EXHIBIT 10.5
AMENDMENT
TO
STOCK PURCHASE AGREEMENT
This Amendment is being executed and delivered by Xxxxxxxxxx
Laboratories, Inc., a Texas corporation (the "Company"), for the
purpose of amending that certain Stock Purchase Agreement (herein so
called) between the Company and the Buyer whose name is set forth on
the signature page hereof, relating to the sale by the Company to the
Buyer of shares of the Company's Series E Convertible Preferred Stock
(the "Preferred Stock").
WHEREAS, on October 11, 1996, the Company filed with the
Secretary of State of Texas a Statement of Resolution establishing the
Preferred Stock (the "Statement of Resolution"); and
WHEREAS, Section 6(b) of the Statement of Resolution requires the
Company, under certain circumstances, to take, at its election, one of
three specified actions (the action relating to shareholder approval
that is specified in Section 6(b)(i) of the Statement of Resolution is
herein called the "Shareholder Approval Action", the action relating to
obtaining a waiver of or exception to shareholder approval that is
specified in Section 6(b)(ii) of the Statement of Resolution is herein
called the "Waiver Action", and the action relating to redemption of
the Preferred Stock specified in Section 6(b)(iii) of the Statement of
Resolution is herein called the "Redemption Action"); and
WHEREAS, the Company has agreed to take such actions in a
specific order of priority, as set forth herein;
NOW, THEREFORE, the Company hereby agrees to amend the Stock
Purchase Agreement as follows:
A. Section 4 of the Stock Purchase Agreement is hereby amended
to add the following paragraph at the end of such Section:
g. Subject to the occurrence of the closing hereunder,
the Company hereby agrees with Buyer that, at such time as the
Company is required to take the Shareholder Approval Action, the
Waiver Action or the Redemption Action specified in Section
6(b)(i), (ii) and (iii) of the Statement of Resolution, the
Company will elect to take the Redemption Action, unless the
Board of Directors of the Company determines, in its reasonable
discretion, that taking the Redemption Action will result in a
financial hardship on the Company, and if the Board of Directors
of the Company determines that taking the Redemption Action will
result in such financial hardship, the Company will then use
commercially reasonable efforts to obtain the waiver or exception
described in the Waiver Action within the time period specified
for such action, and, only if the Company determines that it is
unable to obtain such waiver or exception within such specified
time period, will the Company then elect to take the Shareholder
Approval Action.
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B. As amended by this Amendment, the Stock Purchase Agreement
is in all respects ratified and confirmed, and the Stock Purchase
Agreement, as so amended, shall be read, taken and construed as one and
the same instrument. This Amendment shall become effective as of
October 15, 1996.
IN WITNESS WHEREOF, the Company has caused this Amendment to be
signed by its duly authorized officer, as of October 15, 1996.
XXXXXXXXXX LABORATORIES, INC.
By:__________________________
Xxxxx X. Xxxxxxxxxxx
Chief Financial Officer
Name of Buyer:
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