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 XXXXX XXXXXXXXX ("Huberfeld") and XXXXX
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. Huberfeld and Xxxxxx each
delivered to the Company $712,002 (an aggregate of $1,424,004) on or
before January 31, 1997, as payment of the exercise price of a portion
of the Outstanding Warrants. Huberfeld and Xxxxxx further agree to
deliver an additional $899,100.40 each (an aggregate of $1,798,200.80)
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 227,840 shares of common stock, 113,920
shares registered in the name of Xxxxx Xxxxxxxxx and 113,920 shares
registered in the name of Xxxxx Xxxxxx. An additional 40,840 shares
(20,420 shares each) 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 372,576 shares (186,288 shares each), including
the 40,840 shares (20,420 shares each), for a grand total of 600,416
shares (300,208 shares each) issued to Huberfeld and 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 either
Huberfeld or 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 such individual shall be $6.25 per share
of Common Stock and the shares of stock reserved for such individual
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 Huberfeld and 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 Huberfeld or 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
Huberfeld:
/s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx
Address: 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx:
/s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx
Address: 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
