EXHIBIT 10.5
SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT
--------------------------------------------
THIS SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT (the "Amendment") is
entered into as of November 7, 1996, by and among XXXXXX PRODUCTS, INC., a
California corporation ("Seller"), XXXXXX INTERNATIONAL COMPANY, LTD., a private
Thailand limited company ("Company"), and THE L.L. XXXXXXXXXXXXX CO., INC., a
California corporation ("Buyer").
R E C I T A L S :
- - - - - - - -
A. Seller, Company and Buyer are parties to that certain Stock
Purchase Agreement dated as of September 30, 1996, as amended by that certain
First Amendment to Stock Purchase Agreement dated as of October 15, 1996 (as
amended, the "Purchase Agreement").
B. Seller, Company and Buyer desire to amend the Purchase Agreement
in the manner set forth herein.
A G R E E M E N T :
- - - - - - - - -
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants contained herein, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Unless otherwise specified, capitalized terms used herein shall
have the meaning assigned to such terms in the Purchase Agreement.
2. The parties hereto hereby agree that the Purchase Agreement is
hereby amended to replace all references to "Xxxxxx International" with "Xxxxxx
International Company, Ltd."
3. The parties hereto hereby agree to substitute all references to
"Financial Statements" contained in the Purchase Agreement with "Special Purpose
Financial Statement", defined in its entirety to read as follows:
"Special Purpose Financial Statement shall mean the balance sheet
-----------------------------------
for the Company as of, and for the year ended, June 30, 1996, together with
the notes thereto and the pro-forma balance sheet of the Company as
prepared by the directors of the Company, which was audited and reported on
by Deloitte Touche Tohmatsu, adjusted in the manner discussed in Section
2.2 hereof."
4. The parties hereto hereby agree that the definition of "Settlement
Date" contained in Section 1.1 of Article I of the Purchase Agreement is hereby
amended and restated in its entirety to read as follows:
"Settlement Date shall mean November 8, 1996, or such other date
---------------
as shall be agreed to in writing by Buyer and Seller."
5. The parties hereto hereby agree that Section 3.1 of Article III of
the Purchase Agreement is hereby amended and restated in its entirety to read as
follows:
"3.1 Settlement
----------
The closing of the transactions contemplated herein (the
"Settlement") shall be held at 10:00 a.m. local time on the Settlement Date
at a location mutually agreed to by the parties hereto, unless the parties
hereto otherwise agree."
6. The parties hereto hereby agree that the first four (4) sentences
of Section 4.1(g) of Article IV of the Purchase Agreement are hereby deleted and
replaced by the following:
"The Special Purpose Financial Statement as of and for the year
ended June 30, 1996 has been examined by Deloitte Touche Tohmatsu,
employees of which are the Company's statutory auditors. The Report On The
Special Purpose Financial Statement, prepared by Deloitte Touche Tohmatsu,
opines that the Special Purpose Financial Statement presents fairly, except
for the intercompany receivable and payable amounts and the investment in
another company, in all material respects, the assets and liabilities of
the Company as of June 30, 1996 as adjusted per the Stock Purchase
Agreement, and has been prepared in conformity with generally accepted
accounting principles consistently applied. At the Balance Sheet Date,
there were no material liabilities of the Company required to be reflected
on the Special Purpose Financial Statement in accordance with generally
accepted accounting principles other than the liabilities shown or
reflected in the Special Purpose Financial Statement or the notes thereto."
7. The parties hereto hereby agree that Section 12.1 of Article XII
of the Purchase Agreement is hereby amended to change the date contained therein
to November 8, 1996.
-2-
8. The parties hereto hereby agree that Section 12.3 of Article XII of
the Purchase Agreement is hereby amended to add the following information:
"If to the Seller: Xxxxxx Products, Inc.
0000 X. Xxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxx
Telecopy: (000) 000-0000
With a copy to (which shall
not constitute notice): Jeffer, Mangels, Xxxxxx & Marmaro
2121 Avenue of the Stars, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx, Esq.
Telecopy: (000) 000-0000
If to the Company: Xxxxxx International Company, Ltd.
00/00 Xxx 0, Xxxx Xxxx Xxxx
Xxxxxx, Xxxxxxx 00000
Xxxxxxxx
Attn: Khun Thip Nakornratana
Telecopy: (011) (000) 000-0000
With a copy to (which shall
not constitute notice): Xxxxxxxx and Thong-Ek
7th Floor, Bubhajit Building
00 Xxxxx Xxxxxxx Xxxx
Xxxxxxx 00000, Xxxxxxxx
Attn: Xxxxxx Xxxxxxxx, Esq.
Telecopy: (011) (000) 000-0000
9. The parties hereto hereby agree that Schedule 2.2 shall be
replaced in its entirety by "Schedule of Assets Being Acquired and Liabilities
Assumed as at September 30, 1996 per the Stock Purchase Agreement", hereby
attached. Accordingly, all references to Schedule 2.2 in the Purchase Agreement
are hereby amended to refer to the "Schedule of Assets Being Acquired and
Liabilities Assumed as at September 30, 1996 per the Stock Purchase Agreement".
-3-
IN WITNESS WHEREOF, the parties hereto have executed this Amendment,
or have caused this Amendment to be duly executed on their respective behalf by
their respective officers thereunto duly authorized, as of the day and year
first above written.
"Seller" XXXXXX PRODUCTS, INC., a California corporation
By: /s/ XXXXXX XXXXXXX
------------------------------------------
Name: Xxxxxx Xxxxxxx
-------------------------------------
Title: President
------------------------------------
"Company" XXXXXX INTERNATIONAL COMPANY, LTD., a private
Thailand limited company
By: /s/ XXXXXX XXXXXXX
------------------------------------------
Name: Xxxxxx Xxxxxxx
-------------------------------------
Title: President
-----------------------------------
"Buyer" THE L.L. XXXXXXXXXXXXX CO., INC., a California
corporation
By: /s/ XXXXXXX X. XXXXXX
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
-------------------------------------
Title: Chief Financial Officer
------------------------------------
-4-
