and provisions of the
Agreement.
Agreement
NOW, THEREFORE, based on the foregoing premises, which are incorporated
herein by this reference, and for and in consideration of the mutual covenants
and agreements herein set forth and the mutual benefit to the parties to be
derived therefrom, it is hereby agreed as follows:
1. Exercise of Outstanding Warrants. Paragraph 1.2 of the Agreement is
modified to read in its entirety as follows:
1.2 Exercise of Outstanding Warrants. Xxxxxx delivered to the
Company $889,393 on or before January 31, 1997, as payment of the
exercise price of a portion of the Outstanding Warrants. Xxxxxx
further agrees to deliver an additional $1,098,107 to the Company on
or before the date that is 90 days subsequent to the effective date of
the Registration Statement referred to in paragraph 5.1 of this
Agreement to complete the exercise of the Outstanding Warrants. On
receipt of the first payment, the Company delivered certificates
representing 142,303 shares of common stock registered in the name of
Xxxxxx. An additional 25,507 shares are held in reserve and will be
issued on timely payment of the remaining amount. On receipt of the
final payment on or before 90 days subsequent to the effective date of
the Registration Statement referred to paragraph 5.1 of this
Agreement, the Company shall issue a total of 232,697 shares,
including the 25,507 shares held in reserves, for a grand total of
375,000 shares issued to Xxxxxx on exercise of the Outstanding
Warrants.
3. Failure to Make Payments. Paragraph 1.3 of the Agreement is hereby
amended to read in its entirety as follows:
1.3 Failure to Make Payments. In the event that Xxxxxx fails to
make the payment due on or before 90 days subsequent to the effective
date of the Registration Statement, the exercise price of all of the
Outstanding Warrants (including those previously exercised) held by
Xxxxxx shall be $6.25 per share of Common Stock and the shares of
stock reserved for Xxxxxx under the provisions of 1.2 shall not be
issued.
4. Issuance of Additional Warrants. Paragraph 1.4 of the Agreement is
modified to read in its entirety as follows:
1.4 Issuance of Additional Warrants. On timely exercise of the
Outstanding Warrants by the date specified in this Agreement, the
Company agrees to issue new warrants to Xxxxxx to acquire the same
number of shares of Common Stock that were originally subject to the
Outstanding Warrants, such new warrants to have an exercise price of
$8.75 per share of Common Stock (the "$8.75 Warrants"). The $8.75
Warrants shall be exercisable at any time after August 1, 1997, and
prior to the close of business on April 16, 2001. The $8.75 Warrants
shall be in the form attached hereto as Exhibit "A" and incorporated
herein by this reference.
All subsequent references in the Agreement to the "$10.75 Warrants" shall be
deemed to be references to the "8.75 Warrants."
5. Registration Rights. Paragraph 5.1 of the Agreement shall be amended
by replacing the opening words of the first sentence "On or before April 30,
1997" with the words "Within 20 days of the request of Xxxxxx."
6. Ratification of the Agreement. Except as specifically provided in
paragraphs 1 through 5 of this Amendment, the parties hereby specifically
ratify, confirm, and adopt as binding and enforceable, all of the terms and
conditions of the Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first above written.
The Company:
Xxxxxx Xxxxx Incorporated
By /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, President
Xxxxxx:
/s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
Address: 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
